Lei v. Minister for Immigration and Citizenship [2011] HCATrans 269 (30 October 2012)

Last Updated: 31 October 2012

[2012] HCATrans 269

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M47 of 2011

B e t w e e n -

YUHUI LEI

Plaintiff

and

MINISTER FOR IMMIGRATION AND CITIZENSHIP

Defendant

Application for order to show cause

HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON TUESDAY, 30 OCTOBER 2012, AT 9.45 AM

Copyright in the High Court of Australia

MS H. HU: Madam Interpreter, your Honour, I am the plaintiff’s daughter. My mum is just in the bathroom. She will be a mere second. My apologies.

HIS HONOUR: Ms Lei, thank you. In the meantime we might use the opportunity to first take Mr Knowles’ appearance, but then, second, have the interpreter sworn but, Ms Lei, if you would be good enough to sit at the Bar table.

MS HU: Yes, your Honour.

MR R.C. KNOWLES: If it please the Court, I appear for the defendant in this matter. (instructed by the Australian Government Solicitor)

HIS HONOUR: Yes. Perhaps if the interpreter could be sworn or affirmed.

CHIA-NING CHONG, affirmed as interpreter.

HIS HONOUR: Madam Interpreter, thank you. I think, Ms Lei, your mother may have returned to the courtroom. Perhaps if she could come forward. Ms Lei, if you would be good enough to sit with your mother as well, I would be grateful for that.

MS HU: Yes, your Honour.

HIS HONOUR: Now, how are we going to organise this? If the interpreter sits next to the plaintiff and her daughter next to the interpreter, perhaps, Madam Interpreter, if you would say to the plaintiff this. The Minister asks me to dismiss her application. What will happen this morning is that I will first hear from counsel for the Minister. Ms Lei, the plaintiff, will then have a chance to speak to me about whether her claim should be dismissed.

But the first thing I will do is hear from the Minister and if you, Madam Interpreter, could help the plaintiff to understand what is being said, I will make sure that Mr Knowles for the Minister goes slowly. The only other thing I would say is that the plaintiff has her daughter with her in court. If she wants to speak to her daughter or consult with her daughter, she should do so, and she should take the time to do that if that is necessary.

THE INTERPRETER: Sorry?

HIS HONOUR: She should take the time to do that if that is necessary.

THE INTERPRETER: Okay.

HIS HONOUR: Now, Mr Knowles, you, as you have said, announced an appearance for the Minister. You, as I understand it, move on the summons of 19 October 2012, is that right?

MR KNOWLES: That is correct, your Honour.

HIS HONOUR: And there is an affidavit in support of that summons of Maria Ngo sworn on or affirmed on 19 October, is that right?

MR KNOWLES: That is right, your Honour.

HIS HONOUR: So, Madam Interpreter, the two documents that the Minister will particularly refer to are the summons and affidavit of Ms Ngo and there is then a written outline of submissions, is that right?

MR KNOWLES: That is right, your Honour.

HIS HONOUR: And have all of those documents been given to Ms Lei, the plaintiff?

MR KNOWLES: My understanding is that they have been, your Honour, in respect of the first two. There is an affidavit of service but I have not actually checked directly with Ms Lei as to whether or not the documents have been received, but the affidavit of service I would seek leave to file with the Court for the sake of completeness.

HIS HONOUR: Yes.

MR KNOWLES: In respect of the last document, that is, the written submissions dated 25 October 2012, I am instructed that those submissions were sent by express post on 25 October 2012. It might be that it is appropriate to check with Ms Lei that she has actually received that document, your Honour.

HIS HONOUR: Could you ask the plaintiff, please, whether she has received a document called “Defendant’s Outline of Submissions”?

MS Y. LEI: Yes, I do.

HIS HONOUR: Yes, thank you.

MR KNOWLES: Thank you, your Honour.

HIS HONOUR: Now, Mr Knowles, I have looked at that document. Before dealing with it, I see that the plaintiff has also filed an affidavit sworn on 29 October upon which I assume she intends to rely?

MR KNOWLES: Yes, your Honour, and I have seen that affidavit.

HIS HONOUR: You should proceed on the basis that that affidavit is read and received.

MR KNOWLES: Thank you, your Honour. Can I proceed on the basis that the affidavit of Ms Ngo’s has also been read as well?

HIS HONOUR: Yes.

MR KNOWLES: Thank you, your Honour. Your Honour, in this case your Honour will have seen there is a procedural history that is set out in the defendant’s outline of submissions. I will just pause, your Honour, for the interpreter to interpret as I go along.

HIS HONOUR: Yes.

MR KNOWLES: The plaintiff applied for a business skills visa in 2002. That visa application was refused. It was the subject of proceedings before the Migration Review Tribunal – the refusal, that is. The Migration Review Tribunal ultimately affirmed the decision. There was in the intervening period a decision by the Migration Review Tribunal which was the subject of successful judicial review proceedings before the Federal Magistrates Court, such that the matter was remitted back to the Tribunal for further consideration according to law. But ultimately, there was a decision affirming the delegate’s decision to refuse to grant a business skills visa.

HIS HONOUR: And immediately we are concerned with the application that the plaintiff made for the Minister to exercise power under section 351 of the Act, is that right?

MR KNOWLES: That is right, your Honour. In the intervening period there were a number of judicial review proceedings from the Federal Magistrates Court through the Federal Court and then there was an application even for special leave to appeal to this Court. All of those proceedings were unsuccessful. Then immediately after that, or I should say within a month or so after that, in fact on 14 May 2009, there was a request made to the Minister that the Minister exercise the power in section 351 of the Migration Act 1958. That request your Honour will find at exhibit MN-2 to the affidavit of Ms Ngo and I do not think there is any dispute that that is the only request in question in this case.

There was then the letter from the Department of Immigration and Citizenship dated 6 May 2011 which is exhibited to Ms Lei’s affidavit of 2 June 2011 at Exhibit 1. Your Honour will see there that what was said by the department was that the Minister had personally considered Ms Lei’s case and had decided that it would not be in the public interest to intervene and, on that basis, had decided not to exercise the power under section 351 of the Act. Now, in this case, your Honour, the relief that is sought by Ms Lei is set out in the application. It is not framed precisely in terms of writs of certiorari and mandamus, but that seems to be the effect of what is sought, essentially that there be a sending back of the matter to the Minister and - - -

HIS HONOUR: Ms Lei’s complaint, as I understand it, is the Minister did not get to the right answer that she wanted, is that right? That is the essence of it?

MR KNOWLES: Yes, your Honour, that is my understanding of it as well. There is also an unparticularised claim for compensation but, in my submission, that claim is not elaborated on. It is not supported by evidence before your Honour, nor is it substantiated in any way and it, like the other claims, in my submission, is also bound to fail. The reason why the Minister has brought the application, your Honour, is that the application made by the plaintiff for an order to show cause, in the Minister’s submission, does not disclose an arguable case, and the Minister makes that submission on the basis of recent authority of this Court in Plaintiff S10/2011 - - -

HIS HONOUR: The Court considered these powers and gave its decision in September this year.

MR KNOWLES: Yes, your Honour.

HIS HONOUR: And you refer in your outline of submissions particularly at page 5 to what the Court said.

MR KNOWLES: That is so, your Honour, and in particular what appears in paragraphs [99] to [100] of the reasons for judgment of Justices Gummow, your Honour, Justice Crennan and Justice Bell and essentially, as your Honour will no doubt be aware, what was found was that the exercise of power pursuant to these provisions did not in that case provide for there being any requirement that the Minister afford a person procedural fairness. In particular, claims had been made in that case that there was a requirement that the Minister consider particular matters or particular circumstances advanced by the plaintiffs in those matters the subject of reasons for judgment in Plaintiff S10, and that argument was rejected in that case. In my submission, the present case is indistinguishable from that case in terms of the application of principle. That is that this is, as it was in Plaintiff S10, an application or a request for the Minister to exercise the power under section 351. The Minister’s power is not amenable to the review which the applicant seeks in the circumstances of the present case.

HIS HONOUR: Now, the plaintiff says in her most recent affidavit that there have been various events and transactions which, as I understand it, she says affect her contributions to Australia. What do you say about the significance of the transactions and events that she there describes?

MR KNOWLES: Well, all I would say in relation to those matters, your Honour, is that that was a matter for the Minister to have regard to if he saw fit to do so in considering whether it would be in the public interest to exercise the power. But I do note, as was set out in Plaintiff S10 at paragraph [99] in subparagraph (vi) that it was said by the majority in the majority reasons for judgment that:

while the personal circumstances of an individual may be taken into account, they are not a mandatory relevant consideration.

That is pertinent to the question that your Honour poses. In my submission, it does not necessarily give rise to any grant of relief: firstly, whether the Minister had regard to it at all; secondly, whether the Minister had regard to it but did not find that it was sufficiently significant to provide for the Minister to intervene and exercise the power pursuant to section 351 of the Act.

So essentially, your Honour, the basis of the application is the recent authority in Plaintiff S10, but I also do note, as is set out in the outline of submissions, that, in any event, there are real questions about the utility of any relief that might be granted, particularly relief in the nature of a writ of mandamus. In that regard, I refer to the reasons for judgment in
Ex parte Applicants S134 of 2002. That is referred to in the outline of submissions.

HIS HONOUR: Did we not refer to those considerations in S10? I thought we did. Perhaps I am mistaken.

MR KNOWLES: Yes, I have no doubt that that was referred to. Particularly in paragraph [100], your Honour, there was a reference there, and I am sure it is elsewhere as well, to the fact of the power being

non-compellable, so to speak, and that is referred to about two-thirds or three-quarters of the way through paragraph 100 where it says:

the powers conferred upon the minister (as personal, non-compellable, “public interest” powers)

And obviously in this case the power is non-compellable because a subsection within section 351 of the Act says that the Minister has no duty to exercise the power that is bestowed by that provision.

HIS HONOUR: But as I understand it, Mr Knowles, it comes to this. You say that this proceeding must fail because of what was decided in September this year?

MR KNOWLES: That is correct, your Honour.

HIS HONOUR: Yes. Perhaps if I hear from the plaintiff.

MR KNOWLES: Thank you, your Honour.

HIS HONOUR: The Minister says that your application must fail. He says it must fail because the court decided these questions against you or against the arguments you want to advance in September this year. That is the nature of the case you have to answer. Now is your chance to make your submissions.

MS LEI: Thanks. I am not sure if the Immigration solicitor received my file yesterday and another file I submitted to High Court on 6 September 2012, and I think to save time we should talk the things from the nearest time and to back and - - -

HIS HONOUR: Go on.

MS LEI: Because the solicitor did not mention these two files, dated yesterday, 29 October.

HIS HONOUR: There is an affidavit of you of - - -

MS LEI: Yes, my affidavit.

HIS HONOUR: Yes, and there is an affidavit of 6 September, and we have both of those.

MS LEI: Yes. Since 1989 I work for Australian company, MM Cables, and did contribution about 50 million US dollars export to China. For those contributions, the solicitor of Immigration Department did not mention this just now. But the argument in my affidavit is that – can I read it? “I, Yuhui Lei” - - -

HIS HONOUR: I have read the affidavit.

MS LEI: Yes.

HIS HONOUR: Yes, I have read that and I think I understand it, but tell me if there are particular things in it that I need to notice. I have read it. I think I understand it.

MS LEI: Yes. I think just the Immigration Minister’s intention to dismiss of my application and there are no just specific reasons, I think only consider public interest, but I think I can comply with this requirement in my affidavit as dated yesterday.

HIS HONOUR: Well, as I say, I have read what is in the affidavit.

MS LEI: Yes. I do not need to – I provide my contribution in my - just private company and at least at the moment MMC Pacific International with the investment for the Three Apples Childcare business and it is investing now and that is the main contribution is from my company, from my investment.

HIS HONOUR: The only question for me is, can you show that the Minister’s decision was one which the law did not allow him to make?

MS LEI: Yes, because - - -

HIS HONOUR: I am not asked, and I cannot, decide whether the Minister made a good decision or a bad decision. I can only decide whether what he did was lawful.

MS LEI: Yes, and I stress the point for the Minister to make the mistake in my application, the first thing, I used to work in Shenyang Technical Import & Export company as a contractor, and I received a commission from what the company charged to their clients, clients that I brought to this company. I have no affiliation with this company’s ownership. I was self-employed. I sent a letter to the Immigration office during my first permanent resident visa application which was lodged on 6 March 1996 and I received a reply that the department does not consider contractor business as a part of this application. This reason is incorrect and unfair.

The second, in my new application dated 6 March 2002, I stated that the commission I received from MM Cables was a result of working as an MM Cables’ agent. I established my own private company, Hua Mai, exclusively for MM Cables’ business needs. The date I received this commission from MM Cables’ correspondence corresponds to the date I established Hua Mai. This commission I received and the agent work I completed for MM Cables have no connection with Shenyang Technical Import & Export Corporation. The Immigration officer who assessed my application failed to consider this. The third, my private - - -

HIS HONOUR: I have read these - - -

MS LEI: Yes, sorry.

HIS HONOUR: No, no, I have read these statements, yes. Is there anything additional, any more that you would want to say other than what is in this document?

MS LEI: No.

HIS HONOUR: No?

MS LEI: No.

HIS HONOUR: Yes, there is nothing else you wish to say to me? Do you want to talk to your daughter before you sit down? As I say, the Minister wants to stop this action. This is your last chance to speak before I decide the case. Do you want to speak briefly to your daughter to see whether there is anything else you would wish to say? Ms Lei, do you wish to add anything? Is there anything further you wish to say?

MS LEI (through interpreter): Can I take a few minutes?

HIS HONOUR: Yes, of course.

MS LEI: I am so sorry, I need translator.

HIS HONOUR: Yes.

MS LEI: I think the Minister’s decision’s problem is they support the illegal activity of my brother and sister’s invasion of my private company.

HIS HONOUR: I understand that is - - -

MS LEI: Sorry, my English is not - - -

HIS HONOUR: No, I understand what you have said because this is what I had understood you to say in your affidavit, that the Minister’s decision,

as you say, supports wrongdoing that has been – things that have been done wrong to you by close relatives, is that right?

MS LEI: Yes.

HIS HONOUR: Yes, I understand that. I further understand that the wrongs you say that have been done have cost you a very large amount of money.

MS LEI (through interpreter): I consider that the administrator did not follow the business law which consider the public interest.

HIS HONOUR: Yes, I understand this argument. I had understood it from what you wrote.

MS LEI: Especially during the whole intervention period and that they use a lot of illegal way.

HIS HONOUR: Yes, I understand that. Yes, thank you very much.

On 3 June 2011, the plaintiff filed an application for an order to show cause in which she sought orders, in effect, requiring the Minister for Immigration and Citizenship to grant to her a business skills (residence) class BH visa or its equivalent. Although the application for an order to show cause was drawn by the plaintiff herself, it is appropriate to proceed on the basis that she seeks to challenge the Minister’s decision made under section 351 of the Migration Act 1958 (Cth) not to exercise his power to determine that it would be in the public interest that the plaintiff be granted the visa she sought. I say it is appropriate to treat the application for an order to show cause in that way having regard to the history that lies behind its filing.

In March 2002, the plaintiff sought a business skills visa of the kind I have described. That application was refused by a delegate of the Minister. Her application for a review of that refusal by the Migration Review Tribunal was unsuccessful but, by consent of the parties, the Tribunal’s decision to affirm the delegate’s decision was later set aside and the matter was remitted to the Tribunal for further consideration.

In May 2007, the Tribunal, differently constituted, affirmed the delegate’s decision. Thereafter the plaintiff applied for judicial review of the Tribunal’s decision by the Federal Magistrates Court, which dismissed the application. The plaintiff appealed to the Federal Court from the judgment of the Federal Magistrates Court, but that court dismissed the appeal. She sought special leave to appeal to this Court from the judgment of the Federal Court, but that application was dismissed.

In May 2009, the plaintiff asked the Minister to exercise the power given to the Minister by section 351 of the Act to substitute for a decision of the Tribunal under the Act another decision more favourable to the applicant but, as I have already recorded, the Minister, having personally considered her case, decided that it would not be in the public interest to intervene.

The plaintiff, in the course of submissions today and by reference to an affidavit that she had affirmed on 29 October this year, pointed to a number of dealings that had occurred since her arrival in Australia in which she alleges close relatives of hers misused very considerable sums of money which she had provided or to which she was entitled in connection with business enterprises with which she was associated.

One of the central complaints she would make about the Minister’s decision is that, by refusing to substitute a decision more favourable than that reached by the Tribunal, the Minister in effect sanctions the wrongdoing that has been done to her. This, she submits, is contrary to the public interest and the Minister on that account should not have made the decision which he did.

The central difficulty which the plaintiff faces in her proceeding against the Minister is that section 351 of the Migration Act gives the Minister a power to substitute a more favourable decision that is a personal and non-compellable public interest power.

In September this year, the Court published its reasons in Plaintiff S10/2011 v Minister for Immigration and Citizenship and Anor (2012) 290 ALR 616; [2012] HCA 31. The Court considered whether relief of the kind which the plaintiff would seek in this case could be ordered in cases where the Minister had refused to exercise or had refused to consider the exercise of personal, non-compellable public interest powers given by the Migration Act and in particular by section 351, among others. The Court held in Plaintiff S10/2011 that the powers given by section 351 are not conditioned on observance of the principles of procedural fairness. They are, as I have described, personal, non-compellable public interest powers as to which the personal circumstances of an individual may be taken into account but are not a mandatory relevant consideration. Relief of the kind sought by the plaintiff was refused in Plaintiff S10/2011.

It follows from what was decided in Plaintiff S10 that the proceeding instituted by the plaintiff must now be determined to have no prospect of succeeding. For these reasons it follows that the plaintiff’s proceeding must stand dismissed. Mr Knowles?

MR KNOWLES: Your Honour, the Minister would seek the usual order that costs follow the event.

HIS HONOUR: Yes. There is, in my opinion, no reason why the ordinary rule should not follow. The proceeding must stand dismissed with costs. Those orders are made.

AT 10.27 AM THE MATTER WAS CONCLLUDED