Glover v Minister for Immigration and Citizenship & Anor [2008] HCATrans 363 (29 October 2008)

Last Updated: 3 November 2008

[2008] HCATrans 363

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S364 of 2008

B e t w e e n -

DAVID GLOVER

Plaintiff

and

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Defendant

MIGRATION REVIEW TRIBUNAL

Second Defendant

Application for order to show cause

HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON WEDNESDAY, 29 OCTOBER 2008, AT 11.06 AM

Copyright in the High Court of Australia

MR D. GLOVER, appeared in person.

MR A. MARKUS: If your Honour pleases, I appear for the first defendant. (instructed by Australian Government Solicitor)

MR GLOVER: Your Honour, is it possible to have Mr White to assist me like a McKenzie friend, your Honour.

HIS HONOUR: If you wish. Do you object to that?

MR MARKUS: No, your Honour.

HIS HONOUR: Now, Mr Glover, just so that we can work out what we should be looking at, I have read I think it is a total of six affidavits that you have filed; Harry Norman Freedman of 22 August 2008, Mittu Gopalan of 10 September 2008, the same deponent of 12 September 2008, Julia Lisowski of 20 October 2008, yourself of 20 October 2008 and, finally, an affidavit of yourself on 27 October 2008. Now, that is all the material that we should have?

MR GLOVER: Yes, your Honour. I would also like to, and I do not know if you have it, a filed reply.

HIS HONOUR: Yes. I have five lots of submissions from you, one dated 22 August, one dated 10 September, two dated 20 October and then one dated 29 October, yesterday. Just before we go on, Mr Markus, do you object to any of that affidavit material?

MR MARKUS: No, your Honour, subject only to relevance.

HIS HONOUR: Yes, very well. You yourself rely on the affidavit of Catherine Ruth Kelso which was affirmed on 12 September 2008.

MR MARKUS: Yes, if your Honour pleases.

HIS HONOUR: Mr Glover, do you object to any part of Ms Kelso’s affidavit?

MR GLOVER: No, your Honour. Also, your Honour, I was seeking leave for DIAC and MIU to become parties to this.

HIS HONOUR: Yes, you have an amended summons to that effect. I will consider that as part of the overall consideration of the matter. It is tied up obviously with at least one of the new grounds or one of the new decisions you wish to attack as a result of filing your amended application.

MR GLOVER: Yes, your Honour.

HIS HONOUR: So what we are considering today then is an amended application for an order to show cause which consists of the allegations made in the original application plus some new ones and we are also considering the orders you seek in an amended summons, one of those orders being the addition of a third and fourth defendant.

MR GLOVER: That is correct, your Honour.

HIS HONOUR: I have read your submissions and Mr Markus’, is there anything you want to put orally?

MR GLOVER: The only thing is I cannot see really why I should be in this position and, as far as I am concerned, I did everything that I thought was legal within the law. I did as I was told and to be, you know, put in a position like this I think is totally immoral.

HIS HONOUR: I said something about that to Mr Markus last time and Mr Markus said something back to me. You heard it.

MR GLOVER: Yes, but for the Immigration Department to use the law like they are I think is totally wrong. It is definitely not in the public interest. I think they are using the law to cover up their own errors at the people’s expense when there are other sections of the law that go into this in detail, like procedural fairness and things. When this happened, if I had been informed, there were so many other avenues I could have taken. I could have put in other applications, either left and come back or I put in – as I have stated, I was in a de facto relationship. I could put in de facto relationship – an application. There was no reason for me to put myself in this position to jeopardise my Supreme Court case and my de facto relationship.

HIS HONOUR: Yes, that is all?

MR GLOVER: Yes.

HIS HONOUR: Very well. I need not trouble you Mr Markus.

HIS HONOUR: On 22 August 2008 the plaintiff filed an application for an order to show cause why a writ of certiorari should not issue to quash a decision of the Migration Review Tribunal and related relief.

Before I go to the details of the legal merits of the plaintiff’s position I should record that the plaintiff protests about the position he finds himself in. He contends that everything he has done over many years has been, as he thought, lawful. He complains of a failure of the Department of Immigration to notify him of the position which he got into. He contends that if he had been informed of the correct position there are many other avenues he could have taken and he points out that there is no reason why he should have wished to do anything which would have jeopardised his Supreme Court proceedings or his relationship with Ms Lisowski.

Those matters do not go to matters of law or discretion and it would not be appropriate for me either to support what the plaintiff has said or, for that matter, to support what Mr Markus said in answer to similar complaints on an earlier occasion. It is necessary to examine, and examine only, the plaintiff’s position in law.

For the purposes of the present application, the first defendant, the Minister for Immigration and Citizenship, does not dispute the plaintiff’s evidence as to the background. That evidence is as follows. The plaintiff has been living in Australia since 1990. He suffered a back injury at work and since 1995 has been prosecuting proceedings in the Supreme Court of New South Wales seeking compensation.

On 30 January 2003 he applied for a tourist visa. He was informed that he could have a bridging visa pending the determination of the application for a tourist visa. On 8 December 2006 a solicitor acting for the plaintiff was told by a letter from the department that on 27 May 2003 the application had been granted, but that the tourist visa expired on 29 June 2003. A document of the department dated 15 December 2006 states that there is no record of the plaintiff having been notified of the decision to grant the visa in 2003 and a letter of 15 August 2007 from the department to the plaintiff apologises for that. On 13 December 2006 the plaintiff lodged a further tourist visa application. That application was refused on 21 December 2006.

The plaintiff then applied to the Migration Review Tribunal, the second defendant, for a review of that decision on 17 January 2007. By a decision which was dated 28 August 2007 and sent on 3 September 2007, the Tribunal affirmed the decision under review on the ground that the plaintiff did not satisfy clause 676.215 of Schedule 2 to the Migration Regulations. The Tribunal said:

Subclause 676.215(a)(ii)(B) refers to the Schedule 3 criteria 3001, 3003, 3004 and 3005. If one criterion is not met, subclause 676.215(a)(ii)(B) cannot be satisfied. Under condition 3001 the application for the Tourist Subclass 676 visa was to have been made within 28 days of the date on which the last substantive visa was held. It was not so made. The applicant’s last substantive visa ceased to be held on 29 June 2003.

The plaintiff desires this Court to enlarge the time within which to commence proceedings for the relief claimed. The point of that application is that under rule 25.06 of the High Court Rules certiorari must be applied for within six months of the decision to be quashed. If time is enlarged, the plaintiff desires the matter to be remitted to the Federal Magistrates Court. There is a controversy between the parties about whether that is possible, which may be put on one side for the time being.

The application in its original form sought to quash the decision of the Tribunal of 22 August 2007. The first defendant submits that the application so framed should be dismissed for the following reasons. The plaintiff was notified of the Tribunal’s decision on 3 September 2007. The plaintiff only commenced the present proceedings on 27 August 2008. The relevant rule required proceedings to be instituted within six months of the decision to be quashed. While there are no specific time limits for the other relief sought, mainly prohibition and mandamus, relief by way of certiorari is essential and if it were not granted, no other relief could be granted either.

The first defendant submits the time should not be extended because there was no explanation for the delay. Since that submission was served, the plaintiff filed evidence that he had requested a favourable exercise of the Minister’s discretion under section 351 of the Migration Act 1958 (Cth), that he thought that this request had a good chance of success, that the matter was put on hold pending the federal election held in November 2007 and that the plaintiff only sought legal advice after receiving the letter of 12 June 2008 notifying him that the Minister had rejected his request.

The plaintiff did have a legal representative while the matter was before the Tribunal. While the evidence which the plaintiff filed may be described as providing an explanation, it is not really a satisfactory one. Pursuit of the section 351 route does not prevent contemporaneous curial challenge and does not suspend the running of time for curial purposes.

The first defendant contend that, in any event, whether or not the explanation is satisfactory, time should not be enlarged and the application should be dismissed for the following reasons. I quote paragraphs 9 to 12 of the first defendant’s set of written submissions.

The only ground identified in the application is in the following terms:

“1. The second defendant, in making the decision, relied upon a fact that did not exist, thereby committing jurisdictional error.

Particulars

(a) That the first Defendant made a decision granting the plaintiff a visa on or about 27 May 2003.”

10. The ground of review, as pleaded, is misconceived for two separate reasons.

11. First, the ground amounts to no more than an assertion to the effect that, in finding that the plaintiff was granted a visa on or about 27 May 2003, the Tribunal made an error of fact. Even if the plaintiff was able to establish that this was the case, that would be an error within the Tribunal’s jurisdiction.

12. Secondly, and in any event, even if any such error could be categorised as going to the Tribunal’s jurisdiction, the relief sought would be futile as:

(a) the effect of cl 676.215(a)(ii)(b) of Schedule 2 and condition 3001 of Schedule 3 to the Migration Regulations 1994 (“the Migration Regulations”) is that, unless he held a substantive visa at the time, the plaintiff was required to make his application for the Tourist (Class TR) visa within 28 days of the date on which he last held a substantive visa;

(b) the plaintiff applied for the Tourist (Class TR) visa on 13 December 2006;

(c) as at 13 December 2006, the plaintiff did not hold a substantive visa;

(d) if no decision was made granting the plaintiff a substantive visa on or about 27 May 2003, the plaintiff still would not have held a substantive visa on 13 December 2006, and would not be in any better position to satisfy condition 3001, and therefore cl 676.215(a)(ii)(b) of Schedule 2 to the Migration Regulations than he was on the facts as found by the Tribunal.

In short, the first defendant’s point is that the plaintiff cannot succeed in the application he made for a visa on 14 December 2006 unless he can show it was made within 28 days of the substantive visa expiring. The first defendant contends that the last substantive visa held by the plaintiff expired more than 28 days earlier, namely, on 29 June 2003.

Paragraph 14 of the plaintiff’s additional submissions filed on 10 September 2008 states:

The plaintiff can only succeed on the ground pleaded in his Application to this Court if there is no evidence or other material to support the Tribunal’s conclusion of the 2003 visa being granted by a record being made.

The plaintiff contends that mere assertions of the grant of a visa in 2003 in correspondence do not suffice. That may well be correct. On 12 September 2008, however, the first defendant filed an affidavit affirmed by Catherine Ruth Kelso, a solicitor employed in the Sydney office of the Australian Government Solicitor. It stated that:

On 10 September 2008, an officer of the First Defendant, Mr Brendan Tegg, provided to AGS a five page extract from the electronic records relating to the Plaintiff held in a computer database known as the Integrated Client Services Environment (ICSE).

The affidavit exhibited that extract. One entry asserts that a “Tourist – Long Stay (TN 686)” visa was granted to the plaintiff on 27 May 2003. Other entries assert that it was effective until 29 June 2003. That is evidence supporting the Tribunal’s conclusion.

For those reasons, if the application stood unamended, it would be necessary to dismiss it. However, on 20 October 2008 the plaintiff filed an amended application. It purported to challenge several decisions other than 28 August 2007 decision. Further, an amended summons was filed on 27 October 2008 seeking to join the Department of Immigration and Citizenship as third defendant to the proceedings and the Ministerial Intervention Unit as the fourth defendant.

The first of the new decisions to be challenged was the decision of a delegate of the Minister to grant the plaintiff a tourist visa on 27 May 2003. That application is misconceived for two separate reasons. The first is that the actual decision was favourable to the plaintiff and the plaintiff cannot be said to be aggrieved by it. The second reason is that the substance of the complaint is not the decision itself, but the failure of the authorities to notify him of the decision. Their failure to notify him of the decision can have no bearing on the validity of the decision itself. Section 66(4) of the Migration Act makes it clear that:

Failure to give notification of a decision [to a visa applicant] does not affect the validity of the decision.

The second of the new decisions to be challenged was a so-called decision of the delegate of the Minister on 21 November 2006 to “cancel” the plaintiff’s bridging (Class WA) visa. That challenge is misconceived as the supposed cancellation took place by operation of law and did not involve the making of a decision. The position is that the plaintiff’s bridging visa ceased to be in effect upon the grant of his substantive visa, namely, the tourist visa granted on 27 May 2003, by operation of two statutory provisions. The first of those provisions is section 82(3) of the Act which provides that:

A bridging visa held by a non-citizen ceases to be in effect if another visa (other than a special purpose visa or a maritime crew visa) for the non-citizen comes into effect.

The second provision is subclause 010.511(b)(1) of Schedule 2 of the Migration Regulations 1994 as it stood on 27 May 2003 which provided that the plaintiff’s bridging visa permitted him to stay in Australia until the grant of a visa “if the Minister’s decision in respect of the substantive visa application” was to grant a visa. Accordingly, that second challenge must be rejected.

The third of the new decisions to be challenged is a decision of the delegate of the Minister made on 21 December 2006 refusing to grant the plaintiff a tourist (Class TR) visa. This challenge is misconceived because that decision is no longer the relevantly operative decision. That is because it was made the subject of an application for review to the Tribunal and the Tribunal has reached a decision on that application. The Tribunal decided to affirm the delegate’s decision and it is that decision of the Tribunal that the plaintiff sought to challenge in the application for an order to show cause in its original form filed on 22 August 2008. That challenge to the Tribunal’s decision has been rejected for reasons given above and, for those reasons, it would be in any event futile to grant the relief sought in respect of the delegate’s decision as the plaintiff could not satisfy the criteria prescribed for the visa.

The fourth decision which is now challenged is the recommendation of the Ministerial Intervention Unit of the Department of Immigration and Citizenship to the Minister dated 8 May 2008. It relates to a request to the Minister to consider whether to exercise his power under section 351(1) of the Act. That recommendation is only an administrative act by a public officer. It does not in itself affect or create any rights, duties or liabilities. The relevant departmental officer or officers was not or were not the repository of any statutory power or duty which could be the subject of an order made at the plaintiff’s request. That officer or those officers were persons who were assisting the Minister in the performance of his statutory functions by providing advice.

The relevant repository of power under section 351 was the Minister. It is the Minister, not the public servants assisting him, who is answerable for the way in which the section 351 request was dealt with and it is the Minister who is the proper defendant in relation to any application for orders concerning the decision made in respect of it. The Minister is under no duty to consider exercising the power and cannot be compelled to do so, but the fact remains the only relevant repository of power is the Minister. Even if the Court were prepared to quash the recommendation of the Ministerial Intervention Unit, that relief would be futile unless the Minister’s decision was also quashed.

The fifth decision under challenge is the decision of the Minister made on 3 June 2008 not to consider the exercise of his power under section 351 of the Act, that is to say, it was the decision arrived at after the recommendation of the Ministerial Intervention Unit had been given. That was a decision not to substitute for the Migration Review Tribunal’s decision a decision that was more favourable to the plaintiff. As noted above, there is no duty on the Minister to consider whether to exercise the powers granted by section 351. See section 351(7).

The Minister’s refusal to consider whether to exercise his power under section 351(1) does not involve jurisdictional error warranting the grant of relief by way of prohibition or certiorari. In any event, those remedies would serve no useful purpose for the reasons given by this Court in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicants S134/2002 (2003) 211clr441.html" class="autolink_findacts">211 CLR 441 at 461 paragraph 48:

In the express absence of a duty, mandamus would not issue without an order that the earlier decision of the Minister be set aside. Further, in that regard, there would be no utility in granting relief to set aside that earlier decision where mandamus could not then issue.

The sixth decision under challenge is advice given by the Ministerial Intervention Unit of the department to the plaintiff which is alleged to have communicated a decision dated 5 August 2008 in response to a request from the plaintiff’s solicitors to the Minister dated 1 July 2008 to consider whether to exercise his power under section 351. That challenge must fail for the reasons given above in relation to the fourth decision. Further, the challenge rests on an allegation of “institutional and personal bias”. There is no basis for that allegation.

So far as the new challenges to various decisions require an extension of time, no basis is made out for time to be extended. In any event, to do so would be futile for the reasons given above. The amended application is dismissed with costs.

AT 11.35 AM THE MATTER WAS CONCLUDED