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High Court of Australia Transcripts |
Last Updated: 3 August 2012
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Sydney No S150 of 2012
B e t w e e n -
VAN THUONG HOANG
Plaintiff
and
MINISTER FOR IMMIGRATION AND CITIZENSHIP
Defendant
Application for an order to show cause
GUMMOW J
TRANSCRIPT OF PROCEEDINGS
AT SYDNEY ON THURSDAY, 2 AUGUST 2012, AT 9.33 AM
Copyright in the High Court of Australia
MR L. KARP: May it please, your Honour, I appear for the plaintiff. (instructed by VIETAUST Lawyers)
MR A. MARKUS: If your Honour pleases, I appear for the defendant. (instructed by Australian Government Solicitor)
HIS HONOUR: Yes, Mr Karp.
MR KARP: Your Honour, the orders which I seek were in the submissions which were filed yesterday and if I may hand up a copy.
HIS HONOUR: Yes, I have them.
MR KARP: I understand my friend wishes a different procedure.
HIS HONOUR: Well, I will hear from him. Yes, Mr Markus.
MR MARKUS: Thank you, your Honour. Your Honour would have seen the submissions filed on behalf of the defendant. In substance, your Honour, we seek to convince your Honour that the proceedings would be futile because of the operation of the Migration Act – of the relevant provisions of the Act.
HIS HONOUR: This is paragraph 19 of the defendant’s written submissions?
MR MARKUS: Yes, your Honour.
HIS HONOUR: What do you say about that, Mr Karp?
MR KARP: Your Honour, I would say it is far from futile.
HIS HONOUR: Why is that?
MR KARP: Because once the decision of the delegate is set aside, the notification should be set aside as well and therefore the visa, which the plaintiff had at the time of the purported decision, would not be operative and would be, in effect, still in existence. Therefore he could proceed to obtain his permanent visa. I can take you through the legislation if you wish.
HIS HONOUR: Yes, can you do that?
MR KARP: Certainly. Your Honour, could I refer you to the legislation which is in the agreed joint bundle of authorities?
HIS HONOUR: Yes.
MR KARP: Can I also hand up additional legislative material?
HIS HONOUR: Yes.
MR KARP: Your Honour, the Migration Regulations which were applicable to this matter are under tab 2.
HIS HONOUR: Yes.
MR KARP: Your Honour will see that – it is not marked clearly, but item 1214C, the second page of those materials, that is part of the Schedule 1 of the Migration Regulations which go to the validity of an application. Your Honour will see that subclause (3)(a) says that the application for a Partner (Temporary) visa:
must be made at the same time and place as an application for a Partner (Residence) (Class BS) visa.
Now, continuing over another two pages to the Schedule 2 criteria, 801.22, your Honour will see that 801.221(2)(d) requires, as a criteria for satisfaction of the visa, that:
subject to subclauses (6A) and (7) –
which are immaterial here –
at least 2 years have passed since the application was made.
Over the page, where I believe my friend has set out the provision in bold, that is (6)(a):
the applicant is the holder - - -
HIS HONOUR: Wait a minute, 801.221.
MR KARP: Yes, 801.221(6)(a):
the applicant is the holder of a Subclass 820 visa –
Now, I believe my friend’s point is at 820.5 – which is the last page of tab 2 – 820.511. The 820 visa, which is, of course, the predecessor or the precludor to the permanent visa, permits the:
holder to travel to and enter Australia until:
(a) the holder is notified that his or her application for a Subclass 801 (Partner) visa has been decided –
Now, I understand my friend’s case to be that the notification of the purported decision on the 801 visa meant that whether the decision of the delegate is set aside, the notification means that my client no longer has an 820 visa and therefore, whether or not this decision is set aside, he cannot succeed in getting the 801 visa. Now, in my submission, that cannot be so because – and if your Honour will go to the bundle of legislation which I just passed up, if I can take your Honour to page 7 - - -
HIS HONOUR: This is section 65.
MR KARP: Section 65. That is the decision which no doubt your Honour knows very well. It deals with a decision to refuse or grant a visa, and if I can take your Honour to the following page, section 66, which says:
When the Minister grants or refuses to grant a visa, he or she is to notify the applicant of the decision in the prescribed way.
Now, what has to be notified is the decision to grant or refuse to grant a visa. Without the decision, in my submission, there can be no notification and it would follow therefore - - -
HIS HONOUR: So what meaning are you giving to the words “the decision” in 66(1)?
MR KARP: The decision is the determination of the delegate, in this case, as to whether a visa is granted and, in my submission, if that is set aside, then the notification which goes with it or which in a part of it must be set aside as well. In other words, it is of no operative effect. In the bundle of authorities under tab 3 there is - - -
HIS HONOUR: Bhardwaj.
MR KARP: Bhardwaj and there were different views expressed as to the legal effect and the operational effect of a decision as until it was set aside. I can take you through the reason for that, your Honour, but essentially what I rely on is the statement or the holding of yourself and Justice Gaudron at page 614, paragraph 51 that there is:
no reason in principle why the general law should treat administrative decisions involving jurisdictional error as binding or having legal effect unless and until set aside.
Your Honours, I think, repeated that at paragraph 53. The Chief Justice at page 604, paragraph 12 cited a judgment of Justice Finkelstein in the Federal Court, Leung v Minister, to the effect that:
an invalid administrative decision can have operational effect. For example it may be necessary to treat an invalid administrative decision as valid because no person seeks to have it set aside or ignored.
HIS HONOUR: Justices McHugh and Hayne agreed with Justice Gaudron and myself.
MR KARP: They did, with some variation. I think Justice McHugh disagreed with a couple of points that your Honours raised but not on this particular point.
HIS HONOUR: No, on this particular point I mean, yes.
MR KARP: Yes, they did. Going back to the legislation, I say that the notification and the decision are two parts of the one item or the one thing. There is nothing in the legislation which would mean that the notification and the decision can be treated separately or a decision which is treated as invalid or declared to be invalid by a court should be valid to the extent that it is notified to a visa applicant.
HIS HONOUR: Yes, very well. Now, what is the explanation for the delay? Where do I see that?
MR KARP: It is not on yet, your Honour. As I said in the written submissions, the affidavits are being prepared. Essentially, if I can make a statement from the Bar table, due to a mistake in instructions, the matter was commenced in the Federal Magistrates Court.
HIS HONOUR: Yes, that was a jurisdictional problem.
MR KARP: It was a jurisdictional problem.
HIS HONOUR: I think both parties are agreed that the Parliament and the Executive have achieved the result – the ultimate Court in the land is the only court with jurisdiction to decide this question.
MR KARP: Apparently that is the view of the Parliament, your Honour, yes.
HIS HONOUR: That is so, is it not, Mr Markus?
MR MARKUS: Yes, your Honour.
MR KARP: So due to a mistake in instructions, the matter was commenced there. When it was found out, we had it dismissed promptly and the matter was commenced in this Court within, I think, about two or three weeks.
HIS HONOUR: Yes, very well. Now, what do you propose then – this is paragraph 4 of your submissions, is it?
MR KARP: Yes, your Honour.
HIS HONOUR: The affidavits in order 1 would deal with this question of extension under the section, would they?
MR KARP: They would, yes.
HIS HONOUR: A delay point.
MR KARP: Yes.
HIS HONOUR: That would complete the evidentiary material from your side, I suppose, would it?
MR KARP: It would, your Honour. The Minister has been kind enough to provide the Department’s file via an informal process of discovery or production.
HIS HONOUR: Thank you.
MR KARP: Thank you, your Honour.
HIS HONOUR: Mr Markus, I have no view one way or the other at the moment beyond the view that there does seem to be a point worth agitating in all of this as to the statutory construction of.....that being so, I think the better course is to proceed as indicated in paragraph 4 of the written submissions by Mr Karp at the moment as to steps 1, 2, 3 and 4. Then I think the matter should come back to me and I will decide whether it should be dealt with on a final basis by reference into a Full Court of three Justices. That might be the best thing to do. I will have to think about that again when I have seen this material when steps 1, 2, 3 and 4 have been followed. Is there anything you want to say about that, Mr Markus?
MR MARKUS: No, your Honour.
HIS HONOUR: It is a question then of finding a date in September, is it not? I think it would be a half-day case, would it not?
MR KARP: I would imagine it would be, your Honour, yes.
HIS HONOUR: Yes, I would have thought so. The difficulty with having it dealt with by one Justice in the first instance is that if you succeed, the Minister may then want to take the matter further, I imagine. So it is best if it be dealt with by a Bench of three in the first instance, I suspect. Tuesday, 18 September, is that convenient?
MR KARP: Yes, your Honour.
HIS HONOUR: Mr Markus?
MR MARKUS: Thank you, your Honour.
HIS HONOUR: Pardon me a minute and I will check that is right. Very well. This morning I make orders:
I think you had better have provision for that –
on or before 7 September 2012.
Is there anything else?
MR KARP: Nothing further, your Honour.
MR MARKUS: Nothing further, your Honour.
HIS HONOUR: Thank you, gentlemen.
AT 9.51 AM THE MATTER WAS CONCLUDED
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