FEDERAL COURT OF AUSTRALIA

Challoner v Minister for Immigration & Multicultural Affairs (No 2)

[2000] FCA 1601

BARRY WILLIAM CHALLONER v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Q 138 OF 2000

DRUMMOND J

6 NOVEMBER 2000

BRISBANE

THE COURT ORDERS BY CONSENT THAT:

1.                  The Minister, by his officers, servants and agents, be restrained until the final determination of the application or further earlier order from giving effect to the decision cancelling the applicant’s electronic travel authority (“ETA”) visa to the extent that the decision would otherwise have permitted the Minister to remove the applicant from Australia, and to the extent that the decision would otherwise have required the applicant to be kept in immigration detention.

THE COURT FURTHER ORDERS THAT:

2.                  The hearing date set for 2.15 pm on Tuesday, 7 November 2000 be vacated.

3.                  The matter be adjourned to the Deputy District Registrar to fix a new hearing date.

4.                  The parties confer with the Deputy District Registrar tomorrow, Tuesday, 7 November 2000, with a view to obtaining that date.

5.                  A copy of these reasons be forwarded by the Deputy District Registrar to the Secretary to the Minister of Immigration and Multicultural Affairs.

6.                  The parties have liberty to apply.

7.                  The respondent pay the applicant’s costs of the hearing this morning and this evening.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     I have before me an application by the Minister to adjourn the trial of an application for an order to review a decision of the Minister’s delegate, cancelling the applicant’s Electronic Travel Authority (“ETA”), a sub-class 956 visa.  That cancellation occurred, as I understand things, last week.  The matter initially came before me as an urgent application on Friday afternoon last by the applicant to obtain a stay of the cancellation decision to prevent his removal from Australia.  He was to be placed on a plane due to leave at 3.30 pm on Friday.  The matter came before me about a half hour or so before that.

2                     I initially made an order on Friday last, in reliance on Halmi v Minister for Immigration and Multicultural Affairs [1999] FCA 1438 at [33] to [37], restraining the Minister from giving effect to the cancellation of Mr Challoner’s ETA until further order.  That was done in circumstances where, on the material outlined to me orally by counsel for the applicant, I formed the view that Mr Challoner had an arguable case for review of the cancellation decision under s 476(1)(c) the Migration Act 1958 (Cth).  I accordingly adjourned the matter to 10.15 this morning so that the Minister could be notified and a directions hearing held to deal with the further prosecution of the application. 

3                     On Friday evening last, the parties agreed on a consent variation to the order I had earlier made so that it operated as a restraint upon giving effect to the cancellation decision only to the extent that the cancellation decision would have permitted the Minister to remove the applicant from Australia.  Since some time last week, the applicant has been in detention, pursuant to the Migration Act, following cancellation of his ETA, and the variation to the order I initially made on Friday afternoon, agreed between the parties later on Friday, was to ensure that Mr Challoner would remain in detention, though he would not, for the time being, anyway, be able to be removed from Australia.

4                     When the matter came before me at 10.15 this morning, I indicated that, in view of the fact that Mr Challoner was in detention, in circumstances where I had formed a necessarily provisional opinion that he had an arguable case to review the cancellation decision, I would be prepared to hear the matter as an urgent matter.  I suggested Monday of next week, ie, 13 November 2000.  The solicitor for the Commonwealth’s response to that suggestion was to ask for an even earlier hearing. 

5                     Due to a case I have been hearing today finishing early, I was able to offer the parties 2.15 tomorrow afternoon.  The Commonwealth agreed to that as the time for the final hearing of the application.  The applicant agreed to that also.  Directions were given for the final hearing of the matter at 2.15 tomorrow.  There things rested until late this afternoon.  Shortly before 5.00 pm, I was asked to convene the Court to deal with an application by the Commonwealth for the adjournment of tomorrow’s hearing.

6                     Although at this morning’s directions hearing the Commonwealth had pressed for a hearing before Monday, 13 November and had tomorrow afternoon set aside for that purpose, and although the Commonwealth put no material before me relevant to whether Mr Challoner in fact had an arguable case for review of the visa cancellation decision, the Commonwealth sought the adjournment to Monday, 13 November for what emerged in the course of this evening’s debate to be a number of reasons. 

7                     It was first said that the Commonwealth’s preferred counsel was not available for tomorrow afternoon, but would be available on Monday, and that the Commonwealth would wish the hearing to proceed on Monday.  I was then told that the Commonwealth was also taking action to procure files relevant to Mr Challoner’s application held in Dublin and in New Zealand.  I was then given additional information by the solicitor for the Commonwealth to the effect that there were a number of other cases similar to Mr Challoner’s, so that the outcome of this case was likely to be seen by the Commonwealth as having application to a number of other matters.

8                     The Commonwealth was not prepared to consent to the release of Mr Challoner from detention, though it was it which had pressed for the extremely early hearing tomorrow afternoon and though it has not attempted to put material before the Court to suggest there is no substance to Mr Challoner’s application.

9                     It has now emerged that the Commonwealth does not anticipate that it will be in possession of the files from Dublin and New Zealand for about a week, ie, until Monday, 13 November next. 

10                  It is apparent, not only from that fact which I have last mentioned, but from the general outline of the steps the Commonwealth has in mind taking, that this case was never going to be ready to be heard, even on Monday, 13 November - the date first offered by the Court but initially unacceptable to the Commonwealth as too-delayed a date.  It seems to me clear that the Commonwealth is not even going to be able to marshal and investigate the material it wants to look at and to prepare evidence that it may wish to put on in answer to the application by then.  And if the Commonwealth is to run this case not just to suit its own litigating convenience, but in a manner which recognises that Mr Challoner is entitled to a proper opportunity to evaluate any material the Commonwealth may rely on and to answer it, this case is not going to be ready for hearing for some weeks, probably three or four weeks at the earliest.

11                  It was after a further adjournment of the hearing sought by the Commonwealth’s solicitor when it appeared that its instructions were to consent to Mr Challoner’s release, but only on condition that the Court heard the matter on Monday next, that the solicitor returned and provided information which I have referred to about the delayed availability of the overseas files which makes it clear that there was never any chance that this case could ever be ready for hearing on Monday of next week.  He then relayed to the Court new instructions to the effect that the Commonwealth was prepared to consent to Mr Challoner’s release without seeking to extract any condition from the Court as to an early hearing of the matter.

12                  It seems to me immensely regrettable that the Commonwealth has conducted this litigation in the way I have outlined, against the background of Mr Challoner’s continued detention, upon which it has insisted until this late stage.  It would be immensely regrettable for any litigant to urge, over the Court’s offer of a very expedited hearing, an even quicker hearing and then to put off the hearing in circumstances which include reasons of the kind that have been advanced on behalf of the Commonwealth.  The extent to which that becomes regrettable is enhanced because it is the Commonwealth which has left itself open to this criticism.  In the ALRC Report No: 89 on “Managing Justice - A Review of the Federal Civil Justice System”, the authors refer at pars 3.130 and following to the Commonwealth’s role as a model litigant.  The authors state:

“3.130 Recent legal services directions issued by the Attorney-General stated that:

In essence, being a model litigant requires the Commonwealth and its agencies, as parties to litigation, act with complete propriety, fairly and in accordance with the highest professional standards.

3.131      The principle of the government operating as a model litigant is widely recognised and well established.  The courts have a settled expectation that the federal government and its agencies will act in accordance with the principle. 

3.132      The directions require the Commonwealth and its agencies to act honestly and fairly in handling claims and litigation.  …”

13                  The legal services directions referred to were given by the Attorney-General under s 55ZF the Judiciary Act 1903 (Cth) and they have effect from 1 September 1999.  They bind not only the Minister, but also the private solicitors now acting for him:  see s 55ZG(1)(f).

14                  There appears to me in the circumstances of this case to have been a completely regrettable departure by the Commonwealth from compliance with those obligations, reflected in the Attorney-General’s directions.

15                  The position ultimately adopted by the Commonwealth with respect to the final hearing and Mr Challoner’s liberty in the meantime seems to me to be a proper position for it to adopt.  As I have said, there is no prospect of the case coming to trial in the next week or so.  Realistically it will be three or four weeks before the matter is ready for trial.

16                  I will vacate the order I made this morning setting the matter down for hearing at 2.15 tomorrow afternoon.  I will adjourn the matter to the District Registrar and I will direct the parties confer tomorrow with the District Registrar with a view to obtaining a hearing date.  I will direct that a copy of these reasons be forwarded by the District Registrar to the Secretary of the Department of Immigration and Multicultural Affairs.

17                  The order I will make by consent in addition to the directions I have already given is:

(1)        that the Minister, by his officers, servants and agents, be restrained until the final hearing of the application or earlier order from giving effect to the decision cancelling the applicant’s electronic travel authority (“ETA”) visa to the extent that the decision would otherwise have permitted the Minister to remove the applicant from Australia and to the extent that the decision would have required the applicant to be held in detention.

18                  And there will be general liberty to the parties to apply.

Associate:

Dated:              8 November 2000