Shaw v MIMA, Ex parte Attorney-General of the Commonwealth B18/2002 [2002] HCATrans 482 (9 October 2002)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane No B18 of 2002

B e t w e e n -

JASON SHAW

Applicant

and

MINISTER FOR IMMIGRATON AND MULTICULTURAL AFFAIRS

Respondent

Ex parte -

THE ATTORNEY-GENERAL OF THE COMMONWEALTH

Application for removal pursuant to section 40 of the Judiciary Act 1903

GUMMOW J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO LINK TO CANBERRA

ON WEDNESDAY, 9 OCTOBER 2002, AT 9.29 AM

Copyright in the High Court of Australia

MR D.M.J. BENNETT, QC, Solicitor-General of the Commonwealth: May it please the Court, I appear with my learned friend, MS M.N. ALLARS, for the respondent Minister and for the Attorney-General, who is the applicant before your Honour. (instructed by Australian Government Solicitor)

MR S.J. HAMLYN-HARRIS: May it please the Court, I appear for the respondent to the motion before the Court. (instructed by South Brisbane Immigration & Community Legal Service Inc)

HIS HONOUR: Yes, Mr Solicitor, it is your application.

MR BENNETT: It is my application for removal, your Honour. I move on notice of motion dated 14 March and the affidavits of Helen Josephine Chisholm, sworn 14 March and 17 September, and we have a draft case stated which differs in one word from the original one. We have changed the word "believes" to "suspects" to accord with the Act.

Your Honour, the purpose of the case stated is to deal with the problem that was left open in the judgments of the majority in Patterson and it would also provide an opportunity for us to argue, as we would as presently advised seek leave to do, that the decision is wrong and that the minority view should be followed. This case raises squarely the difference between Justice McHugh and the other members of the majority, because it involves a person who came to Australia between the two relevant dates.

I can tell your Honour that there are a number of other matters at various stages which raise the same question. There is one called Long which will be heard by a single justice of the Federal Court in Perth on 21 October, which is the Monday of the week the High Court is sitting in Perth. There are two matters which have recently been filed in this Court called Burgess and Cowgill. Cowgill has the advantage of being a New Zealander so it may be useful for that case to be accelerated and heard with this one, so that if there is any different issue - - -

HIS HONOUR: Well have you the matter number for that, the Cowgill one?

MR BENNETT: No, your Honour; it is Scott Eric Cowgill. It is recently filed in this Court.

HIS HONOUR: Against the Minister, I guess.

MR BENNETT: Yes. All I know about it, your Honour, is that it is a removal case where the person arrived in Australia in 1977 from New Zealand.

HIS HONOUR: That is a removal application as well, is it not? It is a 501 removal.

MR BENNETT: Yes, removal of the person rather than the matter, your Honour.

HIS HONOUR: Now this proceeding in the Federal Court, how far has that gone?

MR BENNETT: That will be heard on 21 October, which is Monday week, in Perth before Justice French.

HIS HONOUR: No, Shaw I mean.

MR BENNETT: I am sorry. This matter has got as far as - - -

MR HAMLYN-HARRIS: Perhaps I could assist, your Honour.

HIS HONOUR: Yes.

MR HAMLYN-HARRIS: It was about to be heard before a single judge in the Federal Court in Brisbane early in February this year and it was then relisted on the basis that an application would be made to remove to this Court.

HIS HONOUR: Yes.

MR HAMLYN-HARRIS: So that would have been heard - - -

HIS HONOUR: Yes, what there is is an application for an order for review, is there?

MR HAMLYN-HARRIS: Yes, that is right, your Honour.

HIS HONOUR: That is the process in the Federal Court?

MR HAMLYN-HARRIS: Yes.

HIS HONOUR: And there are affidavits in support?

MR BENNETT: They are the affidavits we have filed.

HIS HONOUR: Yes, other than the material filed by the Attorney or does that cover it?

MR HAMLYN-HARRIS: In these proceedings, do you mean, your Honour?

HIS HONOUR: Yes.

MR HAMLYN-HARRIS: No, I have no other material in this Court and I agree with what Mr Bennett has said about the nature of this matter.

HIS HONOUR: Yes, all right, thank you. Well, it is an application under section 40 in a constitutional case so it is as of right really, is it not, Mr Solicitor?

MR BENNETT: Yes, your Honour.

HIS HONOUR: And there is no point in removing part as distinct from the whole, is there?

MR BENNETT: No, your Honour. We thought the appropriate course was to remove the whole, but the stated case deals only with the constitutional part.

HIS HONOUR: Yes, I agree with that.

MR HAMLYN-HARRIS: Your Honour, just on that point, it is my understanding that, depending on the outcome of the constitutional matter, it may be that a request could be made to the Court to remit the other granted appeal.

HIS HONOUR: That is right, yes.

MR HAMLYN-HARRIS: Yes, thank you, your Honour.

MR BENNETT: We would not wish, your Honour, to wake up the day before the hearing in the Full Court and find that there had been a decision of the other part of the case, which rendered - - -

HIS HONOUR: Yes, I understand.

I make the order for removal of the whole of the cause as sought in the Attorney's motion dated 14 March 2002 and I reserve the costs of the removal, I suppose, of the removal motion, and I certify for the attendance of counsel on that motion.

As to the stated case, where was the change you mentioned, Mr Solicitor.

MR BENNETT: In paragraph 7, your Honour, in the fourth line, it is underlined.

HIS HONOUR: Has Mr Hamlyn-Harris seen this? Have you seen this change?

MR HAMLYN-HARRIS: Yes, I have, your Honour. It is simply to reflect the correct wording of the section of the Migration Act 1948 .

HIS HONOUR: I am not sure if paragraph 2 is correct in this sense and I would invite you both to think about this. It seems to me that the applicant's status was probably a citizen of the United Kingdom and colonies pursuant to section 1 of the British Nationality Act, so if that could be looked at. Has he ever sought or obtained an Australian passport?

MR HAMLYN-HARRIS: Your Honour, as far as I know he has not but that is something we can - - -

HIS HONOUR: Can that be checked?

MR HAMLYN-HARRIS: Yes.

HIS HONOUR: That might be relevant on some views of the matter.

MR BENNETT: It would seem unlikely, your Honour.

HIS HONOUR: It would seem unlikely, seeing he has never left the country, has he?

MR HAMLYN-HARRIS: That is correct, your Honour.

HIS HONOUR: But it just should be made totally clear, that is all. Just explain to me the significance of the dates, Mr Solicitor.

MR BENNETT: Yes, your Honour. The Royal Style and Titles Act - - -

HIS HONOUR: Of 1973.

MR BENNETT: - - - of 1973, and the amendments to the Citizenship Act came into effect in 1987.

HIS HONOUR: Yes, I see. So this applicant arrived after the commencement of the 1973 Royal Style and Titles Act, if that has anything to do with it.

MR BENNETT: Yes, your Honour.

HIS HONOUR: Yes, I see.

MR BENNETT: So, on Justice McHugh's - - -

HIS HONOUR: Yes, I follow. I follow what you say.

MR BENNETT: Yes.

HIS HONOUR: All right. If those two matters can be looked at, I will state the case. It will be a one-day matter, subject to it being hitched up, perhaps, to the other application in the matter of Cowgill. Just pardon me a minute. We have the Cowgill file here, gentlemen. The removal application does not seem quite in proper form at the moment - I am sorry, the 75(v) application I should say, does not seem quite in proper form. Would you be proposing to remove that as well?

MR BENNETT: As presently advised, yes, your Honour.

HIS HONOUR: All right. It is a Perth matter by the look of it. If you were so minded, that possibly could be listed before me in Perth one morning and connected up with this one.

MR BENNETT: Yes. Your Honour is not suggesting that the two matters be heard together by the Full Court in Perth - - -

HIS HONOUR: No. Both matters would be seven Justice matters obviously, so they would have to await next February/March.

MR BENNETT: Yes.

HIS HONOUR: It would probably be a one-day matter. Now, the draft stated case - if those two matters I referred to could be attended to and a draft agreed between you filed in the Registry, I will then sign it in chambers without any need for further attendance.

MR BENNETT: If your Honour pleases.

HIS HONOUR: Is there anything else?

MR HAMLYN-HARRIS: No, thank you, your Honour.

HIS HONOUR: Very well. I will now adjourn.

AT 9.42 AM THE MATTER WAS ADJOURNED

UPON RESUMING AT 9.44 AM:

HIS HONOUR: Mr Solicitor, we have lost Brisbane, but there is one other matter I should have raised with you. It is not controversial. It would be also helpful to know more precisely, if that is possible, the immigration status under which the applicant arrived in Australia.

MR BENNETT: Yes.

HIS HONOUR: There was some discussion of that, you will remember, in Patterson at paragraphs 142 and 144.

MR BENNETT: Yes.

HIS HONOUR: He seemed to have arrived as an infant child with the parents in this case, as in the other case.

MR BENNETT: Yes.

HIS HONOUR: The question is, how were the parents here? What sort of visa did they have?

MR BENNETT: Yes. I will have inquiries made.

HIS HONOUR: And remember there was some assumption that it had turned into some other immigration status over time.

MR BENNETT: Yes, there was some confusion about - - -

HIS HONOUR: There was, yes. If that could also be sorted out - - -

MR BENNETT: Yes, I will have that done, your Honour.

HIS HONOUR: - - - and put in the stated case as well. Otherwise it will only crop up in the Full Court.

MR BENNETT: Yes. If your Honour pleases.

HIS HONOUR: Thank you.

AT 9.45 AM THE MATTER WAS CONCLUDED