O'Donoghue v Minister for Immigration and Citizenship

BACKGROUND 5 In order to evaluate the merits of the grounds on which adjournment of the appeal is sought, it is necessary to consider the nature of this appeal in the context of other proceedings that have preceded this appeal. 6 Mr O'Donoghue is an Irish citizen. He arrived in Australia in July 2002 holding an ETA (Business Entrant) (Subclass 956) visa. In November of that year, he was granted a Business (Long Stay) (Subclass 457) visa (subclass 457 visa). A year later, Mr O'Donoghue applied for an Employer Nomination (Residence) (Class BW) (Subclass 856) visa (subclass 856 visa). That application was made on the basis that he would be employed as a legal consultant by a legal firm in Queensland. The legal firm (Hope Lawyers) lodged an application for approval of a nominated position pursuant to the relevant Migration Regulations. The application made by Hope Lawyers was approved by a delegate of the Minister on 16 December 2003. From this approval, it followed that Mr O'Donoghue was granted a Bridging A visa permitting him to remain in Australia until 28 days after notification of the decision in respect of an application for merits review of any refusal to grant Mr O'Donoghue a subclass 856 visa. The Bridging A visa contained a work limitation condition. 7 In late 2003, early 2004, the then Department of Immigration and Multicultural and Indigenous Affairs (the Department) received from Mr O'Donoghue's migration agent copies and originals of letters from the Police Service of Northern Ireland. The letter advised that as at 12 March 2002 that the Director of Public Prosecutions had directed a 'No Prosecution' in relation to an offence of deception with which Mr O'Donoghue had been charged on 11 July 2001. As at 21 June 2002, it was advised that Mr O'Donoghue was not currently under investigation. The migration agent also referred to recent discussions in which the Department had referred to further charges that post-dated those that were referred to in the correspondence from the Police Service of Northern Ireland. 8 The migration agent advised that Mr O'Donoghue had confirmed that he had no knowledge of any charge or any circumstance in which charges may have been raised. 9 In 2004, Mr O'Donoghue moved with his family to Perth. At the end of 2004 he was arrested in Perth on provisional warrants issued pursuant to the Extradition Act 1988 (Cth) (the Extradition Act) in relation to offences alleged to have been committed in the Republic of Ireland in respect of which Irish warrants were issued on 24 March 2004. 10 Mr O'Donoghue strongly contested his extradition in a series of proceedings in various courts including the High Court of Australia. His final application for special leave to appeal to that Court was refused in June 2010. 11 In the meantime, while the extradition proceedings ensued, Mr O'Donoghue's migration agent made a request in August 2006 that the conditions on his Bridging A visa be changed so that he would be permitted to work. An officer within the Department considered the application and granted him a new Bridging A visa without a work limitation. On 11 January 2008, Mr O'Donoghue was informed that his application was 'on hold' while he had matters in court dealing with the extradition. He was also told that there were other matters which needed to be finalised before his application could be completed. They included 'confirmation that the position that was approved for the nominating company (legal consultant) remained available'. 12 The need for this information was repeated in a further letter of 22 April 2009. He was reminded that written confirmation from the nominator, Hope Lawyers, was required in order to confirm that the nominated position remained available. A further reminder was sent on 6 May 2009 with a request for a response. No confirmation that the position was available was forthcoming. 13 In August 2009, following completion of the extradition challenges, a decision was made refusing to grant Mr O'Donoghue a subclass 856 visa due to the absence of written confirmation that the employment position remained available from the nominating company. 14 In the following month, Mr O'Donoghue applied to the Migration Review Tribunal (the MRT) for review of the Department's decision. On 15 December 2009, the MRT affirmed the Department's decision to refuse Mr O'Donoghue a subclass 856 visa, due to the same absence of confirmation from Hope Lawyers. 15 In January 2010, Mr O'Donoghue commenced proceedings in the Federal Magistrates Court for review of the decision of the MRT. In March, Mr O'Donoghue sought an adjournment of his application together with other orders including an order for discovery. That application was dismissed without prejudice to Mr O'Donoghue's entitlement to file a further amended application. 16 After an adjournment, Mr O'Donoghue filed an amended application asserting that the MRT was estopped from considering his visa application by reason of undertakings given by the Minister that he would not deal with the application pending the final outcome of the extradition proceedings. 17 A further adjournment was sought and refused. The principal application was heard on 5 July 2010 and dismissed on 27 July 2010. 18 Mr O'Donoghue then lodged a notice of appeal in this Court appealing from the whole of the judgment of the Federal Magistrate. The sole ground of appeal was again that the learned Federal Magistrate erred in law in holding that the Minister was not estopped from determining Mr O'Donoghue's application for a visa adversely before the final determination in the extradition proceedings. 19 The appeal from the Federal Magistrates decision is the primary proceeding before the Court but it is necessary now to first consider the application by Mr O'Donoghue for an adjournment.

Further evidence 20 By a notice of motion dated 10 November 2010, Mr O'Donoghue sought an adjournment of his appeal hearing accompanied by an application for leave to issue subpoenas to Mr Stephen Maclean, Mr Halim Rane, Senator Chris Evans and the Hon Kevin Rudd MP. The relevance of these subpoenas was said to be that all those persons were involved in some way in the circumstances giving rise to the estoppel which this appeal is based. 21 An affidavit in support of the motion asserts that Mr O'Donoghue relied upon assurances and undertakings given to him by the Minister, that he had suffered detriment as a consequence of that reliance and that the Minister is estopped from denying his permanent residency visa. 22 Mr O'Donoghue asserts that the Minister acquiesced in Mr O'Donoghue's inability to work for Hope Lawyers, that he altered his work conditions and waived the requirements to work for Hope Lawyers, that Mr O'Donoghue could have sought a replacement sponsor and that in order to establish the bona fides of the Minister it is necessary to adduce evidence from Mr Maclean, Mr Rane, Senator Evans and the Hon K Rudd MP, the Prime Minister of Australia at the relevant time. 23 Although the topic was addressed in general terms in oral submissions and in written submissions in reply, Mr O'Donoghue's affidavit and submissions say little as to the nature of the evidence he seeks to adduce from those persons and why an adjournment of the appeal hearing is necessary to adduce evidence from those persons. 24 Section 27 of the Federal Court of Australia Act 1976 (Cth) (the Federal Court Act) provides that a Court shall have regard to the evidence given in the proceedings out of which the appeal arose. The Court has power to draw inferences of fact and also has a discretion to receive further evidence. The evidence may be taken on affidavit, by oral examination before the Court or a judge or otherwise in accordance with s 46 of the Federal Court Act. 25 In Guss v Johnstone [2000] FCA 1455 Sackville J, with whom Drummond and Dowsett JJ agreed, stressed that it was ordinarily necessary for a party seeking to adduce further evidence to demonstrate that the evidence relied upon was cogent, that is, that the Court exercising appellate jurisdiction needs to be satisfied that the proffered evidence would be likely to have produced a different result had it been available at trial. (See also the majority judgment in CDJ v VAJ (1998) 197 CLR 172). 26 In NASB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 24, which was cited with approval by Nicholson J in WAMB v Minister for Immigration and Multicultural and Indigenous Affairs [2007] FCA 66, Beaumont, Lindgren and Tamberlin JJ said (at [42]): [42] In order for an appellate court to receive further evidence, two conditions must be satisfied: first, the party seeking to adduce the evidence must show that it could not, with reasonable diligence, have been adduced at the trial; and, secondly, the evidence must be such that very probably the result would have been different: see, for example, Orr v Holmes (1948) 76 CLR 632 at 635-636 per Latham CJ. The second condition has been variously expressed in the cases, but the point made in all of them is that it is not enough that the new evidence was relevant and otherwise admissible, and may have affected the result. Language referring to, at the lowest, 'probability', and at the highest, 'certainty', of a different result, has been used: cf R v Copestake; Ex parte Wilkinson [1927] 1 KB 468 at 477 ('of such importance as very probably to influence the decision' and 'of such weight as, if believed, would probably have an important influence on the result'); Orr v Holmes at 636 ('high degree of probability that the admission of the new evidence would result in a different verdict'); Florance v Andrew (1985) 58 ALR 377 at 381 ('such a different complexion on the case that a reversal of the former result ought certainly to ensue'); Arnotts Ltd v Trade Practices Commission (1990) 24 FCR 313 at 367-368 ((as agreed by the parties) 'almost certain that …, an opposite result would have been reached by the primary judge'). 27 There is no indication in the materials relied upon by Mr O'Donoghue or in argument to make clear what evidence the individuals named in the subpoenas would give which could possibly assist his case. To the contrary, the impression given is that it is a fishing exercise. 28 Without any demonstrated factual foundation, Mr O'Donoghue in reply says that the Minister has failed to explain why his visa was cancelled after a period of six years and has demonstrated mala fides in cancelling the visa when he did. He contends that in cancelling his visa the Minister 'colluded, collaborated and conspired' with other Government departments and Government ministers and agents to frustrate the rule of law, natural justice and his right to the proper protection of his fundamental human rights and those of his children. He argues that this conduct breaches the criminal code and that the persons he wishes to subpoena are complicit in a criminal conspiracy. 29 Mr O'Donoghue says that his visa was cancelled a very short time after he commenced correspondence with the then Prime Minister of Australia, the Hon K Rudd MP, in regards to his case. He makes similar allegations against the corrupt practices of the police force in Ireland. 30 In my view, there is no support for those sweeping generalisations. 31 Further, the application falls short procedurally of the requirements of O 52 r 36 of the Federal Court Rules but it is sufficient to say that on the substantive grounds going to the nature of the evidence sought to be adduced, that leave should not be granted.

Adjournment to state a case to the High Court 32 At the hearing Mr O'Donoghue advanced two further reasons as to why the hearing should be adjourned. The first was a submission that the Court should raise a constitutional issue with the High Court. 33 Mr O'Donoghue requested that the Court state a case for the High Court on the need for the inclusion of a bill of rights in the Constitution or an amendment to the Constitution to include a bill of fundamental human rights. 34 There is no proper basis for any case to be stated to the High Court arising out of the current appeal, nor is there any jurisdiction or power to do so. My limited role in relation to Mr O'Donoghue's notice of appeal is to determine the appeal on the ground which is advanced on the evidence and the materials before me. 35 The premise for this ground of adjournment is entirely misplaced.

Adjournment by reason of the FOI Act proceedings 36 Mr O'Donoghue also made reference to proceedings he had instituted in the Administrative Appeals Tribunal in relation to the request to the Department of Immigration and Citizenship and the Attorney-General's Department for access to documents under the Freedom of Information Act 1982 (Cth) (the FOI Act). 37 Mr O'Donoghue advised the Court that those proceedings had been adjourned to 4 February 2010 and that his FOI Act application 'has a huge relevance to these proceedings'. 38 It is necessary to bear in mind that the sole ground of appeal is that the learned Federal Magistrate should have concluded that the Minister was estopped from determining the visa application adversely prior to determination of the extradition proceedings. 39 The following un-contradicted account has been given for the Minister on the history of the FOI Act applications: 17. On 11 December 2009 [Mr O'Donoghue] made a request to the Migration Review Tribunal pursuant to the FOI Act for access to all documents in relation to "this matter". On 16 December 2009 the Tribunal forwarded [Mr O'Donoghue's] request for documents related to the files of the Department of Immigration and Citizenship held by the Tribunal to the Department pursuant to s 16(1)(a) of the FOI Act for assessment by the Department, together with the Department's files. 18. By letter dated 17 December 2009 the Tribunal advised [Mr O'Donoghue] of its decision to release in full the documents in its possession relevant to his request. 19. On 27 January 2010 [Mr O'Donoghue] sought internal review of the Tribunal's decision, and by letter dated 16 February 2010 the Tribunal advised [Mr O'Donoghue] that all documents on the Tribunal's file had previously been released. 20. By letter dated 5 March 2010 the Department advised [Mr O'Donoghue] that it had decided to partially release the documents in its possession relevant to his request. Of the folios which were not released from the Department's file CLF 2005/4528, folios 27-87 were included in the Court Book prepared for the proceedings in the Federal Magistrates Court below, and are reproduced at pages 30-91 of the Appeal Papers. 21. On 11 March 2010 [Mr O'Donoghue] made an application to the Administrative Appeals Tribunal for review of the Tribunal's FOI Act internal review decision of 16 February 2010, and an application for review of the Department's FOI Act decision of 5 March 2010. 22. On 17 March 2010 [Mr O'Donoghue] sought internal review of the Department's FOI Act decision of 5 March 2010, and on 16 April 2010 the Department made a decision releasing all documents not previously released except for folios 27-87 from file CLF 2005/4528, and part of folio 217 from that file recording a mobile telephone number. 23. On 3 June 2010 the Administrative Appeals Tribunal conducted a preliminary conference in relation to [Mr O'Donoghue's] FOI Act application. [Mr O'Donoghue] sought an adjournment of the proceedings pending his application in the Federal Magistrates Court, and a further conference was listed for 19 July 2010. 24. [Mr O'Donoghue] has since filed a fresh application in the Administrative Appeals Tribunal seeking to review the Department's internal review decision of 16 April 2010. At a further conference held on 4 November 2010 the Tribunal made directions in [Mr O'Donoghue's] FOI Act proceedings in relation to the Department's 16 April 2010 decision that: 1. The [appellant] file a statement of facts and contentions on or before 10 January 2010. 2. The [first respondent] file a statement of facts and contentions on or before 14 February 2010. 40 It is by no means clear, at least in the present application, what additional information Mr O'Donoghue could hope to obtain under FOI legislation. The MRT appears to have given him all of the documents on its file. Of the documents on the Department's files which were not initially released to him, all other documents have been supplied with the exception of the redaction of a mobile telephone number which can have no possible bearing on the ground of his appeal. 41 The sole ground of appeal is based on an estoppel. Mr O'Donoghue says he relied on an assurance. To make good that point he must be able to identify what it was that he relied upon. A generic search under freedom of information cannot reveal a document that he relied upon. Any such document must already be known to him to found the alleged reliance.

CONCLUSION 42 No ground for adjournment of this appeal has been made out. It must proceed and will be relisted forthwith. I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice McKerracher.