FEDERAL COURT OF AUSTRALIA Haynes v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 844 Judiciary Act 1903 (Cth) s 39B Migration Act 1958 (Cth) ss 477, 501(2) Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24 cited Minister for Immigration & Multicultural Affairs v VFAD (2002) 196 ALR 111 cited Cowgill; Ex parte Minister for Immigration & Multicultural Affairs (unreported, Gummow J, 4 April 2003) cited STEPHAN WILBUR HAYNES v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS W115 of 2003 RD NICHOLSON J 24 JULY 2003 PERTH IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY W115 OF 2003 BETWEEN: STEPHAN WILBUR HAYNES APPLICANT AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT JUDGE: RD NICHOLSON J DATE OF ORDER: 24 JULY 2003 WHERE MADE: PERTH THE COURT ORDERS THAT: 1. The application in terms of paragraph 2 of the claim for interlocutory relief be refused. 2. Costs be reserved. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY W115 OF 2003 BETWEEN: STEPHAN WILBUR HAYNES APPLICANT AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT JUDGE: RD NICHOLSON J DATE: 24 JULY 2003 PLACE: PERTH REASONS FOR JUDGMENT 1 The applicant has brought an application to the Court seeking prerogative and injunctive relief pursuant to s 39B of the Judiciary Act 1903 (Cth). In that application he also seeks interlocutory relief in a mandatory form restraining the respondent from removing him from Australia and from continuing to detain the applicant. No question arises as to the formal aspect and the submissions on this interlocutory application are directed to the latter aspect. 2 The application raises two grounds of law. The first is that the respondent failed to have regard to a relevant consideration; namely, that the applicant was in a stable continuing relationship with an Australian citizen and that her interest would be significantly adversely affected if the applicant was removed from Australia and returned to Trinidad and Tobago. The second is that the respondent failed to accord to the applicant natural justice in that the respondent relied on adverse information provided by an officer of his department that the applicant was not living in a de facto relationship and that she lived with her mother and the applicant with his father, without the applicant being given the opportunity to provide material to refute that adverse information. 3 The affidavits which are relevant to consideration at an interlocutory stage of the applicant's application are an affidavit from him sworn on 30 June 2003 and an affidavit from his alleged de facto partner sworn in June 2003 and filed on 1 July 2003 and an affidavit from her mother sworn on 17 July 2003. The respondent opposes the grant of interlocutory relief. In doing so the respondent's case relies on an affidavit of Ms Ling sworn on 10 July 2003, as well as an affidavit of Mr Stevens, an officer of the Department of Immigration & Multicultural & Indigenous Affairs, sworn on 17 July 2003. 4 The applicant was born on 12 June 1980. He is a citizen of Trinidad and Tobago. He entered Australia on 20 June 1995 on a sub class 676 Tourist (Short Stay) Visa. He was granted permanent residence on 6 June 1996 when a sub class 802 Child Visa was issued. The applicant's father is said to be an Australian citizen. Between 1997 and 2001 the applicant was convicted of a number of criminal offences. On 12 December 2001, Blaxell DCJ of the District Court of Western Australia imposed upon the applicant sentences of 3 years imprisonment for one count of grievous bodily harm, 2 years imprisonment for each of four charges of unlawful wounding to be served concurrently and 3 months imprisonment for each of two charges of breach of a community based order to be served concurrently. These sentences were backdated to commence on 22 July 2001 to allow for time spent in custody and there was an order that the applicant be eligible for parole. 5 On 21 March 2002 the applicant was sent a notice advising of the respondent's intention to consider cancelling his visa under s 501(2) of the Migration Act 1958 (Cth) ('the Act'). The letter advised that the applicant could provide written comments and any other information which the respondent ought to be aware of and take into account by 4 April 2002. The applicant responded to this letter by a submission which was received on 5 April 2002. That response was handwritten. Its terms are not beyond argument. The case for the applicant contends that there is a statement in the response which in part reads, 'I have a wonderful father that lives near,' and another sentence which reads, 'Also my partner at the moment is pregnant and is due to have the baby in July of this year.' The significance of those sentences will subsequently appear in these reasons. I note that the word said to read 'near' is arguably capable of either reading 'here', misspelt, or referring to the place from which the applicant was then writing, namely imprisonment at Canning Vale. 6 On 10 December 2002, Mr Stevens prepared for the respondent a document entitled, 'Issues for Consideration in Connection with the Possible Cancellation of Visa'. He did so after having, in November 2002, spoken to the applicant and the applicant's partner. I will return to the nature of those conversations. On 19 December 2002, the respondent endorsed the issues document on p 12 to the effect that he had decided to exercise his discretion to cancel the applicant's visa. The decision was served on the applicant on 8 January 2003. The applicant was then taken into immigration detention where he has since remained. 7 It was not until 27 May 2003 that the applicant's application for relief in this Court was filed. On the face of it, it was clearly filed outside the ordinary time limits for an application for judicial review of a decision of this type set in s 477 of the Act. It is accepted by the respondent, however, that if the decision of the respondent was affected by jurisdictional error, as the application intends to contend for the applicant, then the time limit set in s 477 of the Act would have no application: see Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24. With this circumstance in mind, the respondent filed a notice of objection to competency on 2 July 2003. The position the applicant faces, therefore, is that if he cannot make out a case for jurisdictional error it is highly likely that unless some other factor appears the notice of objection to competency would be allowed. 8 There is no quarrel between the parties that this Court has jurisdiction to order the interlocutory release of a person in the position of the applicant. see Minister for Immigration & Multicultural Affairs v VFAD (2002) 196 ALR 111. The jurisdiction in that respect is a discretionary jurisdiction. However, that does not mean that the Court simply exercises its own views. What the Court has to do is to consider two factors, and they are well established. The first is whether there is a serious question to be tried in the sense of an arguable issue - in this case, jurisdictional error - and whether the balance of convenience favours the grant of the order. The two are not entirely separate and the strength or weakness of the first can be taken into account in assessing the second. 9 The case for the applicant seeks to approach the issue of jurisdictional error on three grounds. The first is that there was jurisdictional error because the respondent's decision was made without regard to the relevant consideration of the applicant's alleged long-term de facto marriage relationship. The argument on that issue is that the terms of the letter from the applicant in response to the notice of intention to consider cancellation of his visa should be read, and can only be read, in such a way as to have led to the inference that the applicant was in the alleged long-term de facto relationship. I am unable to accept that submission. As I have already pointed out, the letter is capable of giving rise to different inferences depending on how it is read. The issue is arguable, but only at the lowest possible level. I do not regard that argument as strong. 10 The second argument is that the applicant was denied procedural fairness in that par 35 of the issues document on which the decision of the respondent was endorsed contained inaccurate information about the applicant's relationship with his alleged partner which he was not given the opportunity to correct. Paragraph 35 starts off firstly by stating: 'There is no evidence on file that indicates the applicant is in a genuine marriage to or a de facto or independent relationship with an Australia citizen.' It continues by stating that in his submission his total reference to his partner was 'also my partner at the moment is pregnant and is due to have the baby in July of this year'. There does not seem to be any quarrel with the accuracy of that portion of par 35. However, par 35 continues by stating: 'Subsequent discussions with [the applicant] and his partner indicated that the relationship could not be considered to be a de facto relationship. The couple live independent of each other with [the applicant] living with his father and his girlfriend living with her mother.' The reference to those subsequent discussions is to be considered in the light of the affidavit evidence of Mr Stevens. Mr Stevens' evidence is that while he made no file note, he telephoned the applicant because of the applicant's submission that his partner was pregnant 11 The applicant, he says, informed him during the conversation that his girlfriend had had a miscarriage. 'I asked him about his relationship with his girlfriend', said Mr Stevens, 'and he informed me that they were living apart, with him living with his father and his partner with her mother.' At his request, the applicant gave Mr Stevens the telephone number of his partner. 12 Mr Stevens' further evidence is that when he contacted her several days later and questioned her about the nature of her relationship with the applicant, she informed him that she and the applicant were neither in a de facto relationship nor living together. She said she was living at home with her mother but she had known the applicant for four years and had been his girlfriend for three years and there were no children from the relationship. It is also germane to note that in his sentencing remarks delivered on 5 February 2002, that is, within the period of the alleged de facto relationship, Blaxell DCJ stated that the applicant normally lived with his father and stepmother in Hilton. 13 These statements in the evidence of Mr Stevens are sought to be contested by and for the applicant, and there is to that extent room for argument before a court and a judge would have to make a factual finding. On the present evidence the opportunity for argument against that bank of evidence, if I might so describe it, is extremely limited, and I regard therefore the second argument as also in a very weak category and arguable only in the sense that some contest can be raised to the level I have mentioned. 14 I turn to the third aspect of the case proposed to be argued in respect of the applicant. Here it is said that Mr Stevens, as an officer of the respondent, provided the applicant's alleged de facto spouse with an incorrect address with which to provide submissions in support of the applicant being permitted to remain in Australia. As a consequence, it is said, the respondent did not receive her statement and did not act on that relevant information. It is claimed that the provision of the incorrect address was a breach of procedural fairness which denied to the alleged partner the opportunity of confirming in writing that she was in a stable, long‑term de facto relationship with the applicant and that they intended to marry and the opportunity to make other submissions in support of the applicant. This, it is said and will be argued, amounts to jurisdictional error. 15 The evidence of Mr Stevens on that matter is that he cannot independently recall whether he gave the alleged partner the postal address but he accepts it is very likely that he did. He said that it is very likely that he asked her to address the letter to his attention. However, he says he would not have given her the incorrect address as alleged in par 2 of her affidavit. He said this because he had been employed by the Department for about five years and he had had a particular responsibility in maintaining the address when the Department had moved. There is therefore a factual dispute concerning that issue. 16 Further, evidence presently available on this interlocutory application shows an envelope bearing Mr Stevens' address at a box number but without the reference to a locked bag as a returned envelope around the relevant date. All those matters will fall out for consideration and I accept that they are to be taken as more arguable than the first two aspects which I have addressed. Nevertheless I do not consider there is a strong case for the applicant on that element. 17 It is necessary then to determine the balance of convenience. I accept the submission that the applicant has an important human right not to be detained or imprisoned. Next it is said that there is a lack of any real risk that he would or could abscond in the circumstances, given that there have been no previous breaches of bail conditions by him and no offences while he was on bail and that he has a good work history between his release from prison and his subsequent detention. Therefore, it could be expected that he would comply with his parole conditions. Reference is also made to the costs to the taxpayer of imprisonment but those matters, I think, follow as a matter of course rather than in the weighing of the balance. There have also been an undertaking given by the applicant and a bond offered by the applicant's father. 18 As against that, the case for the respondent submits that the balance of convenience does not favour the applicant's release from detention. Reference is made to the nature of the applicant's criminal record, to which I have referred. For the applicant it is said that this should be taken at the less serious end of the offences in question. Nevertheless, as Blaxell DCJ found, they are all very serious offences, particularly grievous bodily harm. The respondent's case relies on what was said in Cowgill; Ex parte Minister for Immigration & Multicultural Affairs (unreported, Gummow J, 4 April 2003), that the past criminality of an applicant is relevant to the balance of convenience, and it is submitted that the criminal history of this applicant reflects a propensity not to comply with court orders. Reference is made to the fact that in the sentencing remarks Blaxell DCJ said that the actions of the applicant giving rise to the convictions had occurred without any great degree of provocation and that was not the way in which the applicant had, in materials before this Court on this interlocutory application, given his own account of what had occurred on that occasion. There is also an unexplained delay in making the substantive application to the Court. That was a matter of relevance to Gummow J in Cowgill. 19 I must also take into account in the balance of convenience the degree of strength in relation to the issues which will be argued. As I have said, the balance of convenience and the strength of the issues are interrelated. With strength, or lack thereof, in mind, in the applicant's case I do not consider that the balance does favour the granting of the orders. The matter is not clear‑cut; these things never are, but all a Court can do is to consider the evidence before it, and looking at that evidence, I do not think the case is a particularly strong one and I have indicated the reasons for that, and taking into account in the balance of convenience all the factors to which I have referred, I do not think that this case reaches the level where the combination of the two factors is such that the orders for release are dictated by the circumstances. I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice RD Nicholson. Associate: Dated: 12 August 2003 Counsel for the Applicant: Mr S Strbac Solicitor for the Applicant: Christie & Strbac Counsel for the Respondent: Mr MT Ritter Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 24 July 2003 Date of Judgment: 24 July 2003