A, Ex parte- Re Pelekanakis

[1998] HCATrans 202

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M33 of 1998

In the matter of -

An application for writs of
  Prohibition, Mandamus and
  Certiorari against
  BOB PELEKANAKIS

First Respondent

THE HONOURABLE
  PHILIP RUDDOCK MP

Second Respondent

Ex parte -

“A”  

Prosecutor/Applicant

HAYNE J   (in Chambers)

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON TUESDAY, 2 JUNE 1998, AT 11.37 AM

Copyright in the High Court of Australia

______________________

MR T.V. HURLEY:   If it please your Honour, I appear on behalf of the Prosecutor/Applicant in this matter.  (instructed by Erskine Rodan)

MR R.R.S. TRACEY QC:   If your Honour pleases, I appear on behalf of the second‑named Respondent, the Minister.  (instructed by the Australian Government Solicitor)

HIS HONOUR:   Yes.  Mr Hurley, as I understand it, you contend that this is not a proceeding which is within Part 8 of the Act.  Is that right?

MR HURLEY:   Yes, your Honour.  We contend it is not a proceeding that would, if remitted, be subject to the limitations imposed under section 485(3).

HIS HONOUR:   That being so, why should I not remit it?

MR HURLEY:   We seek that your Honour do that, your Honour.

HIS HONOUR:   Remit it, yes.  Mr Tracey, why should I not remit this matter?

MR TRACEY:   Your Honour, the only basis on which we would be able to urge that it not be remitted, your Honour, was that it is such a weak case that it would be preferable to bring it up short at this stage.  But ‑ ‑ ‑

HIS HONOUR:   Why should I conclude that when this fellow puts in an application which says there is more to come and nothing else is heard and then bang, there is an answer?

MR TRACEY:   Because the Act contemplates just that and sanctions it and permits it, your Honour.

HIS HONOUR:   Why should those matters not be debated before a judge in the Federal Court rather than here?

MR TRACEY:   Your Honour, I am quite sure that they could be equally well ventilated in the Federal Court.

HIS HONOUR:   Is there any other reason you would urge upon me about remitter, Mr Tracey?

MR TRACEY:   No, your Honour.

HIS HONOUR:   Do you wish to amplify the hopeless point or is it enough?

MR TRACEY:   Well, if your Honour would indulge me for two minutes, I would seek to persuade your Honour that it is quite hopeless.

HIS HONOUR:   Yes.  Why should this man not have had a proper hearing when he first puts in his application, a hearing on the papers?

MR TRACEY:   Because, your Honour, he did not comply with the requirements of the regulations in the Act and state the basis upon which that application was made.

HIS HONOUR:   And therefore what he put in was not an application?

MR TRACEY:   Yes, your Honour.  It goes that high, but even at the next level down, it did not comply with the requirements.

HIS HONOUR:   I must say my utterly uninformed and purely intuitive - and therefore almost certainly wrong - reaction to it is that it really is a bit rich.  If he puts something in saying, "Look, I am going to give you more material," and his solicitor writes to them saying, "Tell me who is dealing with it so I can put in more material ‑ ‑ ‑"

MR TRACEY:   Did not need to know the name to make the application, your Honour, did not need to know the name to put in new material.

HIS HONOUR:   As I say, intuitive, uninformed, idle speculation, Mr Tracey, in which no judge should engage, I suspect.

MR TRACEY:   If your Honour would indulge me very briefly, the issue arises in this way:  the regulations, insofar as they deal with this particular class of visa which is the protection visa, specifically say - and there are criteria to be satisfied at the time of application and that is regulation 866.21:

The Applicant claims to be a person to whom Australia has protection obligations under the Refugee Convention and, (a) makes specific claims under the Refugee Convention. 

So that is something that has to happen at the time of the application.  One then goes to the form ‑ ‑ ‑

HIS HONOUR:   Yes, just a moment.

MR TRACEY:   I am sorry, your Honour.

HIS HONOUR:   Can I just look at what, if anything, he claimed in the ‑ ‑ ‑

MR TRACEY:   I was just going to that, your Honour, because there are some things on that form that I draw your Honour's attention to.

HIS HONOUR:   Yes.

MR TRACEY:   Your Honour will find it in exhibit KB1 to Ms Boyd's affidavit and that is the standard form.  If your Honour will just go through it - it is not paginated unfortunately - but your Honour will find about halfway through that bundle a document with a large capital C on it.

HIS HONOUR:   Yes, I have that.

MR TRACEY:   Yes.  Your Honour, that is the application for a protection visa and your Honour will see the instructions, "You must answer all questions," so that the Applicant is told that all questions must be answered.  You then go over about seven pages and you come to a heading, Your Reasons For Claiming To Be a Refugee.

HIS HONOUR:   Yes.

MR TRACEY:   Your Honour will see about four lines down:

You should answer all the following questions in your own words.  You should tell us below everything about -

etcetera.  A bit lower down:

You should, wherever possible, provide dates, locations -

etcetera.

You should provide any evidence which supports your claims.

Then is the statement that I think your Honour was searching for ‑ ‑ ‑

HIS HONOUR:   Yes.  Now, if he had put all his reasons on a separate bit of paper, not on the form, and handed them over, the form first and the bit of paper second ‑ ‑ ‑

MR TRACEY:   Yes, your Honour, so long as the paper is with the form.  The Act deals with that, no problem.

HIS HONOUR:   If he dropped the bit of paper on his way into the office and went back and got it and brought it back in five minutes' time or next day's time or the next week's time?

MR TRACEY:   Your Honour, it would obviously be a matter that turned on its own facts.  But whatever it is, it is not this case.

HIS HONOUR:   No, this case is where the man says, "More is coming."

MR TRACEY:   Yes, and that is exactly what the legislation says you cannot do.

HIS HONOUR:   Where do I find that?

MR TRACEY:   You can supplement what you put in but you have got to at least make an effort to say why you are a refugee when you make your application.  Your Honour, that form is a prescribed form and it is prescribed in a schedule to the Act.  I will not take your Honour to it but it is item 1226(1) so that it is not just something that has been drawn up by some bureaucrat who wants to be particularly difficult.  It is a prescribed form, including those instructions.  Then there is a regulation, regulation 2.07(3) that says that there must be compliance with directions appearing on forms.  So the statutory structure is strict and for good reason, your Honour.  This whole process of decision‑making can be unreasonably delayed by people doing just what was done in this case and saying, "Look, there is lots to come," and just staying in Australia while some decision‑maker has to sit around and wait.

HIS HONOUR:   The decision‑maker can bring it to a head by saying, "Unless within - I will decide."

MR TRACEY:   Could do that, but the Act relieves him of that need, your Honour.  Section 54 says:

The Minister, in deciding whether to grant or refuse a visa, shall have regard to all the information in the application.

Then there is the part that came to mind when your Honour was talking about the additional statement attached:

For the purposes of subsection (1), information is in an application; if the information is set out in the application or in a document attached to the application or given under section 55 -

one then goes over to 55 - perhaps before departing with 54, 54(3) says:

Without limiting subsection (1), a decision to grant or refuse to grant a visa may be made without giving the Applicant an opportunity to make oral or written submissions.

So the legislation contemplates that everything is going to be in that application.
Then 55:

Until the Minister has made a decision whether to grant or to refuse to grant a visa, the Applicant may give the Minister any additional relevant information, that the Minister must have regard to that information in making the decision -

so that meets your Honour's point and explains my - it depends on the facts for a joinder because if there is additional material that has avoided the Applicant's notice and it is subsequently discovered prior to the decision being made, it can be put in.  But then (2), your Honour:

Subsection (1) does not mean that the Minister is required to delay making a decision because the Applicant might give or has told the Minister that the Applicant intends to give further information.

So there is no need to wait, there is no need to say, "Well, I will give you another week and then I am going to make my decision."  This legislation contemplates exactly what happened here, your Honour.  It having happened, there was a right to go to the Tribunal.  Your Honour has seen the history of that; it did not get there.  It could have gone to the Federal Court, did not get there, and because the time limit under 478 had been hit, we are here. 

HIS HONOUR:   It is a perfect demonstration of Murphy's Law, that once things start to go off the rails, a case stays off the rails.

MR TRACEY:   Indeed it does.

HIS HONOUR:   Those are matters I think you can debate in the Federal Court, Mr Tracey.

MR TRACEY:   If your Honour pleases.

HIS HONOUR:   You may be right, you may be wrong.  I express no view on them.  As I say, intuitive and uninformed speculations are things in which judges should not indulge themselves.

MR TRACEY:   If your Honour pleases.

HIS HONOUR:   There will be an order for remitter in the common form.  Costs of today should be what, in the cause, reserved?

MR HURLEY:   That is what we seek in the order, your Honour, in paragraph - the proposed order - I misheard your Honour.  Your Honour's first order was that there be an order in the form of this, the proposed order nisi?

HIS HONOUR:   Have you got ‑ ‑ ‑

MR HURLEY:   Exhibit 2 to the affidavit of the Prosecutor/Applicant, MCUA2, your Honour.

HIS HONOUR:   No, that is an order nisi.  I am not proposing to make an order nisi.  I am simply remitting the application generally.

MR HURLEY:   For the order nisi?

HIS HONOUR:   Yes.

MR HURLEY:   I would seek an order ‑ ‑ ‑

HIS HONOUR:   I am not minded to do anything, except remit the whole proceeding.

MR HURLEY:   Your Honour, within that proposed order in paragraph 5, we had a proposed order that the application for the order nisi proceed in that court as if steps taken in the matter in this court are being taken in that court which, as I understand, the norm.  The one in paragraph 7, we would submit that the costs for this application for order nisi be costs of the Applicant in the Federal Court and certify for counsel.

HIS HONOUR:   If I simply say that there will be a remitter order in common form, the costs to date shall be costs in the proceeding and if I certify for counsel, does that accommodate the position?

MR HURLEY:   If it please your Honour.

HIS HONOUR:   Yes, thank you, gentlemen.  I will adjourn.

MATTER ADJOURNED AT 11.39 AM