Abebe, Ex parte- Re Min for Immig

[1998] HCATrans 8

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney  No S139 of 1997

B e t w e e n -

In the matter of -

An application for Writs of Certiorari, Prohibition, Mandamus and Habeas Corpus and injunctions against THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Respondent

LUKE HARDY (constituting the Refugee Review Tribunal)

Second Respondent

Ex parte -

SENIET ABEBE

Prosecutor

GUMMOW J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON WEDNESDAY, 28 JANUARY 1998, AT 9.38 AM

(Continued from 24/12/97)

Copyright in the High Court of Australia

MR G.T JOHNSON:   May it please, your Honour, I appear for the first respondent, the Minister for Immigration and Multicultural Affairs.  (instructed by the Australian Government Solicitor)

HIS HONOUR:   The second respondent has been excused, I think, on the last occasion.

MR JOHNSON:   Yes, after submitting.

HIS HONOUR:   That is right, yes.

MR J.M. GERSTEN:   I appear for the prosecutor, your Honour.  (instructed by Alex Lee)

HIS HONOUR:   Now, gentlemen, on 24 December, a Judge of the Court ordered that until 4 pm today or further or other order, the first respondent, Mr Johnson’s client:

his servants and agents be restrained from removing the prosecutor from Australia -

and at page 35 of the transcript his Honour indicated that what would be heard today would be an application for a continuation of the injunction or for its dissolution so that the Minister can proceed to remove the prosecutor.  Now, I understand you move to continue the injunction, do you?

MR GERSTEN:   Yes, your Honour, that is correct.

HIS HONOUR:   Is that opposed?

MR JOHNSON:   That is opposed, your Honour, yes.

HIS HONOUR:   Gentlemen, I have read the following evidence in chambers before coming on to the Bench and I should indicate that so that any objections could be taken.  There are three affidavits of Mr Lee:  the first sworn on 22 December 1997; the second and the third both sworn on 23 December.  There is also a letter dated 16 December 1997 to the prosecutor from Mr Peter Davis, the Executive Officer of the Department stating:

I refer to your immigration status in Australia. 

The Full Court proceedings have been dismissed.

The Department is now making arrangements for your removal -

Counsel will be familiar with that.  Then there is an affidavit of 23 January 1998 filed for the first respondent by Stephanie Kavallaris, and that has with it a number of annexures, up to annexure J, and a lengthy exhibit, SK1.  Now, is there any other material of an evidentiary nature, any other evidence?

MR JOHNSON:   No, your Honour.

MR GERSTEN:   No, your Honour.

HIS HONOUR:   Any objection to that material?

MR JOHNSON:   Your Honour, with respect to the affidavit of Mr Lee, the first affidavit of Mr Lee, paragraphs 15, 16 and 17 are perhaps argumentative but - - -

HIS HONOUR:   Well, it is an interlocutory application, I suppose.

MR JOHNSON:   Yes, indeed, your Honour.  Your Honour, the other two affidavits of 23 December 1997, I must say, we have never actually seen.  They have never been served upon us.  My understanding, your Honour, is they simply go to the urgency of the application and to what was then - - -

HIS HONOUR:   It does not matter, you have to see them.  Have you copies there?

MR GERSTEN:   If your Honour would give me a moment we will be able to find them, yes.  Was my learned friend discussing the second and third ‑ ‑

MR JOHNSON:   That is right, yes.

HIS HONOUR:   Second and third, yes, that is right.

MR GERSTEN:   Would my learned friend have one signed copy of the third and an unsigned copy of the second?  Would that be sufficient for your purposes?

MR JOHNSON:   I am happy with that, yes.  Thank you.

HIS HONOUR:   Gentlemen, the next question is this: I have reprint No 6 of the Act. That is reprinted as at 31 January 1996. Is that the right reprint to be working off, do you know?

MR JOHNSON:   Your Honour, I confess that I have brought the Butterworth Service - - -

HIS HONOUR:   I know you have a service, yes.

MR JOHNSON:   - - - with me which is not helpful to your Honour.

HIS HONOUR:   No, I am deeply suspicious of services.

MR GERSTEN:   May it please the Court, I am working from No 6.

HIS HONOUR:   Right.  Now, Mr Johnson, I wanted to ask you this:  the power to remove, is that found in section 198?  Is that the right section to be looking at?

MR JOHNSON:   Yes, your Honour, section 198 seems to be the power of removal and also, your Honour, with respect, detention - this applicant has been detained under section 189 - and then must be kept in detention pursuant to section 196.

HIS HONOUR:   Yes, I see.  Now, is it section 198(2)?  Is that the particular head?

MR JOHNSON:   Yes, your Honour.

HIS HONOUR:   Now, is there any definition anywhere of the phrase “finally determined”?

MR JOHNSON:   Would your Honour just bear with me a moment?  It is not in the main dictionary provision in the front, your Honour.

HIS HONOUR:   No, I could not find it but then maybe it is tucked in there.  Now, the point from the position of your client, the prosecutor, is whether this power of removal has been activated whilst there is pending this present proceeding.

MR GERSTEN:   That would be my understanding, your Honour.

HIS HONOUR:   Do you say it has not been activated because it has not been finally determined?

MR GERSTEN:   Its intention to be activated has been made clear.  But for the order restraining the Minister it would have been exercised.

HIS HONOUR:   Yes.  The question is whether it can be.  The question is whether the statute has been brought into operation.  There was a letter saying unless you get an injunction there will be a removal.  Mr Johnson ‑ ‑ ‑

MR JOHNSON:   I am sorry, we still have not found, your Honour, any definition of that.

HIS HONOUR:   Yes. Let me just say this: there seems to be, as indicated by the exchange with your opponent, a question as to whether the power has been activated in any event whilst there is pending this particular application in this Court. The Act seems to have been administered on the basis that whilst the Federal Court proceeding was on foot there had been no final determination because the letter of 16 December says, “Well, that is finished now - out”, and on 16 December that was true, but on the 22nd there was this proceeding here.

MR JOHNSON:   I can say this to your Honour that as we sit or stand here now there is no physical arrangement in place for her removal and what Ms Cheetham, who appeared for the Minister on the last occasion, told Justice Kirby and, indeed, what I am instructed to say to your Honour is that there is, with respect, a certain pointlessness about this application given the findings that were made by the Tribunal.  If the present proceeding resulted, in effect, the termination of these High Court proceedings by means of interim relief being denied and the matter going no further because, it seems, having no prospect, then, of course, even if the view was taken that final determination for the purposes of this provision envisaged the conclusion of a proceeding in this Court, then the proceeding in this Court would in fact be terminated.

In short, your Honour, it is our understanding that if this proceeding comes to an end today, then arrangements will be made shortly for her removal under this provision.

HIS HONOUR:   Yes.  The proceeding will not come to an end today because it has to be fixed for a hearing.  As Justice Kirby indicated on 24 December, that was not what he was doing and its fixture for a hearing will depend upon when it can be fixed in the Court list.  One of the vices of this legislation is this fragmentation of proceedings and these matters have to be listed, bearing in mind the Court’s primary responsibilities in the appellate and constitutional spheres.

MR JOHNSON:   Yes.

HIS HONOUR:   So, the question really is the hearing to dispose of the matter not being an immediate prospect at any rate, is your client prepared to undertake not to exercise its powers under 198 pending that hearing or not to exercise them without giving some prior notice of some sufficiency?

MR JOHNSON:   I will get some instructions on that, your Honour.

HIS HONOUR:   I will adjourn in a minute to see what your client’s attitude is.

MR JOHNSON:   Yes.  Can I just say to your Honour - I do not wish to take your Honour’s time with this unnecessarily, and your Honour is correct, of course, in categorising what Justice Kirby did - but the point was taken before Justice Kirby by Ms Cheetham for the Minister that there was a certain pointlessness about that proceeding.

HIS HONOUR:   I can understand the force of that submission.

MR JOHNSON:   If your Honour emerged from today with a very strong view that the case lacked prospects such that it was pointless letting it go forward, well then, of course, we would ask your Honour to not let it go forward.  I just mention that, your Honour.

HIS HONOUR:   Yes, but the question really is has your client’s power of removal under 198 been activated before final determination.

MR JOHNSON:   Yes.  I would like to get some instructions.

HIS HONOUR:   You had better get instructions on that, I think.  Now, the final determination in this Court will not be in immediate prospect, that is all I can say to you.  Can I also ask both counsel, is there any appeal from Justice Davies’ decision within the Federal Court?

MR JOHNSON:   No, your Honour.

MR GERSTEN:   No, your Honour.

HIS HONOUR:   And none proposed?

MR GERSTEN:   No, your Honour.

HIS HONOUR:   Yes, very well.  I will take a short adjournment.

AT 9.54 AM SHORT ADJOURNMENT

UPON RESUMING AT 10.37 AM:

HIS HONOUR:   Yes, Mr Johnson.

MR JOHNSON:   Firstly, your Honour, thank you for allowing us that adjournment which was a little longer than we first hoped.

Firstly, with respect to the question of an undertaking, I am instructed that my client is prepared to undertake not to remove the prosecutor from Australia without giving 72 hours notice in writing to the prosecutor or her solicitors. 

HIS HONOUR:   Let me just get that down.

MR JOHNSON:   Seventy-two hours notice in writing to the prosecutor or her solicitors. That undertaking, of course, your Honour, would expire upon the determination of the matter. It would not live on after that. Then, your Honour raised a question as to the definition of "finally determined" and I wrongly told your Honour that it was not in the dictionary section of the Act and in fact it is. It is in section 5(9) of the Act, your Honour. At least it is after the main dictionary. At least it is not in section 5(1). Section 5(9) provides that:

For the purposes of this Act, an application under this Act is finally determined when either:

(a)  a decision that has been made in respect of the application is not, or is no longer, subject to any form of review under Part 5 of 7; or

(b)  a decision that has been made in respect of the application was subject to some form of review under Part 5 or 7, but the period within which such a review could be instituted has ended without a review having been instituted as prescribed.

Now, your Honour Part 5 captures the process of internal review and the Immigration Review Tribunal. Part 7 captures the review procedure, ending with the Refugee Review Tribunal. So, your Honour, here the Refugee Review Tribunal having determined the matter adversely to the prosecutor, her application has been finally determined as defined in section 5(9) and it follows, your Honour, that the power under section 198 is activated.

HIS HONOUR:   And was activated even during the pendency of the review in the Federal Court under Part 8, is that right?

MR JOHNSON:    That is so.

HIS HONOUR:   I was looking at section 18 of the Act as it stood 10 years ago when one started to deal with these cases. That simply said:

The Minister may order the deportation of a person who is a prohibited non-citizen under any provision of this Act.

This provision cuts that ample power down somewhat.

MR JOHNSON:   That is so, your Honour, yes.  But certainly, your Honour, we would accept that if, upon the basis of the undertaking that is available and that I have given on behalf of the Minister, the Court thought that the most expeditious course was to list the matter for final determination ‑ ‑ ‑

HIS HONOUR:   Yes.  Now, I was going to raise this with counsel.  It seems to me that, having looked at the material, this may well turn out to be another aspect, really, of the fact case that Justice Davies referred to.  Now, in all the circumstances, I would not be minded to grant an order nisi.  It would simply go under Order 55 rule 2 in the first instance to a Full Court.

MR JOHNSON:   Yes.

HIS HONOUR:   Now, directions would have to be given as to any further evidence.  It looks to me at the moment as if the evidence is fairly complete, I would think.

MR JOHNSON:   Your Honour, the only problem with the evidence, I think, is that there are some documents which have originated from South Africa which - the original copies in our possession are very very poor.

HIS HONOUR:   They are, yes.

MR JOHNSON:   We might have to attempt a typescript of some of those.  But that is not really a matter of evidence, I suppose, so much as just preparing some typescripts.

HIS HONOUR:   I should probably give a direction for the filing of any further evidence and give liberty to apply before the matter is set down before a Full Court.  Mr Gersten, what do you say about all this?

MR GERSTEN:   Your Honour, I would just direct the Court's attention to, I suppose, a detail, that our client does not speak English and I do not believe that it would be terribly helpful to send notice to her at Villawood, so I would submit to the Court that the prudent approach to take would be the giving the solicitor of record notice ‑ ‑ ‑

HIS HONOUR:   Yes, but she might engage other solicitors, you see, or she might dispense with the solicitors.

MR GERSTEN:   In which case could we say "and" as opposed to "or".

HIS HONOUR:   Yes, indeed.

MR GERSTEN:   Of course, I would submit to the Court that the most prudent thing would be suggesting that the Court adopt the position that she would not be removed until further order of the Court.

HIS HONOUR:   What would be the ground for that?

MR GERSTEN:   Let us say that we were to receive notice of an impending or imminent removal.  Then we would have to ask the High Court to convene itself an urgent or emergency session and be back where we are now.  I think the prudent way to avoid that ‑ ‑ ‑

HIS HONOUR:   I know that, but what is the legal ground for restraining the implementation of the Minister’s power of removal? One only grants injunctions to restrain something which is otherwise illegal or wrongful. Given the definition to which Mr Johnson has referred in section 5(9), the power seems to be activated.

MR GERSTEN: Section 5(9), your Honour. I did have a look at that.

HIS HONOUR:   And was activated throughout the Federal Court proceedings.

MR GERSTEN:   Interestingly, that would be one interpretation.  There is another interpretation, we would submit ‑ ‑ ‑

HIS HONOUR:   What is the other one?

MR GERSTEN:   That certainly does not preclude the original jurisdiction of the High Court from being invoked by virtue of section 75 of the Constitution. That having been done, I think it takes it outside of the ambit of the Act. If the Act were silent ‑ ‑ ‑

HIS HONOUR:   I know, but why is it wrongful?

MR GERSTEN:   Your Honour, I point out that section 486 of the Act specifically acknowledges the powers of the High Court with respect to review of matters subject to the Act.

HIS HONOUR:   I know that. But why is it wrongful? You just cannot say section 75 of the Constitution, that it is an illegal system, and why is it wrongful?

MR GERSTEN:   Your Honour, I am afraid I do not understand the question.

HIS HONOUR:   What is the wrongful act that is sought to be restrained by the exercise of this power which you concede has arisen and is exercisable?

MR GERSTEN:   Yes. I see a separation of powers issue. The Court under the original jurisdiction is hearing a matter. It would be relieved of its obligations pursuant to the original jurisdiction vested and granted by the Constitution would -to the Executive unilaterally remove the individual. It would be, I guess, a unilateral act of divestiture of the jurisdiction of the High Court granted by the Constitution. So I would see a 51, 71 problem.

HIS HONOUR:   Why?  Why would it divest the jurisdiction?

MR GERSTEN:   If the applicant is no longer within the jurisdiction, there is no longer a case or controversy for the Court to decide. 

HIS HONOUR:   Why?

MR GERSTEN:   She is not here any more.

HIS HONOUR:   Yes, so?  Many refugees make application whilst outside Australia.  They do not enter Australia illegally first. 

MR GERSTEN:   I cannot respond to that, your Honour.  I would say, in a practical sense, once this woman was removed forcibly from Australia she would not be permitted to return to the jurisdiction once again by the Executive department of government.

HIS HONOUR:   I do not need to decide the point, but if I were you, I would grab that undertaking that has been offered with both hands.

MR GERSTEN:   I will go ahead and grab that, your Honour. Thank you.

MR JOHNSON:   Your Honour, if I could just say, with respect to the form of the undertaking, at this stage I do not have instructions to make it to the plaintiff "and" her solicitor.  I can only offer it in the alternative form that I have.  Naturally, your Honour, as a matter of practice the Department and the AGS would ordinarily inform the solicitors.  But we only need it in this form, your Honour, to capture the possibility that the plaintiff might decide not to have any more solicitors.

HIS HONOUR:   Yes.  You would not look too good if you took some smart dodge which I would not think would be done for a minute.  There is a real difficulty, though, that this case does throw up.  It is this fragmentation of the legal process.  It is most unfortunate.

MR JOHNSON:   Yes.  Your Honour, certainly my friend does seek to raise grounds which, at least in form, are excluded below.

HIS HONOUR:   Yes, that is right.

I had better indicate for the record shortly how the matter stands and how it got to its present situation.

On 24 December 1997 a Justice of the Court ordered that until 4 pm on Wednesday, 28 January 1998, or until further or other order of the Court or of a Justice of the Court, the first respondent, the Minister for Immigration and Multicultural Affairs, his servants and agents be restrained from removing the prosecutor from Australia.  His Honour indicated that, when the matter came back before the duty Judge on 28 January 1998, what would be at stake would be the continuation or expiration of that injunctive relief. 

Upon the matter coming on this morning, and after discussion with counsel, counsel for the first respondent proffered an undertaking that until the determination of the matter or, I suppose you had better add, earlier further order, the first respondent, his servants and agents, would not remove the prosecutor from Australia without first having given 72 hours notice in writing to the prosecutor or his solicitors.  Does that reflect it, Mr Johnson?

MR JOHNSON:   Yes, your Honour.

HIS HONOUR:   In my view, the Court should accept that undertaking which is given to the Court by counsel and that is sufficient to avoid the need further to rule today on whether the injunction which expires at 4 pm today should be continued. 

I should give directions as to the further disposition of the substantive application.  Before doing so, it is appropriate to indicate the background to the application.

On 18 March 1997, the prosecutor made an application for a protection visa as provided in s 36 of the Migration Act 1958, ("the Act") and subclass 866 in Schedule 2 of the Migration Regulations. The application was made on the footing that the prosecutor was a non-citizen in Australia to whom this country has protection obligations under the Refugees Convention as amended by the Refugees Protocol. The application was refused on 21 June 1997. The prosecutor then applied for a review of the decision by the Refugee Review Tribunal, ("the Tribunal"). That body, in written reasons given on 3 September 1997, held it was satisfied that the application for review was valid and that it had jurisdiction to review the decision. However, having considered the evidence, the Tribunal determined that the prosecutor is not a person to whom Australia has protection obligations under the convention. It followed that she did not satisfy the criterion set out in s 36 of the Act for the grant of a protection visa. Accordingly, the Tribunal affirmed the decision not to grant a protection visa. The decision of the Tribunal was given after, and took account of, the decisions of this Court in Minister for Immigration and Ethnic Affairs v Wu (1996) 185 CLR 295, Applicant A and Anor v Minister for Immigration and Ethnic Affairs and Anor (1997) 142 ALR 331 and Minister for Immigration and Ethnic Affairs v Guo and Anor (1997) 144 ALR 567.

The prosecutor then applied to the Federal Court under s 476 of the Act for review of the decision of the Tribunal. The grounds upon which the Federal Court may proceed in such matters are limited to those specified in s 476, and s 486 renders the jurisdiction of the Federal Court exclusive of the jurisdiction of all other courts other than the jurisdiction of this Court under s 75 of the Constitution. Section 476(2) specifically excludes from the grounds available in the Federal Court the grounds (a):

that a breach of the rules of natural justice occurred in connection with the making of the decision;

and (b):

that the decision involved an exercise of a power that is so unreasonable that no reasonable person could have so exercised the power.

Further, s 476(3) removes from the purview of the Federal Court the taking into account of "irrelevant consideration.....in the exercise of a power" and the failure in the exercise of a power to take into account a relevant considerations. See subsection (3), paragraphs (d) and (e).

The Full Court application came before Davies J who, on 11 December 1997, dismissed the application.  I am informed this morning from the Bar table that there has been, and will be, no appeal instituted to the Full Court of the Federal Court against his Honour's decision.  Davies J held he was not satisfied that there was an error in the decision of the Tribunal and, in particular, was not satisfied that there was any error which the Federal Court would have jurisdiction to correct.  Davies J said:

It is important to keep in mind that, in fulfilling the function conferred upon it by s 476 of the Act, the Court must look to the matters specified in the grounds of review. It is not the function of the Court itself to review the merits of the case or to decide the facts of the case. The facts are for the administrative decision-maker, the Refugee Review Tribunal. The function of the Court is to see whether there was something having the nature of an error of law in the decision of the Tribunal including an error in the approach of the Tribunal to the questions before it. The present case falls very much into the category of a fact case, for the Tribunal did not accept the substance of the claims made by the [prosecutor]

Dealing with refugee claims can be a difficult matter.  It is very often a complex task for an administrative decision-maker to arrive at a view of the facts of the case.  The decision-maker, in order to grant refugee status, must be satisfied as to a number of facts:  who the applicant is, his or her country of nationality, why it was that the applicant left that country, whether the applicant did so for a fear of persecution and whether that fear of persecution was well-founded, as to the last of which the "real-chance” test will apply.

The prosecutor arrived in Australia on 7 March 1997 on a South African Airlines flight which originated in Johannesburg. She was detained under s 189 of the Act and remains in detention under s 196. It appears that the prosecutor had left her country of origin and nationality, Ethiopia, and had found her way to South Africa via Kenya. Davies J found that at relevant times the prosecutor gave three stories, differing substantially. The first was given in connection with a claim that she had made in South Africa for refugee status, the second was given when she arrived in Australia, and the third was her case put to the Tribunal.

His Honour identified the substance of the case as put to the Federal Court as one based upon the allegation that the prosecutor had been detained in Ethiopia and held in prison for two months by soldiers and that she had been repeatedly raped and abused during that period.  The submission made to his Honour was that the Tribunal had erred in reaching a conclusion adverse to the prosecutor because there was no finding that these events did not occur.  However, Davies J said:

It seems to me, however, that the Tribunal did not accept that evidence and that the Tribunal made that clear.  The Tribunal certainly considered it possible that the applicant might have suffered some form of abuse in the past and that her difficulty with the truth may be consistent with a disturbed past.  However, the Tribunal did not accept that such abuse had occurred as a result of her arrest by government soldiers, that she had been arrested because she had been a member of AAPO or that the mistreatment of which she complained was attributable either to her membership of AAPO or to her ethnicity.

The term "AAPO" identifies the All Amhara People's Organisation, a body resistant to the present regime in Ethiopia.  The prosecutor had claimed that members of the Amhara ethnic group such as herself were systematically persecuted by the regime. 

Five days after Davies J delivered his decision, that is to say on 16 December 1997, an officer of the first respondent's department wrote to the prosecutor at the Villawood Detention Centre stating:

I refer to your immigration status in Australia.  As you are aware, your application to the Federal Court was dismissed.  You now have no outstanding matters for consideration before the Department and your status in Australia is that of an unlawful non‑citizen.

This Department is now making arrangements for your removal from Australia and this letter is your notice to that effect.

On 22 December 1997, that is to say some days after the date of this letter, the prosecutor invoked the jurisdiction of this Court under s 75 of the Constitution seeking orders in effect to provide for judicial review of the decision of the Tribunal. I have referred to the effect of s 476(2) and s 476(3) in curtailing the grounds which had been available in the Federal Court. The prosecutor sought to rely on grounds of review available only in this Court. Hence the fragmentation of the litigation.

Following discussions between the solicitor for the prosecutor and an officer of the Department, it became apparent that arrangements were being made to remove the prosecutor on 24 December 1997.  However, on that day, the matter came before a Justice of the Court.  The second respondent, the Tribunal, submitted to any order which the Court might make, save as to costs, and was excused.  The Court heard the legal representatives of the prosecutor and the Minister and then made the order to which I have already referred.

In view of the undertaking which has been proffered, and which the Court accepts, what now remains this morning is the question of the further conduct of the principal application for relief.  I would not grant an order nisi in the first instance.  There is, I think, a real prospect that, as with the grounds which were available in the Federal Court, the case in this Court, in substance and reality, may well turn upon the administrative fact-finding by the Tribunal with a like outcome to that reached in the Federal Court.  On the other hand, there has been no detailed consideration of the grounds urged in the written submissions in support of the substantive application for relief, which were handed in this morning by counsel for the prosecutor. 

In so far as the application seeks relief of the nature identified in Order 55 of the High Court Rules, I would, pursuant to Order 55 rule 2, direct that the application be made by notice of motion to a Full Court. In so far as the prosecutor is minded to seek additional relief outside that provided in Order 55, in particular injunctive relief, that application once made in proper form may, by a direction under s 18 of the Judiciary Act, be directed to be argued before a Full Court, together with the application referred under Order 55 rule 2. However, no order under s 18 is made at this stage.

I would direct that any further affidavits for the prosecutor be filed and served on or before - is 28 days appropriate - 27 February 1998 and any further affidavits for the first respondent be filed and served on or before - a month after that, Mr Johnson?

MR JOHNSON:   Yes, your Honour.

HIS HONOUR:   On or before 27 March 1998.  Any affidavits in reply be filed and served by the prosecutor on or before 17 April 1998.  I would grant liberty to apply on 7 days written notice.  I will also certify for counsel.  Costs of the proceeding on 24 December 1997 and of today should be costs in the cause.  Is that appropriate?

MR JOHNSON:   Yes, we are happy with that, your Honour.

HIS HONOUR:   I should add this. The history to date of this litigation, which I have outlined, indicates the procedural difficulties for all concerned that arise from the legislative fragmentation of what is, in truth, the one controversy between the parties. Further, s 485(3) of the Act states:

If a matter relating to a judicially-reviewable decision is remitted to the Federal Court under section 44 of the Judiciary Act 1903, the Federal Court does not have any powers in relation to that matter other than the powers it would have had if the matter had been as a result of an application made under this Part.

In the present case, that provision operates to exclude the exercise of the remitter power for which the Parliament otherwise has made provision in s 44. That power of remitter is of considerable importance in facilitating the exercise of this Court of its primary and unique functions. These are, first, in the original jurisdiction, the disposition of certain matters arising under, or involving, the interpretation of the Constitution and secondly, its function, subject to the grant of special leave, as a final Court of general appeal for the whole nation. The result achieved by the Act as it now stands is to encourage the twin evils of cost and delay and, it would appear, to impede the efficient administration of the migration laws.

The state of the list with respect to the exercise by the Court of its primary and unique functions is such that there must be some delay, once the present matter is ready, in the availability of a date for a final hearing in the sittings of the Full Court which have been scheduled for this year. 

The orders which I pronounce are:

1.  The Court accepts the undertaking given to the Court by counsel for the first respondent that until the determination of the matter, or earlier further order, the first respondent, his servants and agents, will not remove the prosecutor from Australia without first having given 72 hours notice in writing to the prosecutor or her solicitors.

2. Direct that the application for prerogative relief under s 75(v) of the Constitution be, pursuant to Order 55 rule 2, made by notice of motion to a Full Court.

3.  Any further affidavits for the prosecutor be filed and served on or before 27 February 1998.  Any further affidavits for the first respondent be filed and served on or before 27 March and any affidavits in reply be filed and served by the prosecutor on or before 17 April.

4.  Liberty to apply on seven days written notice.

5.  Certify for counsel.

6.  Costs of the proceeding on 24 December 1997 and of today be costs in the case.

Is there anything else?

MR GERSTEN:   No, your Honour.

MR JOHNSON:   If the Court pleases.

HIS HONOUR:   The Court will now adjourn.

AT 11.12 AM THE MATTER WAS CONCLUDED