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High Court of Australia Transcripts |
Sydney No S349 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 OF THE COMMONWEALTH OF AUSTRALIA
First Respondent
THE REFUGEE REVIEW TRIBUNAL
Second Respondent
Ex parte -
APPLICANTS S349/2002
Applicants/Prosecutors
Office of the Registry
Sydney No S298 of 2002
B e t w e e n -
PLAINTIFFS S298/2002
Plaintiffs
and
THE COMMONWEALTH OF AUSTRALIA
Defendant
Application for interlocutory injunction
GAUDRON J
(In Chambers)
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON FRIDAY, 27 SEPTEMBER 2002, AT 10.33 AM
Copyright in the High Court of Australia
MR D.H. GODWIN: May it please the Court, I appear for the applicants. (instructed by Parish Patience Immigration Lawyers)
HER HONOUR: Yes. Why have I two matters listed?
MR GODWIN: Your Honour, there is a writ of summons matter and a constitutional writ matter. The constitutional writ matter is S349 of 2002 and the chamber summons matter is S298 of 2002. The relief sought in the chamber summons matter is simply interlocutory injunction and the relief sought in the prerogative writ matters includes and interlocutory injunction together with the other relief.
HER HONOUR: Yes, thank you. Mr Markus, you appear for the respondent in the first matter and the defendant in the second, do you?
MR A. MARKUS: Your Honour, I seek leave to appear on behalf of the first respondent in the first matter and I should indicate to your Honour that I also have instructions on behalf of the second respondent, who wishes to submit to any order of the Court save as to costs. In relation to the second matter, I appear for the defendant. (instructed by Australian Government Solicitor)
HER HONOUR: Yes, thank you, Mr Markus. Now, Mr Godwin, I have not been able to attend to all of these documents that have been coming in on the fax almost as I was coming down to Court, so you had better take the matter slowly for me, thank you. Tell me, we are here today on a summons, are we?
MR GODWIN: Your Honour, there is a summons in proceeding S298 of 2002 and there is - - -
HER HONOUR: Yes. Is that the only summons?
MR GODWIN: That is the only summons, your Honour.
HER HONOUR: Yes, thank you. Yes, I have that summons.
MR GODWIN: Then in proceedings S349 of 2002 there is the draft order nisi.
HER HONOUR: Yes. Yes, thank you, I have that. Now, that seeks prohibition, certiorari and mandamus in respect of a decision by the Refugee Review Tribunal of 18 November 1997?
MR GODWIN: Correct, your Honour.
HER HONOUR: Yes.
MR GODWIN: There is also a plea seeking mandamus in respect of an outstanding decision in relation to bridging visas by one of the delegates of the respondent.
HER HONOUR: But is that not an application in the Federal Court?
MR GODWIN: There is also an application in the Federal Court, your Honour.
HER HONOUR: Well, let us get this straight. I see, why would there be an application in the Federal Court and at the same time an the application in the draft order nisi with respect to bridging visas?
MR GODWIN: Your Honour, there is separate proceedings in the Federal Court just relating to the second applicant/prosecutor who is the male applicant/prosecutor. That relates to a Migration Review Tribunal decision refusing to grant him a bridging visa.
HER HONOUR: Yes, and the bridging visa matter in respect of which mandamus is sought in No S349 of 2002 relates only to the first, third and fourth prosecutors?
MR GODWIN: Yes, that is correct, your Honour.
HER HONOUR: Yes, thank you. Well, I think I have that sorted out.
MR GODWIN: Just by way of brief explanation. The reason why we approached this Court in relation to those applicants is the changes to the Migration Act 1958 effected last year means that the Federal Court has no jurisdiction in relation to primary decision-makers.
HER HONOUR: Now, you should not assume I am totally familiar with those changes to the Migration Act. Who are primary decision-makers?
MR GODWIN: Delegates of the Minister as opposed to the RRT or the MRT.
HER HONOUR: Very well. You had better take me through your affidavit, or you had better identify the affidavits on which you rely.
MR GODWIN: Thank you, your Honour.
HER HONOUR: And if you would be so kind as to indicate whether you rely on it in respect to the summons or the draft order nisi.
MR GODWIN: Yes, your Honour. Two affidavits have been filed. Both have been filed in the order nisi proceedings. They are the affidavit of 26 September 2002 - - -
HER HONOUR: Yes. It is going to take me a little while to find that because the documents came in off the fax and they did not necessarily have their annexures and they are not stapled together at this stage. So 26 September - I have such a document but - - -
MR GODWIN: I am sorry, your Honour, for the state of the paperwork but there is page numbers on the top right-hand corner which might assist in putting things back together.
HER HONOUR: Yes, I think I have the annexures now. I think I also have duplicates by some process that we will not go into. Yes, thank you, I have the affidavit of Etienne de Villiers Hugo of 26 September 2002, that being a document of six pages with annexures; is that correct?
MR GODWIN: Yes, your Honour. I read that affidavit.
HER HONOUR: You should read it all because I have not necessarily taken it all in.
MR GODWIN:
1. I am a solicitor acting for the applicants/prosecutors. All the applicants/prosecutors are presently in Immigration detention.
2. On 24 September Parish Patience Immigration Lawyers (Parish Patience) were notified in writing that it was proposed to remove the second applicant from Australia after the expiry of 48 hours. A true copy of this written notification is annexed hereto and marked EDH1.
I go to EDH1, your Honour, which has a page No 7 in the top right-hand corner. Your Honour will see there that Parish Patience is put on notice that there will be 48 hours before removal is commenced. Going to paragraph 3 of the affidavit on page 2:
On 25 September 2002 Parish Patience were notified that arrangements had been made to remove the second applicant from Australia on Friday, 27 September 2002 at 10.15pm. A true copy of this written notification is annexed hereto and marked EDH2.
That has a page No 8 on the top right-hand corner.
HER HONOUR: Yes.
MR GODWIN: Going to paragraph 4 on page 2:
On 26 September 2002 I had a telephone conversation with a person who identified himself as Grant Browne, a case officer within the Department of the First Respondent in words to the following effect:
I said "are the . . . all to be removed tomorrow?"
HER HONOUR: Wait a moment. We cannot identify these people, your clients in this Court. So we will have to think of another way of referring to them.
MR GODWIN: Yes, your Honour.
HER HONOUR: Please do not record the name of those persons in the transcript. Yes, we will treat that as if "are all the prosecutors to be removed tomorrow?"
MR GODWIN: Yes, your Honour.
HER HONOUR: Thank you. Yes, please continue.
MR GODWIN: And:
He said "that is the case, you should know that because I notified you."
A true copy of notification received in relation to the first, third and fourth applicants is annexed hereto marked EDH3.
That commences on page No 9.
HER HONOUR: Yes.
MR GODWIN: It does not in its terms state that they are to be removed at the same time as the male prosecutor. However, read together with the conversation I have read to your Honour, that is the effect.
HER HONOUR: Yes, thank you.
MR GODWIN: Going to paragraph 5 on page 2:
Parish Patience first received instructions to act for the applicants on 2 September 2002, two days after the Respondent's delegate refused to grant the second applicant a bridging visa (the decision of 30 August 2002).
HER HONOUR: And that is the subject, is it, of ultimately the Federal Court proceedings?
MR GODWIN: Correct, your Honour, because that was reviewed in the MRT. Moving to paragraph 6:
Parish Patience received instructions to lodge an application to seek review in the MRT of the decision of the respondent's delegate not to grant the second applicant a bridging visa E and also to commence proceedings in the High Court to review the decision of the RRT to affirm the decision of the respondent's delegate not to grant the applicants a protection visa (the first applicant was the primary applicant for protection, the other applicants were dependents). By reason of S486A of the Migration Act (the Act) the applicants are out of time to apply to the High Court for Constitutional writs to review the decision of the RRT as more than 35 days have passed since the applicant was actually notified of the decision of the RRT.
HER HONOUR: Well, you are also out of time according to the Rules in so far as you seek relief for mandamus and certiorari.
MR GODWIN: Yes, I understand that, your Honour. Your Honour, the draft order nisi does seek an extension of time as one of the orders being sought. Paragraph 7:
Parish Patience lodged a writ of summons in the High Court and a statement of claim.
That is the first proceedings, your Honour, proceedings S298 of 2002.
The relief sought is declaratory only and seeks a declaration that s486A of the Act is invalid. These proceedings have been given the Court Number of S298 of 2002. Notices have been sent under s78B of the Judiciary Act. Argument has already been heard in the High Court on the validity of s486A (in other proceedings) and judgment was reserved and is expected on or before February 2003. I am informed by Nigel Dobbie -
another solicitor in the practice, your Honour -
and verily believe that the writ of summons in the High Court in these proceedings will be held in abeyance in the High Court until the determination of the reserved judgment.
8. Parish Patience has lodged writs of summons in the High Court on behalf of other clients seeking declarations in the same terms as have been sought in these proceedings. From my experience with these matters I can say that the respondent has granted some of these applicants bridging visas E based upon the existence of the proceedings in those matters.
Bridging Visas
9. The applicants are citizens of the Czech republic. They entered Australia on 29 April 1996 as holders of visitors visas valid until 29 July 1996. On 13 May 1996 the applicants were granted bridging visas A pending the determination of their refugee applications. These visas ceased on 23 December 1997 after the decision of the RRT. The applicants then wrote to the first respondent seeking an exercise an exercise of his power under s417 of the Act. I am informed by the first applicant and verily believed that the applicants received bridging visas while this application was pending. The application to the Minister was finalised on 7 July 1998 as "power not considered". I am informed by the first applicant and verily believe that the applicants did not receive notification of this as the notice was sent to a previous address.
10. I am informed by the first applicant and verily believe that the second applicant attended the offices of the First respondent to notify a further change of address on 27 August 2002. I am informed by the first applicant and verily believe that this was the first time that the applicants were informed their Ministerial application had been refused and they no longer were lawfully in Australia. The second applicant was taken into immigration detention that day. The first and third and fourth applicants were granted bridging visas E until 12 September 2002 for the purposes of presenting departure arrangements.
11. On 28 August 2002 the second applicant applied for a bridging visa E based on the fact that he was making arrangements to depart Australia. At the time that the applicant applied for the bridging visa E he had not commenced the High Court proceedings.
12. On 30 August 2002 the delegate of the first respondent refused the application of the second applicant for a bridging visa E.
13. On 2 September 2002 proceedings were commenced by the second applicant in the Migration Review Tribunal (the MRT) to review the decision not to grant a bridging visa E.
14. On 5 September 2002 Parish Patience lodged applications for further Bridging Visas E for the first and third and fourth applicants. The basis for the application was to enable them to remain in Australia until the proceedings in this Honourable Court were determined. A true copy of these applications are annexed hereto and marked EDH4.
Now, unfortunately, your Honour, there has been a problem with the compilation of this affidavit. What is, in fact, attached and marked EDH4 is material relating to the Federal Court proceedings. The Registry should have provided to your Honour a copy of a separate document marked EDH4.
HER HONOUR: Well, let me check. Would that be a document which is numbered pages 63, 64, et cetera, through to 70?
MR GODWIN: No, your Honour. It is a separate document. The first page of it is a letter from Parish Patience to Grant Browne dated 26 September 2002.
HER HONOUR: Yes, I have that.
MR GODWIN: It has page numbering starting No 1 again on the top right-hand corner.
HER HONOUR: No, mine does not have any. Let me see. But it does attach the applications.
MR GODWIN: It attaches the applications, your Honour, yes.
HER HONOUR: Yes, thank you.
MR GODWIN: And the applications to which the mandamus against the delegate is sought - against the first respondent's delegates.
HER HONOUR: Yes. Now, have they been refused?
MR GODWIN: Not to my knowledge, your Honour.
HER HONOUR: And these documents - let me just be sure of that - they refer to the proceedings that are the subject of the draft order nisi, do they?
MR GODWIN: No, your Honour. These ones refer to the writ of summons proceedings.
HER HONOUR: How do I find that?
MR GODWIN: On the second page.
HER HONOUR:
PLEASE SEE WRIT OF THE HIGH COURT ATTACHED.
MR GODWIN: I think your Honour might have a different document.
HER HONOUR:
A copy of the Writ of Summons and the Statement of Claim recently filed in the High Court - - -
MR GODWIN: Yes, that is it, your Honour.
HER HONOUR: Yes, thank you. Now, that takes us back, I think, does it, to - - -
MR GODWIN: Paragraph 15 on page 5, your Honour:
On 11 September 2002 the MRT affirmed the refusal of a bridging visa E for the second applicant.
16. On 13 September 2002 proceedings were commenced in the Federal Court of Australia to review the decision of the Migration Review Tribunal which affirmed the decision of the delegate to refuse the second applicant a bridging visa. Those proceedings have a direction hearing set for 3 October 2002. A true copy of the application and supporting affidavit in those proceedings are annexed and marked EDH4.
That commences at page 13 of the numbered annexures.
HER HONOUR: Well, I am not sure that I have that. Is that - thank you. Yes, I have that, thank you.
MR GODWIN: Thank you, your Honour. I will not take your Honour through that application.
HER HONOUR: But that too relates to a bridging visa application made by reference to the writ of summons proceedings, the 486A proceedings, if I could call them that; is that right?
MR GODWIN: Indirectly, your Honour. Unfortunately it is a little bit more complicated than that. What happened was that the original application for a bridging visa by the second applicant was made on the basis that he was making departure arrangements from Australia. That is a separate category of eligibility for a bridging visa.
HER HONOUR: Yes.
MR GODWIN: At the time he made that application there were no High Court proceedings in existence. As a part of the process of the hearing of that application, or during the process of the hearing of that application in the MRT, the High Court proceedings were instituted. It was therefore part of the case for the applicant in the MRT that he had an eligibility for a bridging visa based on those proceedings. Unfortunately the criteria for a bridging visa based on current proceedings requires those proceedings to be current at the time of application and as, when he actually applied for the bridging visa, the High Court proceedings had not been commenced, there was no power so the Tribunal found to grant his application based on those proceedings.
HER HONOUR: Yes.
MR GODWIN: And that is basically in a nutshell what that annexure is there to establish for the Court, without taking your Honour through it because it is quite lengthy.
HER HONOUR: Yes, thank you.
MR GODWIN: Then paragraph 17 on page 5, your Honour:
On 19 September 2002 the first, third and fourth applicants were taken into immigration detention.
18. On 25 September 2002 further applications for bridging visas E were made on behalf of the first, third and fourth applicants.
They are not in evidence, your Honour.
19. On 26 September 2002 I facsimiled copies of EDH4 -
that is the one that is not annexed to this - that is the one that got misplaced, if you follow, your Honour -
to Grant Browne as he had sent me EDH3.
That was the departure list.
I subsequently had a telephone conversation with Grant Browne to the following effect:
I said: "are you going to make a decision on the applications for bridging visas lodged on 5 September 2002?"
He said "we have received two applications in the last two days."
I said "it the first application was lodged on 5 September 2002"
He said "I am not obliged to make a decision on those applications in a specific timeframe. I will decide both applications at the same time. I am only obliged to make a decision on the second set of applications tomorrow."
If I could just interject there, your Honour: Grant Browne is also the person who signed the removal checklist. So he is the person who is determining the bridging visa applications and he is also the person giving effect to the removal. Moving to paragraph 20 on page 6:
Because the second applicant is in detention he is prevented from making a further application for a Bridging visa E until 30 days from when the review of the decision to refuse to grant the visa was finally determined (s74(2)) of the Act.
I will take your Honour to that later in my submissions.
21. The applicants only have a limited amount of material regarding the RRT proceedings. Such material as the applicants currently have is annexed and marked EDH5. Notices to produce will be served upon the respondents in due course to ascertain the material held by them in relation to this matter and, if necessary, a discovery order sought. The applicants contend that they were denied natural justice by the second respondent when it determined their application.
HER HONOUR: Yes, thank you. Now, you have a second affidavit, do you?
MR GODWIN: I do, your Honour, but just before I move to that, if I could just indicate that it is intended to move on the contents of this first affidavit in relation to the writ of summons proceeding as well.
HER HONOUR: Yes, thank you. As well as the draft order nisi?
MR GODWIN: Yes.
HER HONOUR: Yes, thank you.
MR GODWIN: There is a second affidavit, your Honour. That is by the same deponent and it is dated today's date and it is about six pages long. Again it was in the order nisi proceedings, your Honour. Does your Honour have that?
HER HONOUR: Yes.
MR GODWIN: Reading from paragraph 1:
I am a solicitor acting for the applicants/prosecutors.
2. On 27 September 2002 I facsimiled the documents annexed and marked EDH6 to Villawood Detention Centre.
Now, the whole of the documents have not actually, in fact, been annexed. It just the covering letter. What that is is fresh bridging visa applications based on the proceedings which were commenced yesterday, the order nisi proceedings.
HER HONOUR: Yes.
MR GODWIN: Then paragraph 3:
On 27 September 2002 I faxed the documents marked EDH7 to Grant Browne.
EDH7 is a request to Grant Browne not to determine the other bridging visa applications until he has determined this new one.
HER HONOUR: Well, I maybe do not have - yes, thank you. Yes.
MR GODWIN: Then paragraph 4:
On 27 September 2002 I had a telephone conversation with a person who identified himself as -
the male prosecutor -
in words to the following effect:
I said "have you received my fax and lodged the applications?"
He said "yes. The applications were forwarded to Mr Browne".
HER HONOUR: I do not follow that. What applications are there referred to?
MR GODWIN: This is the new applications for bridging visas based on the proceedings commenced yesterday.
HER HONOUR: But that is applications by the first, third and fourth - - -
MR GODWIN: By all of the applicants in this case, your Honour.
HER HONOUR: I thought the male prosecutor could not lodge anything for 30 days.
MR GODWIN: That may be the case, your Honour, but it is dependent on a construction on the regulation, so he has attempted to lodge this latest application and it will just depend on how the particular regulation is construed as to whether or not, in fact, the Department can grant this latest application notwithstanding 74(2) of the Act.
HER HONOUR: Thank you. Well, that is your evidence, is it?
MR GODWIN: Yes, your Honour.
HER HONOUR: That is the whole of your evidence?
MR GODWIN: Yes, your Honour.
HER HONOUR: Now, does Mr Markus have any evidence he wishes to put before me?
MR MARKUS: No, your Honour. I should indicate that because of the nature of these proceedings I made no objections to the affidavits. My objections are really as to form and relevance and perhaps I can address those in submissions, your Honour.
HER HONOUR: Yes. Now, I take it that some sort of decision is being made today about bridging visas; is that correct?
MR MARKUS: Your Honour, I understood that there was to be a decision made in relation to certain bridging visa applications today, but if your Honour looks at the affidavit of Mr Hugo affirmed earlier today and in particular the annexure which appears at the second-last page, which is a facsimile to Mr Grant Browne, your Honour will note that in the first paragraph of that facsimile, in effect, the applications for the bridging visas that were to be determined have been withdrawn.
Now, that, we would say, in effect, disposes of that part of the application that seeks mandamus against officers of the Department to determine bridging visa applications lodged on a particular date, quite apart from the question whether there is any duty on my clients to determine - - -
HER HONOUR: Yes. Well, what I really want to know is are you in a position to tell me whether or not decisions will be made today - any decision will be made today that is relevant to the summons application?
MR MARKUS: Your Honour, my instructions were that there were decisions to be made today in relation to the bridging visa applications that were currently before my client. This morning when I came to Court I have been handed this affidavit which suggests that those bridging visa applications have been withdrawn. As I understand the position, there is no duty on my client to determine these new bridging visa applications today and, indeed, there cannot be any duty to determine applications that are invalid in any event. But, your Honour, I do not have specific instructions in relation to this facsimile which has been sent to the Department earlier today.
HER HONOUR: Would it be of any assistance to you to get instructions?
MR MARKUS: Well, could I try to do that, your Honour, but, in my submission, if - I mean, my friend really needs to amend his application or the application for order nisi to seek orders in relation to these latest applications and then he would need to demonstrate there is some duty on my client to determine those applications today for him to be able to get mandamus in the terms that I understand he now proposes to seek, because the current orders relate to applications that apparently have just been withdrawn.
HER HONOUR: Very well. Well, we will go back and we will see what Mr Godwin has to say, then we will proceed with the evidence as it is. Yes, thank you, Mr Godwin.
MR GODWIN: Your Honour, you wish me to respond to what my friend has just put.
HER HONOUR: I think if you could put your submissions firstly, as to, I suppose, an order nisi and then as to the summons, but it seems to me, and perhaps you might consider this, if you were not to be granted an order nisi then there really would not be much prospect of relief being granted on your summons.
MR GODWIN: Yes.
HER HONOUR: And you may need to consider whether you should amend the application for order nisi.
MR GODWIN: Yes, your Honour. I certainly had anticipated that that might be necessary. Things happening as they do subsequent to the lodgment of the initial application, we can only do things as they arise, but what your Honour said to my friend in relation to him being able to determine whether there is actually going to be a decision made on the latest application today, with respect, it seems to the applicants that that is a crucial matter for the Court to know, because, in a sense, if there is to be a decision today and it were to favour the applicants in the grant of a bridging visa then this whole application to your Honour this morning would be unnecessary.
HER HONOUR: And what if it did not favour them?
MR GODWIN: Then, your Honour, we would have to be seeking order nisi relief against the decision as made.
HER HONOUR: Yes, very well. We will hear your submissions as things presently stand and then we will see what Mr Markus has to say.
MR GODWIN: Thank you, your Honour. Your Honour, I have had filed and sent to the Registry an outline of written argument. Does your Honour have that?
HER HONOUR: Yes, I do.
MR GODWIN: Thank you. If I could just take your Honour through that.
HER HONOUR: Yes.
MR GODWIN: It starts by referring to the fact that since the modern migration regime has been enforced, persons who have been seeking review of decisions in tribunals, courts and to the Minister personally have been entitled to the grant of a bridging visa to remain in Australia until their application is determined. Now, that is provided for principally in clause 050.212 of Schedule 2 of the Migration Regulations and I have attached a copy of the relevant parts of that clause. Did your Honour get that?
HER HONOUR: Yes, I think I did.
MR GODWIN: You will see, your Honour, if your Honour does have that, the first page which has a page number at the bottom, 72,409 - does your Honour have that?
HER HONOUR: Yes.
MR GODWIN: Your Honour will see numbered (3A) about two-thirds of the way down the page:
An applicant meets the requirements of this subclause if:
. . .
(b) either:
(i) the applicant has applied for judicial review of a decision to refuse to grant the visa and the judicial proceedings (including any proceedings on appeal) have not been completed -
so that is the first relevant clause. Then underneath that is clause (4):
An applicant meets the requirements of this subclause if:
(a) the applicant has applied for judicial review of a decision in relation to a substantive visa, other than a decision to refuse to grant a visa; or . . .
(d) the applicant has applied for judicial review of the validity of a law that affects:
(i) the applicant's eligibility to apply for a substantive visa; or
(ii) the applicant's entitlement to be granted or to continue to hold a substantive visa -
and then, over the page again is subclause (6) and that relates to applications to the Minister for his intervention. So, they are the relevant subclauses that found the entitlement to bridging visas pending the outcome of judicial proceedings.
Going back to my submission, your Honour - I have also attached two pages of a Federal Court decision called Tutugri v The Minister [1999] FCA 1785. In that case Justice Lee comprehensively went through the legislative scheme by which bridging visas are granted and he sets out all the various parts of the Act relevant to that. Your Honour will see when you look at that that it is not a simple scheme but, in the end, the clauses to which I have just brought your Honour's attention are the critical clauses for persons seeking judicial review.
Now, going back to my submission: paragraph 1, this legislation reflects the reality that the statutory review right would be rendered, in most cases, worthless, if the applicant were removed from Australia during the currency of the review.
Then, paragraph 2, very exceptionally, however, cases have arisen where the applicant has not been granted a bridging visa and an application has been made in the course of judicial review proceedings to prevent the applicant's removal from Australia. This is such a case.
Now, the power to remove the applicants comes from section 198(6) of the Migration Act. Perhaps if your Honour turns to that provision. Does your Honour have the Act?
HER HONOUR: Reprint 8. Could you just tell me which reprint I should be working on.
MR GODWIN: Yes, I confirm that is the latest reprint.
HER HONOUR: Yes, thank you.
MR GODWIN: So the terms of 198(6) are:
An officer must remove as soon as reasonably practicable an unlawful non-citizen if:
(a) the non-citizen is a detainee; and
(b) the non-citizen made a valid application for a substantive visa that can be granted when the applicant is in the migration zone -
in this case that was the refugee application -
(c) one of the following applies:
(i) the grant of the visa has been refused and the application has been finally determined;
(iii) the visa cannot be granted -
Given the latest proceedings in this matter whether or not the application has finally been determined is probably a live issue, and -
(d) the non-citizen has not made another valid application for a substantive visa that can be granted when the applicant is in the migration zone.
Just going back to paragraph 3 of my submission, it has been held in the Federal Court that this section mandates removal of an unlawful non-citizen, and there is no discretion involved. That is a case of Lewai v The Minister [2001] FCA 1309 at paragraph [14] per Hely J. Justice Hayne has said something similar, your Honour, in a case called Re S. Regrettably, I do not seem to have bought the report up with me, your Honour. It is reported in the ALRs in 1998.
HER HONOUR: Yes, well, I do not know that anything turns on it, does it? I mean, the critical question is what is the inherent power of this Court, is it not?
MR GODWIN: Of course, your Honour.
HER HONOUR: If it would render the proceedings inutile then, ordinarily, one would grant it, so you really do have to come to the proceedings, do you not, and see whether the review process has been determined and that will depend on a number of things, but for the moment, it would depend whether, even apart from section 486, an order nisi would be granted, would it not?
MR GODWIN: Yes, your Honour, but one of the difficulties faced by the applicants in this case is the fact that this has all happened very quickly and they only have a certain amount of documentation to put before the Court. As indicated in the affidavit of Mr Hugo, it is the intention of - - -
HER HONOUR: The decision is before the Court. The affidavit of Mr Hugo really suggests that he has nothing at all substantive by way of argument that they were denied natural justice, does it not? The second affidavit says - is it the second affidavit?
MR GODWIN: No, your Honour. It would be the first.
HER HONOUR: The first affidavit says - let me go to this:
If entitled to do so, the applicants will be putting a case based upon the decision of this Court in Muin.
MR GODWIN: Yes, your Honour. That is my submission.
HER HONOUR: "If entitled to do so". Now, does that refer to section 486A?
MR GODWIN: Yes, your Honour.
HER HONOUR: Okay, well let us leave 486A out of it, because that has been reserved and if you would be otherwise entitled to relief the appropriate course would be to adjourn the order nisi, would it not, until the outcome of the decision in, I think it is Plaintiff S157 v The Commonwealth, but how do you make a case of denial of natural justice in this case when the decision simply was, in effect, "I believe what the primary applicant says, but they're not Convention grounds"?
MR GODWIN: Yes, your Honour. To the best of our ability, your Honour, we clearly have on the misleading nature of the correspondence from the Tribunal to the applicants.
HER HONOUR: But you have to go further than that. In what respect were you misled and what would you have done if you were not misled?
MR GODWIN: Yes, your Honour. Your Honour, I appreciate that that is the evidence that we need to get before your Honour in order to grant the order nisi. The difficulty is that in the time frame in which all these decisions to remove the applicants are being made there has not been adequate time to obtain documentation for the respondent by FOI or other process in order to get proper instructions on those points.
HER HONOUR: What possible argument could there be? Do not worry about FOI. What possible argument could there be?
MR GODWIN: Your Honour, you will see that the RRT's decision makes no reference at all to any material. We do not have the delegate's decision, but it is certainly commonplace for delegates - - -
HER HONOUR: We are concerned with the RRT decision.
MR GODWIN: Yes, your Honour.
HER HONOUR: That is what you seek to challenge by way of constitutional writ. It concerns really only the first prosecutor, does it not?
MR GODWIN: Correct, your Honour.
HER HONOUR: She gave evidence, did she?
MR GODWIN: She did, your Honour.
HER HONOUR: She was present at the proceedings?
MR GODWIN: She was, your Honour.
HER HONOUR: It was put to her in the course of the proceedings that whatever the basis of her fear it was not Convention related. That would seem to be clear from the decision.
MR GODWIN: Yes.
HER HONOUR: She had an opportunity to answer that?
MR GODWIN: Yes.
HER HONOUR: Well then, what possible argument could there be for breach of the requirements of procedural fairness?
MR GODWIN: Your Honour, regrettably the best, or not the best, or what I would be seeking to establish given a sufficient amount of time, would be that material shows that there is an organised criminal element in the Czech Republic, that there is connection between the Czech Government authorities and the organised criminal element, that the incident which was witnessed by the first prosecutor was the responsibility of the organised criminal element and that there was independent material - - -
HER HONOUR: Yes, but now was that material put to the Tribunal?
MR GODWIN: This is the difficulty, your Honour. Until we get access to the documents I have not been able to determine that. We do not even have the delegate's decision. Your Honour, last night I did give the solicitor for the respondents a document entitled "Notice to Produce" seeking the files of the respondent and of the second respondent. I understand that that is not a document with any Court sanction but that was a step taken in order to try and obtain information as quickly as possible so that, if necessary, even a short adjournment could be given to enable the applicants to have access to the information which might be sufficient to satisfy your Honour to grant the order nisi.
MR MARKUS: Your Honour, I can indicate to the Court that I have those files in Court. At least, I have the files of the Department in Court relating to the protection visa application and I have a copy of the RRT file that I can allow my friend to inspect. Having said that, your Honour, for the reasons that your Honour suggested, it seems that the Muin/Lie-type argument is just clearly not available in this case. I will leave the submissions till later.
HER HONOUR: Now, Mr Godwin, Mr Markus, what I can do, if it is of any assistance to you, Mr Godwin, is I can adjourn this proceeding until 2.30. We will back by video link at 2.30 and give you an opportunity to go through that file and prepare any affidavit material that you would rely on. Is that of some assistance?
MR GODWIN: It would be of tremendous assistance, your Honour.
HER HONOUR: Do you object to that course, Mr Markus?
MR MARKUS: No, your Honour. I should say one thing, however, just very briefly by way of indication. Your Honour, there is, in the affidavit and my friend's submissions, as a proposition and in the writ of summons proceedings that that proceeding concerns the validity of section 486A. Your Honour, section 486A clearly does not apply to this case. Section 486A only applies to decisions made after 27 September, 2001.
HER HONOUR: Of course, yes.
MR MARKUS: Your Honour, in that context my client says that this is a case where absolutely no attention has been given to the substance of the complaint or any complaint that may be available in relation to the decision of the Refugee Review Tribunal and really the prosecutors should have been in a position, well and truly by now, to have a proper argument if any such argument is available to them to present to this Court. It is in that context that my client has decided to take the action that it has pursuant to its obligations under the Migration Act to remove persons from Australia who are unlawful non-citizens as soon as reasonably practicable.
HER HONOUR: Yes, I understand all that, Mr Markus, and thank you for drawing my attention to section 486A. So it really does come down to this question, I think you agree, is there any basis upon which an order nisi could be granted?
MR MARKUS: That is exactly our position, your Honour.
HER HONOUR: Well, shall we give him till 2.30 to see if there is some basis, or not?
MR MARKUS: I am content with that, your Honour.
HER HONOUR: Yes. Now, Mr Godwin, that would mean you had better look at the papers very carefully and see what you can do before 2.30.
MR GODWIN: I am indebted to your Honour.
HER HONOUR: Yes, well we will adjourn now and resume in Sydney and Canberra by video link at 2.30.
AT 11.32 AM THE MATTER WAS ADJOURNED
UNTIL LATER THE SAME DAY
UPON RESUMING AT 2.59 PM:
HER HONOUR: Yes, thank you, Mr Godwin. I have just received this affidavit. I take it you rely on that affidavit?
MR GODWIN: Yes, your Honour, I do read that affidavit.
HER HONOUR: Well, perhaps you had better read it all out because I have not had a chance to take it in.
MR GODWIN: Thank you very much for your time, your Honour. It is again by Etienne de Villiers Hugo, 27 September 2002:
1. I am a solicitor acting for the applicants/prosecutors.
2. On 27 September 2002 I inspected the departmental file in respect of the applicants. Annexed hereto and marked EDH8 is a true copy of the applicants' application for a protection visa.
Now, your Honour, I want to take you through various aspects of that application but perhaps will leave that to a bit later.
HER HONOUR: Certainly, thank you.
MR GODWIN: Paragraph 3:
On 27 September 2002 I inspected the refugee review tribunal file in respect of the applicants. Annexed hereto and marked EDH9 is a true copy of a letter from the Tribunal to the applicants dated 16 October 1997.
If I can just take your Honour very quickly to that letter. It appears after the handwritten documents.
HER HONOUR: Yes.
MR GODWIN: Your Honour will see the third paragraph of that letter - and it is a letter from the Tribunal to the first applicant - that it says that:
The Tribunal has looked at all the papers relating to your application - - -
HER HONOUR: Yes, "relating to your application".
MR GODWIN: Yes.
HER HONOUR: Thank you, yes.
MR GODWIN: Then moving on to paragraph 3:
Annexed hereto and marked EDH10 is a true copy of the decision of the delegate dated 17 April 1997.
For present purposes the important aspects of the delegate's decision are the reference in it to a United States Human Rights Practices Report for the Czech Republic 1996. That appears in the Part B documents in the second page of the annexure as B3. Does your Honour have that?
HER HONOUR: Yes. This is under the heading "Reasons" you are directing my attention, are you?
MR GODWIN: No, your Honour. It is on the second page of the delegate's decision under "PART B EVIDENCE BEFORE ME", and B3.
HER HONOUR: Yes.
MR GODWIN: And, as your Honour has said, under the heading "Reasons" a couple of pages along there is extracted from that report a deal of information and then at 3.3.3 over the page the delegate gives his conclusions based on that information.
HER HONOUR: Yes.
MR GODWIN: Going back to the affidavit, your Honour, paragraph 4:
From my inspection of the RRT file there is no copy of the United States State Department Human Rights Report for the Czech Republic in 1996 on the RRT file.
5. On 27 September 2002 I had a conversation with the second applicant who translated on behalf of the first applicant. I asked the first applicant questions to the following effect:
I said "If you had known that the Department was not going to forward the report of the US State Department on Human Rights in the Czech Republic to the RRT would you have sought professional assistance:
The second Applicant said She said "We are not experts we would have engaged professional assistance."
I said "At the time of the RRT hearing did you understand what the Convention Grounds were?"
The second Applicant said She said "I did not understand"
I said "Did you agree with the RRT that your claims were not convention related?"
The second Applicant said She said "yes"
I said "Did you tell the Tribunal about the Russian Mafia and Ukrainian Mafia"
The second Applicant said She said "No, they did not ask me"
Now, if I could just go to the applicant's application for a protection visa, which is a handwritten annexure. Starting on the eighth handwritten page. It is a whole page of handwriting. It is the second whole page of handwriting.
HER HONOUR: Yes.
MR GODWIN: Just by way of summary, what went beforehand was a description by the applicant of the circumstances which had led to the murder of the person whose business she worked for. Essentially, she had been going to go from their home town to Prague with her boss. However, she could not make it, so he went by himself and he disappeared and later his body was found. The fellow, Roman Pech, was a business partner of her boss and he was a suspect and he was detained by the police but then he was released on bail and the page I have referred your Honour to is a description of what happened after he was released on bail. Just reading the second paragraph on that page:
AT THAT TIME, HAPPY LIFE OF OUR FAMILY SLOWLY STARTED TO TURN INTO INCONCEIVABLE HORROR. WHENEVER I GAVE EVIDENCE TO POLICE, IT WAS ALWAYS FOLLOWED BY TERRIFYING ANONYMOUS PHONE CALLS, THERE WERE PEOPLE FOLLOWING ME ON THE STREETS, PEOPLE IN CARS WAITING DURING EVENING HOURS IN FRONT OF OUR HOUSE. I BEGGED POLICE FOR PROTECTION, BUT I WAS TOLD THAT AS THERE IS NO PHYSICAL HARM CAUSED YET, THERE WAS NOTHING THEY COULD DO WITHIN THEIR POLICE COMPETENCE.
Then going over to the next page, the top paragraph:
WE HAVE STRONG REASONS TO BELIEVE, THAT OUR FAMILIARITY WITH THE BACKGROUND OF THE WHOLE CASE, DISPUTES BETWEEN PETR VIKTORIN -
that is the fellow that was murdered -
AND ROMAN PECH, THEFTS OF R. PECH AND MURDER OF P. VIKTORIN MEAN IMMINENT LIFE-THREAT FOR THE WHOLE FAMILY.
Then over the top of the next page:
IT'S ROMAN PECH AND OTHER PEOPLE, WHO WERE INVOLVED IN HIS CRIMES. ANONYMOUS PHONE CALLS AND AN ATTEMPT TO BREAK IN THE HOUSE WERE MADE DIRECTLY BY HIM AND HIS PEOPLE, LINKED WITH HIM BY COMPLICITY, WE FEAR THAT DANGER COMES BOTH FROM HIM AND THEM.
And then if your Honour can see that page has another discrete box under question 39 - - -
HER HONOUR: Yes.
MR GODWIN: - - - the second paragraph of that answer to question 39:
IF I STAYED IN MY COUNTRY AND I KEPT GIVING EVIDENCE WITHOUT BEING GRANTED POLICE WITNESS PROTECTION, I WOULD NOT HAVE MUCH CHANCE TO STAY ALIVE. ME, MY HUSBAND OR MY CHILDREN COULD END UP IN A SIMILAR WAY LIKE PETR VIKTORIN: CZECH REPUBLIC BECAME CROSSROADS OF RUSSIAN AND UKRAINIAN MAFIA AND IT'S NOT DIFFICULT TO HIRE A MURDERER THESE DAYS - UNFORTUNATELY, THIS SORT OF `DEAL' IS EASILY MANAGED BY INDIVIDUALS, WHO CHARGE SEVERAL HUNDRED US$ FOR IT.
Then over the next page, the top of the page:
ENCOUNTER WITH AUTHORITIES BACK IN OUR COUNTRY WAS A BITTER DISAPPOINTMENT. I ASKED FOR WITNESS PROTECTION SEVERAL TIMES, BUT I NEVER GOT IT. POLICE DID NOT SEEM TO CARE ABOUT ANONYMOUS PHONE CALLS WE RECEIVED. ACCORDING TO THEIR POLICY THAT AS LONG AS THERE IS NO PHYSICAL HARM CAUSED, IT IS NOT WITHIN THEIR COMPETENCE TO INTERFERE AT ALL.
Then the third-last paragraph:
WE HAVE ASKED POLICE FOR PROTECTION SO MANY TIMES, BUT IT WAS NEVER GRANTED TO US, AS IF IT WAS A THING THAT POLICE NEVER HEARD ABOUT, IT WAS ALWAYS REJECTED.
Now, your Honour, that is the context of the claim that was made to the delegate. One other piece of evidence, your Honour. It has not been annexed to that affidavit but I do not think my friend will take any issue with me just reading to your Honour a part of the US country report which is referred to in the delegate's decision but which is not set out in the delegate's decision. I have provided my friend with a copy of the report. It is only a short passage.
HER HONOUR: Any objection, Mr Markus?
MR MARKUS: No, your Honour.
MR GODWIN: Your Honour, this appears at page 8 of my copy of the report, in any event, and this is the passage. This is for Mr Markus' benefit, the third-last paragraph, second sentence in, "According to the police unit responsible for fighting organised crime, the Czech Republic is largely a transit country for travellers and women. A credible NGO that tracks this issue has concluded that the country is increasingly becoming a destination for many prostitutes from farther east. In February the police broke up a ring of traffickers and..... Several hundred women and girls annually are smuggled into Western Europe and North America through the Czech Republic and forced to work as prostitutes."
Now, although that does not specifically refer to the existence of the Mafia in the Czech Republic, there is a strong inference when there is the organised crime.....police that are reporting on this and the persons responsible are from further east and in this particular case the Ukraine and Russia are further east. That at least gives some circumstantial support to an argument that there is Mafia present within the Czech Republic on those - - -
HER HONOUR: Well, so be it. How does that impinge on the question of procedural fairness or on the RRT decision, because what was said was that it was not a Convention-related reason and the fact that the Mafia is operating in the Czech Republic does not actually bring it within a Convention reason. You have to go somewhat further, do you not?
MR GODWIN: Your Honour, an alternative argument that the applicants would now raise, having had access to the material, is one of constructive failure of jurisdiction. That argument is that there was sufficient material before the Tribunal to ground a claim on behalf of the family members that they were being persecuted by reason of their membership of that family.
HER HONOUR: For my part, I do not see it, Mr Godwin. There is no suggestion that anybody other than the - is it the first applicant/prosecutor had a fear. Now, if she had a fear for a Convention reason, well that was one thing, but her claim always was, was it not, that her fear was because she was a witness who could give information about her boss's former partner.
MR GODWIN: Yes. Your Honour, the way I put the new ground, as it were, is that material I read to you from the applicant's own application to the Department - sorry, we are getting some feedback here, your Honour. Are you able to hear me?
HER HONOUR: I can hear you, yes, thank you.
MR GODWIN: Thanks. The material that I read to you from the first applicant's application certainly expressed a view that it was not just her that was in fear of retribution from the Mafia. It was her and her whole family. Now, the evidence this morning given by my instructing solicitor is that when he asked the applicant whether she understood what the Convention reasons were, she said she did not understand - - -
HER HONOUR: Well, that does not really matter, does it? It does not matter. You are asserting now constructive failure to exercise jurisdiction and denial of procedural fairness.
MR GODWIN: Yes, that is right.
HER HONOUR: But it still seems to me that you have to point to something before you can go anywhere which you would have raised which would have pointed to a Convention ground for persecution.
MR GODWIN: Your Honour, the context of this application originally was that these applicants were unrepresented before the RRT.
HER HONOUR: Many applicants are unrepresented before the RRT.
MR GODWIN: We presented to the Court evidence that had the applicant known that not all of the material before the delegate was going to be before the RRT - - -
HER HONOUR: Your affidavit stops a long way short of establishing that, Mr Godwin. The delegate apparently referred to it and your affidavit simply says it was not on the file. One knows from the case of Muin and Lie that these materials were on CISNET, but in any event, I simply fail to see why it was necessary to have regard to them unless there was something in the application that pointed to a Convention reason for the fear which the first-named applicant had.
MR GODWIN: Yes, your Honour. When you read through the applicant's application to the Department for protection visa, it becomes clear that it is the whole family that was the subject of the threats. It may be that the family and the applicant did not understand that if the other family members were to make a claim in respect of those threats, they had to make individual applications, that they had a Convention ground on their own.
HER HONOUR: I still do not see that there is a Convention ground. So be it that the others were in danger. Let that be assumed.
MR GODWIN: Yes, I am sorry, your Honour.
HER HONOUR: They were in danger, if that is assumed.
MR GODWIN: Yes.
HER HONOUR: Not because they were a member of a social group as such, it would seem to me, but because they were a means by which, on your argument, the Mafia might intimidate the first applicant.
MR GODWIN: Well, your Honour, we would suggest it be put slightly differently. It is not anything that those family members have done that attracted their potential persecution. It was by - - -
HER HONOUR: You have to go so far as to say, on that argument, that being members of the first applicant's family was itself a social group.
MR GODWIN: Yes, that is correct, your Honour.
HER HONOUR: How do you make that proposition? A family group is not a social group.
MR GODWIN: As I understand it, your Honour, there is some Federal Court authority to the contrary to that, in particular, a Full Court decision in Sarrazola [2001] FCA 263 where a claim for membership of a family was accepted as being a potential claim for being a social group for the purposes of the Convention.
HER HONOUR: Yes. Well, it was not the claim put forward, was it?
MR GODWIN: Your Honour, this is the difficulty the applicants face. They were not, as your Honour observed, like many other applicants, they were not legally represented or, perhaps - - -
HER HONOUR: Let us go back to the procedural fairness aspect. They put forward a claim.
MR GODWIN: Yes.
HER HONOUR: And it was a claim by reference to the first applicant being a witness or potential witness with respect to the murder of her former employer. Right?
MR GODWIN: Yes, your Honour.
HER HONOUR: It is conceded, I take it, that that does not raise a Convention ground.
MR GODWIN: No, your Honour, but "no" meaning "yes", your Honour.
HER HONOUR: Well, how do you elevate family members who might have been the means by which the first applicant was intimidated, on your account, to a social group who are being persecuted on that account? I just simply do not see it. I mean, in order to have been persecuted - you have two problems, it seems to me on that. One persecution; two, social group. Maybe they were the means by which the first applicant would be intimidated, but would that amount to persecution?
MR GODWIN: The sorts of harm that the applicants say they feared is - - -
HER HONOUR: From an identified person, a Mr Pech.
MR GODWIN: Yes, and his friends, or the other associates.
HER HONOUR: And his friends, yes. Well, that is not persecution by the State, is it, and where is there anything to suggest that the State was, in fact, condoning it? It is not there in the application, is it?
MR GODWIN: Your Honour, there is material there that protection was sought and not given.
HER HONOUR: Witness protection was sought by the first applicant.
MR GODWIN: Yes, that is correct, your Honour. Your Honour, if there had been more time, the sorts of material we would have tried to find is independent material which would link the Mafia, as a generic term, with police corruption. Now, there is material in that - - -
HER HONOUR: Well, you could probably do that in any Western country in the world today, but that does not make it a Convention reason, does it?
MR GODWIN: Perhaps in a particular circumstance it might.
HER HONOUR: I mean, one can envisage circumstances in which there is a social group or an identified political group that is campaigning against police corruption or the like who then fall into a particular position which could bring them within the Convention reasons, but this is not that case, is it?
MR GODWIN: The way we would put it to your Honour is this, that if the reason why the applicant and her family cannot obtain police protection is that the police have been corrupted, and there is material in that State report referred to by the delegate which indicates that such corruption does occur, then there is an unwillingness by the home State to protect them, notwithstanding that its inability - - -
HER HONOUR: But that is not sufficient, is it? You have to find a Convention reason. Now, one might well postulate a situation in Australia, say some 10 years ago, where in a context of organised crime and police corruption, for example, a gentleman down at Griffith, Mr McKay, was it - but that does not make it a Convention reason, does it?
MR GODWIN: No, not of itself, your Honour. I mean, it is sort of melding two concepts. One is whether there is effective protection and the other is whether or not the persecution is - - -
HER HONOUR: Yes. You still have to have a Convention reason.
MR GODWIN: - - - which is for a Convention reason. But if a member of a family could constitute a social group and it is by reason of that membership a person is being persecuted and because of police corruption the State is unwilling to protect the people from that persecution, then we say that is an arguable case of a Convention-related claim.
HER HONOUR: Yes, I understand the argument.
MR GODWIN: Thank you, your Honour. In so far as the natural justice case goes, there are the two letters from the RRT to the applicants, the first stating that they have asked for the material from the delegate or the Department - - -
HER HONOUR: Let me have a look at that again. That is - - -
MR GODWIN: That is in the first affidavit, your Honour. It is in the last annexure of the large affidavit. It is EDH5, page 63 of the large affidavit.
HER HONOUR: Page, sorry?
MR GODWIN: Page 63 at the top right-hand corner.
HER HONOUR: I do not have a page 63. I am looking at the wrong document obviously.
MR GODWIN: It is the affidavit of 26 September. It is the big - I suppose you do not have it a bundle, your Honour, so it is hard - - -
HER HONOUR: No, I have all these documents - I have EDH5 - 4 but it is EDH5 and it says:
This and the following fifty (50) pages is the annexure -
but it ends at page 62.
MR GODWIN: Yes. Well, there will be a separate document from the Refugee Review Tribunal which is only one page dated 15 May 1997 with the stamp EDH5 on it.
HER HONOUR: Yes, I have found that, "to forward a copy of its document about your case" - it has asked the Department, yes.
MR GODWIN: Yes, and then there is the subsequent letter of 16 October which I had taken your Honour to a moment ago which is the annexure to the affidavit filed this afternoon, which is EDH - - -
HER HONOUR: And what you would rely on in that material, you say, which may or may not have been considered by the Tribunal, is that the Mafia was operating in Czechoslovakia?
MR GODWIN: Yes.
HER HONOUR: Anything else? Do you want to put it more specifically than that?
MR GODWIN: Well, the actual document initially I was referring to is the previous exhibit to that, which is EDH9, which is a letter from the Tribunal to the applicant stating that:
The Tribunal has looked at all the papers relating to your application - - -
HER HONOUR: Yes. That does not necessarily refer to, I should not have thought, the human rights material, but let us assume for the moment it does, do you rely on anything in that human rights material other than the fact that it was said that the Mafia was operating in Czechoslovakia at the relevant time?
MR GODWIN: No, your Honour. That is the only additional material that was there and it was not referred to by the delegate in the actual decision.
HER HONOUR: And that is the only material you can point to that you think might have been favourable and relevant to the review application by the first applicant/prosecutor; is that right?
MR GODWIN: Correct, your Honour.
HER HONOUR: Yes, thank you.
MR GODWIN: Your Honour, the judgment of Justice Hayne in the Muin Case [2002] HCA 30 observes at paragraph 277 that:
Even if it may appear that the claims of either Mr Muin or Ms Lie are weak, their assessment is a matter for the Tribunal.
If it reached - - -
HER HONOUR: But you have to establish an arguable case either of denial of procedural fairness or constructive failure to exercise jurisdiction, do you not?
MR GODWIN: Exactly, your Honour. That is the correct test, yes.
HER HONOUR: Yes, but so far as procedural fairness is concerned, it has to be with respect to something that could have favourably advanced a case for persecution for a Convention reason.
MR GODWIN: I am not sure it has to be quite that strong. If the applicant can establish that - - -
HER HONOUR: Well, if it was contrary or it was intractably neutral, what difference would it make?
MR GODWIN: As I understood the Court's decision in Muin - and I know that not every Judge put their reasons the same way - it was the case that the Tribunal in those cases had been communicating to the applicants and they in their evidence, the agreed evidence in that case, stated that they would have taken certain action if they had known that all of the material before the delegate - - -
HER HONOUR: Yes, but the material was favourable to their case, or at least some of the material was favourable to their case. What I am suggesting to you is that you have to point to something that could favourably have advanced the claim to refugee status.
MR GODWIN: I understand what your Honour is saying. It is just my submission is that the test is not quite so high. If you can show that you were misled and that you would have taken some other steps, even if - - -
HER HONOUR: But you cannot show that unless - how do you show you were misled? You do not show that and you do not show that you would have taken further steps unless you can establish that at least it was favourable or could have been favourably regarded.
MR GODWIN: I understand what your Honour is saying but I do not want to antagonise your Honour by keeping going back to the same - - -
HER HONOUR: No, you are not antagonising me. I just want to be sure I understand how you are putting your case.
MR GODWIN: As I understand the judgment, if the RRT communicates with the applicants and says, "We have asked the delegate or the Department for all the information relating to your case" - - -
HER HONOUR: Well, is that exactly what they said here? It is "a copy of its documents". We have asked the Department "to forward a copy of its documents about your case". It does not say anything about the documents that the delegate had, does it?
MR GODWIN: Well, that may be so, your Honour, but, I mean, it is not an unrealistic - - -
HER HONOUR: And then the Tribunal says they are not the same letters as were considered in Muin is the point that you have to come to grips with.
MR GODWIN: Yes. I know they are not identical, your Honour, but it is not an unrealistic reading of those documents at this very preliminary stage of the argument, given that my clients are not here to give evidence as to what their actual interpretation of the documents was, but at this very preliminary stage of the argument it is an available interpretation at least of the first letter that the Tribunal was asking the Department for all of its documents and that would encompass, one would have - and it is not unreasonable to suggest the documents referred to by the delegate in his decision.
HER HONOUR: Well, I certainly do not read it that way, but so be it.
MR GODWIN: Yes, your Honour. But that is the submission, that it is capable of that interpretation and it may be that when the applicants came to give evidence on the issue that they will sustain that that is the way they interpreted it. The other document then states from the Tribunal subsequently that it has read all of the material supplied to it.
HER HONOUR: No, it does not. It says:
relating to your application . . . Therefore you are entitled to come to hearing of the Tribunal to give oral evidence -
which your client did - which the first applicant did, right?
MR GODWIN: Yes, that is correct, your Honour.
HER HONOUR: And she gave evidence that "she sought the protection of the police on numerous occasions - I am reading 3.1.1.
MR GODWIN: That is the delegate's decision, your Honour.
HER HONOUR: That is the delegate's, is it?
MR GODWIN: Yes.
HER HONOUR: I am sorry, yes.
MR GODWIN: The Tribunal's is attached - and this is going to be difficult again, your Honour. The Tribunal's decision is a part of EDH5, that document you had a moment ago.
HER HONOUR: Yes. Do you know what page I will find it at?
MR GODWIN: The first page is 65.
HER HONOUR: Mine goes to page 62 but - - -
MR GODWIN: And then there is that other document.
HER HONOUR: The Tribunal's decision seems to start, on the document I have, at - no, that is the Migration Review Tribunal.
MR GODWIN: Yes. Your Honour, a moment ago I referred you to EDH5 which was the first letter from the Tribunal to the - - -
HER HONOUR: Look, I cannot even read these faxed copies where it says that but, all right, I have something - 64, yes. I am sorry, I do have the decision, yes.
MR GODWIN: At page 69 is the only reference to what evidence was given and it is very short.
HER HONOUR: Yes.
MR GODWIN: Well, in context of the affidavit of my instructing solicitor of this afternoon, the exchange between the Tribunal and the applicant hardly illustrates a great opportunity to the applicant to further her case.
HER HONOUR: She does not have to have a great opportunity. She has to have a reasonable opportunity to put her case, which was done, in terms, I imagine, both of her application, what she said to the delegate and what she could have said - it has only to be a reasonable opportunity to put her case and to meet the case against her. That surely is the law, is it not?
MR GODWIN: I do not dispute that, your Honour. The point I am simply making is if the Tribunal puts to the applicant, "Well, you do not have any Convention claims, do you?", and she says, "No", because she does not understand what a Convention claim is, then there is some question in context whether that is a reasonable opportunity to put her case.
HER HONOUR: Yes, thank you.
MR GODWIN: I mean those are the steps in the argument. It is basically that when we are here today, we are a long way away from being able to prove to the satisfaction of the Court there has been a breach of natural justice but there is some evidence - - -
HER HONOUR: No, but you do have to establish an arguable case, do you not?
MR GODWIN: Yes, your Honour, we do, and what we can put to the Court is the two letters written by the Tribunal to the applicant. As to what interpretation has the applicant put on those letters, it is a matter for conjecture at the moment but we say that there are interpretations - - -
HER HONOUR: It is not a matter of conjecture. Your solicitor, Mr Etienne de Villiers Hugo, has spoken to her. He has had opportunity to raise it.
MR GODWIN: Yes, your Honour. I accept what your Honour says.
HER HONOUR: Yes.
MR GODWIN: If I could just get some instructions, your Honour.
HER HONOUR: If you wish, but - - -
MR GODWIN: I think I have taken the matter as far as I can, your Honour. I just wanted to get instructions as to whether there is anything else.
HER HONOUR: Yes, certainly.
MR GODWIN: No, your Honour. Those are the matters on behalf of the applicants.
HER HONOUR: Yes, thank you, Mr Godwin. Yes, Mr Markus.
MR MARKUS: Thank you, your Honour. Your Honour, I note as a starting proposition that this application or the relevant part of this application relates to a decision that was made by the Refugee Review Tribunal in November 1997. That is, the applicant has had a considerable period of time prior to yesterday when the constitutional writ proceedings had been filed to seek to challenge the Tribunal's decision. In fact, the applicant has taken a different path and elected to seek personal intervention by the Minister pursuant to powers available under section 417 of the Migration Act. That happened in December 1997.
In July 1998 that request was declined and that letter advising the applicant was sent to the address that was last notified to the Department. In the applicants' affidavits it is asserted that the applicant was not aware of these but, in any event, your Honour, what we do know is that there has been no attempt by any of the applicant/prosecutors to make inquiries with the Department for a period in excess of four years which I suggest, your Honour, is rather strange.
In any event, what is currently before the Court is an application that my friend puts on two bases - my friend is seeking that the Court issue orders nisi and that interlocutory relief be given to the applicants on two bases: first, it is alleged that there has been a denial of procedural fairness and, secondly, it is alleged that the Tribunal fell into error, in effect, by committing a constructive failure to exercise jurisdiction.
Turning to the second of those propositions first, your Honour. What is being said on behalf of the applicant/prosecutors is that on the material before the Tribunal, the Tribunal was duty bound to consider the issue whether the first applicant/prosecutor or members of her family were persecuted because of their membership - - -
HER HONOUR: Well, feared persecution.
MR MARKUS: Feared persecution. Yes, had well-founded fear of persecution for membership of a particular social group, namely, their own family. There are two substantial problems with that proposition, your Honour, in my submission. First, the applicants' case has never been put that way to the Tribunal and courts should exercise, in my submission, some restraint in implying a duty - - -
HER HONOUR: Well, I do not understand what is meant by that in the context of 75(v). These are not adversarial proceedings, as this Court has said many, many times.
MR MARKUS: Yes, your Honour.
HER HONOUR: People are unrepresented. If there is a ground that is fairly open on the material before the Tribunal, why should the Tribunal not be under a duty to consider it? I mean, I think your better argument is there was just no basis that was fairly open but in the context of 75(v) where the Constitution itself confers jurisdiction on this Court in an important area, the purpose of which is clearly to preserve the rule of law, it seems to me absurd to talk about judicial deference. The question is, was there material there?
MR MARKUS: Your Honour, I do not think I was trying to suggest that the Court should never hold that there was such a duty. I think what I was trying to suggest is that it is a relevant consideration whether it is a case that is put to the Tribunal. I say that, in part, your Honour, because the Tribunal's reasons are usually directed primarily to the arguments that the Tribunal feels it has to deal with because they have been specifically raised in the proceeding or at the hearing before the Tribunal.
I am not suggesting at all, your Honour, that in cases where the material clearly raises issues that need to be considered that a tribunal would not fall into error if it failed to address those issues at all. In any event, your Honour, that was the first difficulty I was pointing to. The second difficulty is the substantive one that your Honour just referred to and that is that on the material this issue simply does not arise.
I do not wish to go through in detail the whole of the applicants' claims. My friend has quoted those parts of the original application which were most favourable to his interpretation. I would simply submit, your Honour, that on a fair reading of the application, the claim is simply not made and does not arise. The alternative basis that the applicants/prosecutors rely on is an alleged denial of procedural fairness and in so doing the applicants rely on this Court's judgment in the Muin and Lie matters.
There are substantial differences between this case and the facts in Muin and Lie. First, your Honour, are as your Honour would be aware, the Minister has made a number of factual concessions for the purposes of determining legal issues in Muin and Lie and those concessions have not been made here. Therefore, it is incumbent on my friend to prove those aspects of the factual matters that were necessary for the Court to conclude that there was a denial of procedural fairness in that case, and the material before this Court simply does not go that far.
One of the obvious elements that are missing, your Honour, is the fact there is no evidence at all before this Court that the first applicant/prosecutor, in fact, believed that the country information material was sent to the Tribunal. What is being said is that that necessarily follows or that that follows from the terms of the letters that were sent to the applicant. Well, in my submission, that simply is not the case.
As your Honour has noted, the letter dated 15 May 1997 simply states that:
The Tribunal has requested the Department of Immigration and Multicultural Affairs to forward a copy of its documents about your case to the Tribunal.
There are two important aspects to that sentence. First, what has been requested is the Department's documents and what has been requested is the Department's documents about the applicant's case.
Now, it is far from obvious, in my submission, that that would suggest that a country information report, which applies generally to Czechoslovakia and which is a US Department of State document, is included or meant to be included as the Department's document relating to the applicant's case.
The second letter which my friend relies on and which is annexed to the latest affidavit filed this afternoon states that:
The Tribunal has looked at all the papers relating to your application -
Now, again, your Honour, it is far from obvious, in my submission, that a US Department of State report is a document relating to the applicant's application. So in that respect the applicant simply fails to assert that she had a belief that that document was sent, but even if she did, your Honour would treat that assertion with some caution because, like some of the other assertions contained in the affidavit, it is rather contra intuitive. In paragraph 5 of this latest affidavit, for example, to the rather leading question that:
"If you had known that the Department was not going to forward the report of the US State Department on Human Rights in the Czech Republic to the RRT would you have sought professional assistance -
apparently the first applicant responded -
"We are not experts we would have engaged professional assistance."
Now, it is hardly, with respect to the first applicant, consistent with what, in fact, happened. The applicants were not experts one way or another. They did not engage professional assistance and there is no explanation as to why, knowing that a US State Department report was not sent to the RRT would have required statutory expertise more than such expertise would have been required in any event.
The applicant also asserts in this affidavit that she did not understand what the Convention grounds were. Now, I have some sympathy for unrepresented applicants, your Honour, in that respect. It is not always easy to understand, but I would like to point out, your Honour, that in the delegate's decision - - -
HER HONOUR: Where will I find that?
MR MARKUS: That is the last affidavit, your Honour.
HER HONOUR: Yes, I think I have it.
MR MARKUS: Towards the end, and if your Honour turns to what is marked as page 15 on the top - it is the fourth-last page, your Honour - at paragraph 3.3.5.
HER HONOUR: Yes, I have that.
MR MARKUS: The delegate states:
The applicant has failed to make any reference to or claims for protection for reasons of her race, religion, nationality, political opinion, or because of her membership of a particular social group. Neither have the circumstances described by the applicant arisen for any of these reasons. The harassment, intimidation and threats to her life, as claimed by the applicant, arose because she has endeavoured to assist the police in their murder investigations, by providing evidence which could lead to the arrest and conviction of the murderers.
And in paragraph 3.3.6 the delegate goes on to state that:
The applicant has therefore failed to make any claims which are Convention related, that is for reasons of her race, religion, nationality, political opinion, or because of her membership of a particular social group, and she has not presented any material or evidence which prompts further enquiry as to whether or not her circumstances may be Convention related.
Now, your Honour, this is the reason why the delegate refused the original application and the Tribunal's decision follows on from that and your Honour would have looked at that before and your Honour will recall that the Tribunal noted that not one part of the applicant's evidence suggests that her fears are in any way Convention related. When the Tribunal put this observation to the applicant at the hearing she did not dispute it and so on and in its findings the Tribunal stated that it was satisfied on the evidence that however real the danger of harm from her boss's murderers may be, the applicant does not face a real chance of Convention-related persecution in the Czech Republic
Now, your Honour, the most obvious reason, in my submission, why even if one accepts that the applicant believed that the US Department of State report did go to the Tribunal when, in fact, it did not, I do not make any concessions in that respect, your Honour. The point is that it was irrelevant to the way that the matter was resolved. In Muin and Lie the decisions to a great extent turned on the country information reports because of the questions about the availability of State protection to what was accepted as otherwise Convention-related harm.
Here, both the delegate and the Tribunal refused the applicant's application because they found that any harm that she may fear is not Convention-related harm. Now, that point must have been obvious to the applicant after the delegate's decision. If she was to obtain any professional assistance, it would have been because of that aspect of the case because that was the basis upon which the delegate refused her claim and if she had any further or other material to produce on that issue, then she certainly was on notice that she so far failed to present such material, both by the delegate's decision and at the hearing before the Tribunal. This is not a case where the applicant can assert any denial of procedural fairness.
Your Honour, finally, I do not know how far I need to go into this. I did make the point earlier today that this is not a decision to which section 486A has any application and that is because of item 4 of Schedule 1 to the Migration Legislation Amendment Act - - -
HER HONOUR: I do not think you need concern yourself with 486A, and were you to rely on section 474, then that would be a matter - - -
MR MARKUS: I was simply going - - -
HER HONOUR: - - - that would have to be adjourned. If it came to that, one would have to adjourn it. The question is and always has been, I think, whether there is any arguable case for the grant of order nisi - - -
MR MARKUS: I accept that, your Honour.
HER HONOUR: - - - independently of section 474.
MR MARKUS: I accept that, your Honour. I was simply going to make the point that this is, however, in the Minister's submission, a privative clause decision, but your Honour need not concern herself with that point for the purposes of today's hearing. We say, your Honour, that the applicant or the applicants have failed to demonstrate an arguable case and the order nisi ought to be refused. Unless your Honour requires any assistance on any other matter, those are my submissions.
HER HONOUR: Yes, thank you, Mr Markus. Anything in reply, Mr Godwin?
MR GODWIN: No, your Honour.
HER HONOUR: Yes, thank you.
I have before me an application for an order nisi directed to the Minister for Immigration and Multicultural and Indigenous Affairs and also a chamber summons which would seek injunctive relief to prevent the immediate deportation of the prosecutors who seek relief under section 75(v) of the Constitution by way of order nisi to which I have already referred.
I proceed on the basis, which I think is not disputed, that were there to be a proceeding in this Court, the prosecution of which could in any way be frustrated by the removal of the prosecutors from the country, it would be within the power of this Court to grant the relief sought by chamber summons. Indeed, I proceed on the basis that if I thought there were an arguable case for the grant of relief under section 75(v) of the Constitution I would allow the application for injunctive relief and I would allow it notwithstanding the time that has elapsed since the decision of the Refugee Review Tribunal.
The draft order nisi which has been filed in Court primarily seeks relief in respect of a decision of the Tribunal of 18 November 1997. It also seeks relief directed to the first respondent with respect to applications for bridging visas lodged on 5 September 2002 by the first, third and fourth prosecutors. That latter relief has not been the subject of detailed argument, it being clear that there has been a subsequent application for bridging visas, the purport of which is to withdraw the earlier applications. There has been no application to amend the draft order nisi in respect of that subsequent application and no argument has been directed to it. Accordingly, to the extent that the draft order nisi refers to the applications for bridging visas, no basis for the making of an order nisi has been demonstrated before me today.
So far as concerns the relief sought with respect to the decision of the Refugee Review Tribunal of 18 November 1997, it is contended that that decision was made in breach of the rules of natural justice, alternatively, that it involved a constructive failure to exercise jurisdiction.
So far as concerns the argument made by reference to the rules of natural justice, it emerges that the only matter upon which reliance is placed is the possible failure of the Tribunal to have regard to country information service information, the effect of which would indicate that the Russian, and possibly the Ukrainian, Mafia were operating in Czechoslovakia at the time of the events upon which the first prosecutor relies and did rely in support of her claim for a protection visa. That information in my view is of no assistance to the prosecutors because it simply fails to address the basis on which their application for refugee status was rejected, namely that no claim was made that they feared prosecution on a Convention-related ground or on a Convention ground.
The argument with respect to the constructive failure of the Refugee Review Tribunal to exercise jurisdiction asserts that the Tribunal should have considered whether the second, third and fourth prosecutors, and perhaps also the first, were being prosecuted by reason of their membership of a social group, to wit the family unit to which they belonged. I see no merit whatsoever in that suggestion. In the first place, no such claim was advanced in the application or before the Tribunal and, secondly, it seems to me it is simply impossible to argue that a particular family group which is experiencing difficulties by reason of certain criminal events in respect of which one of them could give evidence is on that account a social group.
Accordingly, I come to the view that there is no basis for the grant of relief under section 75(v) of the Constitution. I therefore decline to issue an order nisi in respect of the decision of the Refugee Review Tribunal of 18 November 1997 and, accordingly, I must dismiss the summons for injunctive relief.
Does anyone wish to address me with respect to costs?
MR MARKUS: Your Honour, I am instructed to seek costs of the application.
HER HONOUR: Of the chamber summons?
MR MARKUS: Your Honour, I am instructed to seek costs of the order nisi proceeding and of the chamber summons.
HER HONOUR: Yes, but it was your choice to appear on the order nisi proceedings, was it not? There was nothing that required your attendance.
MR MARKUS: Well, that is true. I accept, your Honour, that strictly speaking this is an ex parte proceeding. Having said that, your Honour, it has been the practice of this Court I think in the past few years to welcome the assistance of the Minister in these matters.
HER HONOUR: I will dismiss the chamber summons with costs, noting that in order to determine that summons it was necessary to have regard to the substantive issues that were sought to be argued by reference to the application for relief pursuant to section 75(v) of the Constitution. I will certify for counsel. As to the application for an order nisi, that is simply refused. No order as to costs.
MR MARKUS: If the Court pleases.
HER HONOUR: There is nothing else, is there? Nothing to be attended to further?
MR GODWIN: No, your Honour.
HER HONOUR: The Court will now adjourn.
AT 4.13 PM THE MATTER WAS CONCLUDED
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