Huynh v Minister for Immigration and Citizenship & Anor [2012] HCATrans 45 (24 February 2012)

Last Updated: 28 February 2012

[2012] HCATrans 045

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S49 of 2012

B e t w e e n -

HOAI HAN HUYNH

Applicant

and

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

Application for injunction

HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 24 FEBRUARY 2012, AT 9.30 AM

Copyright in the High Court of Australia

MR H.H. HUYNH appeared in person.

HIS HONOUR: Mr Huynh, you wish to have an interpreter, do you?

MR HUYNH: Yes.

INTERPRETER, affirmed as interpreter.

MR J.D. SMITH: If it please the Court, I appear for the first respondent. (instructed by DLA Piper Australia)

HIS HONOUR: Thank you. Mr Huynh, your application today is what?

MR HUYNH: Your Honour, to ask for injunction, your Honour.

HIS HONOUR: An injunction until the determination of your application for leave to appeal?

MR HUYNH: Yes.

HIS HONOUR: Thank you. Mr Smith, do you oppose that?

MR SMITH: Yes, your Honour.

HIS HONOUR: In a nutshell, on what grounds?

MR SMITH: On the basis that there is no serious question to be tried.

HIS HONOUR: Yes, thank you. Yes, Mr Huynh, what do you want to say?

MR HUYNH: I have a written letter here I would like to read out to you, your Honour.

HIS HONOUR: Is that in English?

MR HUYNH: Yes. Would you like me to show it to you?

HIS HONOUR: I think if you just read it out.

MR HUYNH: I ask for an injunction restraining the Minister for Immigration and Citizenship from removing me from Australia on Friday, 24 February 2012 at 11.35 am. There is a proceeding, No S49 of 2012, before the High Court in which I am seeking leave to appeal the judgment of her Honour Bell J given on 14 February 2012. Further, I am and have been preparing to file an appeal from the decision of the Refugee Review Tribunal affirming the decision of the delegate of the Minister to refuse me protection visa.

I am very fearful of my life, that if I am returned to Vietnam I will be killed, persecuted and tortured and face serious harm that.....of the authorities. The communists in Vietnam killed my father in the presence of mother and there is still communism in Vietnam. I am now a Christian and fear of persecution based on my religions of Christianity were not considered by the Refugee Review Tribunal in its decision. There is serious and various question of law regarding the procedural injustice.....me by the RRT.

I, with my mother, have been seriously seeking legal representation but have not found one due to the funds. I have written to the Law Society of New South Wales and Bar Association and.....for legal aid. I ask the Court to appoint a legal representation for me in this matter and to represent me in the matter of the RRT which I will file in five, seven days time. And the Court should grant me an injunction in the interests of the administration of justice and procedural fairness in according with my common law rights under the Constitution of Australia. Thank you, your Honour.

HIS HONOUR: Thank you. The proceedings in the Refugee Review Tribunal have not been started yet?

MR HUYNH: No, your Honour.

HIS HONOUR: You are going to start them in five or seven days?

MR HUYNH: Yes.

HIS HONOUR: I see. You are relying on your affidavit which was filed on 23 February in which you described how Mr Campbell rang you up and told you - - -

MR HUYNH: Yes.

HIS HONOUR: You rely on that affidavit?

MR HUYNH: Yes.

HIS HONOUR: I have read that affidavit. Do you have any objection to it, Mr Smith?

MR SMITH: No, your Honour.

HIS HONOUR: You do not wish to cross-examine on it?

MR SMITH: No, your Honour.

HIS HONOUR: Is there anything else you want to say, Mr Huynh?

MR HUYNH: No, your Honour.

HIS HONOUR: Have a seat.

MR HUYNH: Thank you. Sorry, your Honour?

HIS HONOUR: Yes.

MR HUYNH: There are some documents in support for my case from Father Peter Henry I would like to show to your Honour.

HIS HONOUR: Do you want to tender those documents?

MR HUYNH: Yes.

HIS HONOUR: Yes. Show them to Mr Smith.

MR SMITH: Your Honour, without conceding their relevance, I do not object to them.

HIS HONOUR: Very well. You can sit down, Mr Huynh. Those documents collectively will be marked exhibit A.

EXHIBIT: Exhibit A.....Documents of the applicant.

HIS HONOUR: Is there anything more you want to argue, Mr Huynh?

MR HUYNH: No, your Honour.

HIS HONOUR: Thank you.

In circumstances explained in a judgment delivered yesterday, an injunction was granted until 4.00 pm today to the plaintiff, Hoai Han Huynh, preventing the first defendant, the Minister for Immigration and Citizenship, from removing him from Australia. Arrangements had been made for the plaintiff to be removed to Vietnam on a flight departing at 11.35 am today. The injunction prevents that happening. In view of the urgency of the matter, the injunction was granted in the plaintiff’s absence.

The plaintiff is present today and he applies for a further injunction of the same kind to operate until the determination of an application he has filed for leave to appeal from orders of Bell J made on 14 February 2012. The application has two bases. One is to preserve the subject matter of the proposed appeal. The other concerns certain contemplated proceedings in the Refugee Review Tribunal.

Bell J’s orders had the effect of refusing an application by the plaintiff for constitutional writs. The application was directed to a decision dated 25 October 2010 made by the Administrative Appeals Tribunal, which is the second defendant, affirming a decision of the first defendant on 23 July 2010 cancelling the plaintiff’s Return (Residence) (Class BB/155) visa by reason of his failure to pass the character test provided for in s 501 of the Migration Act 1958 (Cth).

I should indicate that the application being presented today is supported by an affidavit filed on 23 February 2012 by the plaintiff in which he narrates his dealings with an officer of the Department of Immigration and Citizenship in relation to the plans for him to be removed from the country at 11.35 am today and also some documents, which have been marked exhibit A, which, without summarising them exhaustively, fall into categories of the following kinds: his appeal to the Court of Criminal Appeal which was determined some years ago, dealings with clergymen in relation to his conversation to Christianity, documents indicating his concern for his mother, a psychiatric assessment of him and various certificates evidencing achievements during his time in prison.

The background is as follows. The plaintiff was born in Vietnam in 1982. Shortly thereafter, as he said this morning, his father was killed by communists before his mother’s eyes. In 1984 she left Vietnam. The plaintiff was cared for there by his grandparents. His mother sought and was granted refugee status in Australia. In 1995 he joined his mother in Australia and he has lived here since then, apart from one visit to his grandmother in Vietnam.

At the age of 14 he was expelled from school. He has a long criminal record. The most serious offences took place in 2002. They were, first, involvement in an armed robbery in which a shopkeeper died in relation to which the plaintiff pleaded guilty to manslaughter and, secondly, another armed robbery in a grocery store involving the use of a gun three days later. For the first offence he was sentenced to seven years and seven months imprisonment, for the second he was sentenced to nine years imprisonment. He was released on parole on 29 September 2010 and transferred to the Villawood Detention Centre.

On 22 June 2011, the plaintiff very belatedly applied to the Federal Court of Australia for review of the Tribunal’s decision. On 23 November 2011, Edmonds J refused the necessary extension of time on the ground that it would be futile to grant the application for it because the plaintiff had no prospects of succeeding in his challenge to the Tribunal’s decision on the sole ground advanced. That ground was that the Tribunal allegedly failed to consider as a primary consideration what the plaintiff asserted were Australia’s international obligations to his mother as a refugee. The supposed obligation was said to arise from Article 23.1 of the International Covenant on Civil and Political Rights:

“The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.”

Edmonds J decided that Article 23.1 did not create an obligation, hence failure to have regard to it as a primary consideration did not constitute jurisdictional error.

On 25 January 2012, the plaintiff instituted proceedings in this Court for constitutional writs. On 3 February 2012, those proceedings came before Crennan J who granted an injunction against removal until 14 February 2012 and adjourned the matter to be heard by Bell J on that day. The plaintiff’s application was based on three grounds. Bell J rejected it for the following reasons. The first ground concerned the Article 23.1 point. In substance, Bell J agreed with Edmonds J’s reasoning. The second ground was dealt with thus:

The plaintiff’s second ground asserts that he was denied procedural fairness because the Tribunal did not inform him, before affirming the delegate’s decision, that it doubted his conversion to Christianity.

The plaintiff was represented by solicitors and counsel before the Tribunal. Prior to the hearing, the Minister served a statement of facts and contentions on the plaintiff’s solicitors. In that statement, the Minister identified a number of factors suggestive of a conclusion that the plaintiff presents an unacceptable risk to the Australian community. The fifth of those factors was expressed in these terms:

“To the extent that the applicant relies upon the applicant’s conversion to Christianity as a factor relevant to the risk of re-offending, it is contended that there is neither any evidence of the applicant having converted to Christianity nor evidence of the applicant having practised Christianity whilst he has been in prison.”

The plaintiff had the opportunity to adduce evidence and to place submissions before the Tribunal respecting his asserted conversion to Christianity. Procedural fairness did not require the Tribunal to expose its provisional views for comment before making its decision: Minister for Immigration and Citizenship v SZGUR [2011] HCA 1; (2011) 241 CLR 594 at 599 [9] per French CJ and Kiefel J.

The third ground concerned the Tribunal’s conclusion that the plaintiff poses an unacceptable risk of harm to the Australian community and that none of the other primary considerations in Ministerial Direction 41 outweigh that unacceptable risk of harm. Bell J said:

The plaintiff asserts that the finding [of an unacceptable risk of harm] is contradicted by the reports of the Parole Authority. As the Minister submits, findings of fact do not amount to jurisdictional error because they are wrong or because they are inconsistent with other evidence before the decision-maker. To the extent that the plaintiff’s submission is to be understood as the contention that there was no evidence to support the Tribunal’s finding that he poses an unacceptable risk of harm and, for that reason, the finding was illogical, irrational and not based on findings or inferences from facts supported by logical grounds, such that no rational or logical decision-maker could have reached it, as discussed in Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611, the argument faces the hurdle that the Tribunal had before it evidence of the plaintiff’s criminal record and his conduct in prison, including instances when he had been disciplined for failing a prescribed urine test due to morphine use and, as recently as March 2009, when he was disciplined for possessing a prohibited sharpened instrument.

The plaintiff’s application for leave to appeal against Bell J’s orders contained seven grounds which may be grouped as follows.

The first ground is:

2.1(a) Her Honour Bell J Erred in Law by concluding and finding that the Federal Court refused to make an order under Section 477A(2) of the Migration ACT 1958 (the Act). Given the fact that the Federal Court did make an order under Section 477A(2) even though the outcome was not the one that is was seeking from the Federal Court.

That ground appears to refer to the following statement by Bell J:

An appeal may not be brought to this Court from a judgment of the Federal Court refusing to make an order under section 477A(2).

Bell J was correct to suggest that Edmonds J refused to make an order under s 477A(2). That subsection gives the Federal Court power to extend time. Edmonds J refused to make an order extending time. Hence the plaintiff’s first ground has no prospect of success in any appeal for which leave might be granted. The second and third grounds deal with the Article 23.1 point. They are:

2.2(b) Her Honour Bell J Erred in Law by concluding and ruling that Section 36 of the act which allows claims for a protection visa to be made by members of the same family unit as a person who has made specific claims under the Refugee Convention went beyond Observance of the International Obligations imposed by the Refugees Convention.

2.3(c) Her Honour Bell J Erred in Law for failing to find and rule that Australia owes my Mother an Obligation and duty that the recognition of the family as the natural and fundamental group of Society entitled to protection by the Society and the state under the International Covenant for Civil and Political Rights (ICCPR) Imposes an Obligation respecting the maintenance of family unity in the case my Mother whose status is that of a Refugee comes under the four primary considerations in Direction 41.

The reasoning of Bell J in relation to these grounds was entirely correct. An appeal based on challenge to it has no prospects of success.

The fourth ground is:

2.4(d) Her Honour Bell J Erred in Law for the failing to find and rule that the Administrative Appeals Tribunal denied me procedural Fairness respecting my asserted conversion to Christianity irrespective of the fact that counsel for the Minister served a statement of facts and contentions on my solicitor about my conversion to Christianity. Given the fact that, the Tribunal is bound by Law to inform me and invite me to make comments or reduce further materials at the hearing which it did not do or after the hearing and the writing of the decision that it mindful of taking those matters into Consideration in coming to a conclusion in the decision of the matters which advise to my interests.

The reasoning of Bell J in relation to this ground has already been quoted. The ground in question has no prospects of success.

The fifth ground is as follows:

2.5(e) Her Honour Bell J Erred in Law by ruling that the evidence before the Tribunal of Criminal record and my conduct in prison including instances when I have been disciplined for failing to prescribed Urine test due to Morphine use and for possessing a prohibited sharpened instrument was not Contradicted by the reports of the Parole Authority. Given the fact that the parole Authority had to be satisfied that I have changed and Rehabilitated from my earlier conducts whilst in prison and pass other strict test and be satisfied that I was not a risk to Society, the Australian Community before signing off and releasing me and granting me Parole to rejoin Society.

The reasoning of Bell J on this point too was quoted above. The duty referred to in the second sentence of ground 2.5(e) did not exist in the circumstances of this case. The challenge to Bell J’s reasoning has no prospects of success.

The sixth and seventh grounds deal with the subject of adjournments. They are as follows:

2.6(g) Given that I am an unrepresented applicant, Her Honour erred for not granting me an adjornment and I was extremely prejudice by Her Honour’s refusal as the relevance of the New material was Vital to the Tribunal’s decision with regards to my conduct whilst in prison and why the Parole Authorities granted me Parole.

2.7(f) Her Honour Bell J Erred in Law for not granting me an adjornment in the matter for 28 days so that I could provide the court with additional Relevant New materials and evidence which was before the Tribunal which the Tribunal did not refer nor did it had regard to the material concerned in coming to a decision.

The hearing before Bell J on 14 February commenced at 11.00 am. At one stage the plaintiff explained that he had had difficulty in going through some documents served on him the previous evening because of a power failure at Villawood. He said, “Power was restored very late and I was already asleep”. He also said he was in the process of preparing further materials but did not know what they were because he had to get help from other people. Bell J pointed out that Crennan J had adjourned the matter in order to give the plaintiff an opportunity:

to put the things that you wanted to put before the Court in order . . . that they may be presented today at this hearing –

and asked whether there was some reason why he had not been able to put all the material he wished to put before her. The plaintiff replied:

That is because I forgot a few things and I could not remember some other things.

Bell J asked what additional material it was the plaintiff wished to obtain and put before the Court. He said, “I will submit in future.” Bell J then said:

The Minister opposes the adjournment of the proceedings to give you that opportunity. In light of that opposition and given the nature of the issues raised in your outline of submissions, I do not consider that you have made out a proper basis for an adjournment in the absence of some better explanation of the relevance of the material that you wish to put before the Court. Is there anything further you wish to put to me? For the reasons I have just explained, Mr Huynh, I do not propose to further adjourn the hearing of your application for an extension of time in which to bring these proceedings.

The plaintiff then said he wished to contact someone at Villawood to get advice. That person was the person who had assisted him to prepare his submissions. Bell J said:

Mr Huynh, the submissions, as I have said, are detailed and appear to have been prepared with the assistance of someone with some understanding of the legal issues involved in a challenge such as this. Crennan J directed you to file the submissions by Friday, 10 February. In fact, you were able to file them on 9 February. Have you some explanation for why now you wish time to supplement those submissions or present some other material with the assistance of [the person at Villawood]?

The plaintiff said that the reason he wanted assistance was that he “would like to double check all the material”. Bell J then said:

As I have indicated, Mr Huynh, in light of the Minister’s opposition, the background of the matter, including the orders made by Crennan J on the last occasion and the issues raised by the relief that you claim, I do not intend to adjourn this hearing to afford you a further opportunity to speak with [the person in Villawood]. Have you put the things that you want to say in your outline of submissions?

The Plaintiff then said he would like to double check to make sure nothing was missing. At 112.29 pm, Bell J then adjourned the matter until 2.00 pm so that the plaintiff could read over his submissions and telephone the person at Villawood. After the hearing resumed at 2.02 pm, the plaintiff asked for an adjournment in order to get material from the Tribunal, that is the Administrative Appeals Tribunal, to which he said the Tribunal had not paid regard. The plaintiff said that this was not related to any ground not raised in his amended application. Bell J asked:

Are you able to tell me with some precision what it is that you wish to place before the Court that you do not have with you now and for which you require an adjournment?

That question was not answered.

In the light of the vague, unilluminating and sometimes contradictory things which the plaintiff told Bell J, in view of the opportunities she gave him over the luncheon adjournment and in view of the opportunity which Crennan J had given the plaintiff, no error can be found in Bell J’s decision to refuse the adjournments which the plaintiff sought. For those reasons, the plaintiff’s planned appeal and his application for leave to appeal would have no prospects of success and it would be futile to grant the injunction as a means of preserving that proceeding.

The other basis on which an injunction is sought was not foreshadowed until this morning when the plaintiff told the Court that he was preparing an application to the Refugee Review Tribunal which he was proposing to file in five to seven days time seeking a protection visa on the ground that he feared he would be killed in Vietnam. That expression of fear is not supported by any evidence. Accordingly, it cannot be taken into account as a ground for granting the injunction sought. The application for an injunction is therefore dismissed with costs. The Court will now adjourn.

AT 10.04 AM THE MATTER WAS CONCLUDED