Applicant M291-2003, Ex parte - Re MIMIA

[2004] HCATrans 153

[2004] HCATrans 153

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry         
  Melbourne  No M291 of 2003

In the matter of -

An application for a Declaration or for a Writ of Prohibition or for an Injunction or for orders in the nature of Certiorari or Mandamus against THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

Ex parte –

APPLICANT M291/2003

Applicant/Prosecutor

HAYNE J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON WEDNESDAY, 5 MAY 2004, AT 9.32 AM

(Continued from 26/2/04)

Copyright in the High Court of Australia

APPLICANT M291/2003 appeared in person.

MR R.C. KNOWLES:   If it please the Court, I appear for the respondent.  (instructed by Clayton Utz)

HIS HONOUR:   Perhaps we might, Mr Interpreter, ask you to take an affirmation to interpret properly.

FREDERICK QUACH, affirmed as interpreter:

HIS HONOUR:   Mr Knowles, I have read the papers that have been filed.  Have you seen the two letters that the applicant has sent to the Registry, a letter of 23 April and a letter of 3 May?

MR KNOWLES:   I have not, your Honour.

HIS HONOUR:   Can I have them handed down to you and give you an opportunity to look at them, Mr Knowles.  They are letters in which the applicant asks, in effect, that the matter stay here and not be remitted. 

MR KNOWLES:   Yes, your Honour.

HIS HONOUR:   Is there anything in those matters or otherwise which would make you wish to reconsider your application that the matter be remitted?  I am not suggesting it should or should not.

MR KNOWLES:   No, your Honour.  I do not know if your Honour requires me to go into the written submissions in any way.

HIS HONOUR:   No, thank you, Mr Knowles.  Perhaps if I could have those letters back so that we can keep our files intact.  I am sure we can arrange for some copies of them to be made available for your files ultimately, but I had better not start giving away our files. 

Mr Applicant, I said to you last time that there is an Act of the Parliament that tells me that I cannot call you by your proper name.  Forgive me therefore for addressing you as Mr Applicant rather than by your proper name.  I have read what you wrote in your two letters and I have read that you want your case to stay in this Court.  Is there anything else that you want to say to me in support of that argument that the case should stay here?

APPLICANT M291/2003 (through interpreter):   Because I do not have any legal knowledge of this case at all, so I can only explain my case from my perspective.  Since the submission was put to the immigration in 2001, it was rejected and I have gone through RRT twice as well as the Federal Court.  I believe that I was not given the opportunity to put forward my case and therefore just a result was given.  DIMA made the decision in less than 20 days.  Therefore, when I came from New Zealand to Australia, I did not have any preparation.  Including my leaving expenditure, I did not have any funds for my ‑ ‑ ‑

HIS HONOUR:   Can I interrupt you.  Would you explain to the applicant that the only question I will decide today is which court will hear this application.  So the only question is:  should I send it to the Federal Court?  Is there anything more than what you have said in your letters that you want to say about that question?

APPLICANT M291/2003 (through interpreter):   No, that is all, your Honour.

HIS HONOUR:   Yes.  Then that is the only question that I have to decide today and if he has nothing more to say about that, perhaps if he would and you would be good enough to sit down.

On 5 December 2003 the applicant commenced an application in this Court by filing his affidavit affirmed on 3 December 2003 for orders in relation to a decision of a delegate of the Minister for Immigration and Multicultural Affairs refusing his application for a protection visa and/or in relation to a decision described as a decision of a delegate of the Minister made on 24 April 2002 refusing to renotify the applicant of the decision.

This application and a number of other applications for relief concerning decisions made under the Migration Act 1958 (Cth) were called over by me on 26 February 2004. As I indicated at that time, in general the migration proceedings pending in the Court which were started after the coming into operation of the privative clause provisions of Part 8 of the Act would be remitted to the Federal Court of Australia. At the time those representing the Minister had formed the view that remitter of this application was inappropriate. So that the parties might have a better opportunity to consider what course should be taken in this matter, I adjourned the application for further consideration.

The Minister now submits that there is no reason not to remit further proceedings in the application to the Federal Court of Australia.  At that hearing the questions which would have to be considered would very likely include questions about whether an extension of time for seeking the relief which the applicant seeks should be granted, whether earlier proceedings taken by the applicant in the Federal Court preclude the application which he now makes and a number of issues relating, among other things, to what is described as the renotification decision.

The applicant has submitted in written submissions that it would be better if the application were to be heard and determined in this Court.  In the end, I think his submissions are to be understood as expressing a degree of lack of confidence in the way in which he expects that the Federal Court may deal with his application.  That itself is no reason to retain this matter in this Court.

The fact remains that the work of this Court as a final court of appeal and in its constitutional jurisdiction is such that it is only in the rarest of circumstances appropriate for it to act as a court of trial.  If at trial of a proceeding, whether in the Federal Court or in other courts, error is made, provision is made for appellate correction in appropriate cases.  Ultimately it is this Court which becomes the final court of appeal should error not be corrected at earlier stages of the judicial process.

In all the circumstances, it is appropriate that an order for remitter be made.  Proceedings will be remitted to the Federal Court of Australia on the ordinary terms.  In this case, as in other cases dealt with at the callover of 26 February 2004, the order will require the Minister’s representatives to prepare the necessary copies of documents for transmission to the Federal Court of Australia and it will be for the Minister’s representatives to attend to the taking out of the necessary order.  The costs in this Court will be costs in the cause.  They are to be taxed in respect of proceedings taken in this Court according to the scale applicable in this Court.  Thereafter costs will fall to be taxed according to the scale in the court to which proceedings are remitted.  I certify for the attendance of counsel.

Mr Interpreter, would you be good enough to explain to the applicant that the order I have made is that his case will be sent to the Federal Court.  It will be dealt with by that court and it is that court or the Minister’s representatives who will tell him what the next steps in the proceedings will be.  Thank you very much.  Mr Interpreter, thank you for your attendance and your services.

THE INTERPRETER:   Thank you, your Honour.

HIS HONOUR:   Is there anything you wish to say about the form of order, Mr Knowles?

MR KNOWLES:   No, your Honour.

HIS HONOUR:   Very well.  Call the next matter.

AT 9.54 AM THE MATTER WAS CONCLUDED