Applicant S200-2002, Ex parte - Re MIMIA & Anor

[2002] HCATrans 498

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S200 of 2002

In the matter of -

An application for Writs of Mandamus and Certiorari against MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

First Respondent

PRINCIPAL MEMBER OF THE REFUGEE REVIEW TRIBUNAL

Second Respondent

Ex parte –

APPLICANT S200/2002

Applicant/Prosecutor

GAUDRON J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON MONDAY, 18 NOVEMBER 2002, AT 11.01 AM

(Continued from 23/9/02)

Copyright in the High Court of Australia

MR J.S. VAN AALST:   If your Honour pleases, I appear for the prosecutor.  (instructed by the applicant/prosecutor)

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

HER HONOUR:   Now, this is a matter, is it not, that is caught by the provisions which were enacted in November of last year?  Is that correct?

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

MR VAN AALST:   Yes, your Honour.

HER HONOUR:   So, the real issue, I imagine, is whether or not this should stand over pending the outcome of the proceedings in S134 and S157.

MR JOHNSON:   Your Honour, we addressed that in the first set of submissions to your Honour earlier in the year.  The Minister’s position, your Honour, is that ultimately, if an order nisi is granted, then he may rely on the privative clause but ‑ ‑ ‑

HER HONOUR:   I do not think you can even grant an order nisi if the privative clause operates, can you?  I wonder if you can even refuse an order nisi if the privative clause operates.

MR JOHNSON:   Your Honour, the position that we took before your Honour before and the position that we still take is that in this particular case there is not shown to be an arguable case of jurisdictional error absent the privative clause.  If your Honour thought that it was necessary to consider the privative clause in order to consider the application for an order nisi, then our application would be that this matter should stand over until after the Court has decided the two reserved matters.  That is our position, your Honour.  In other words, your Honour would only ‑ ‑ ‑

HER HONOUR:   Well, if I thought there were absolutely no merit in the application I could dismiss it now.

MR JOHNSON:   Then your Honour would dismiss it, but if your Honour thought that your Honour had to consider the privative clause in the way that your Honour’s question foreshadows, then the Minister’s application would be that the application for an order nisi go over until the Full Court decisions.

HER HONOUR:   Yes, thank you.

MR VAL AALST:   Yes, I do not take a different position from that, your Honour.  I think if we do not get over the first hurdle in satisfying your Honour, on the face of it, we have an arguable case, then we would take the view your Honour can dismiss our application.  But I agree with my friend that if your Honour takes the view, prima facie, there is an arguable case, then it should stand over.  It seems the practical or be the only course.

HER HONOUR:   Yes.  Well, Mr Johnson, that is what I would be minded to do ‑ I have read your submissions ‑ unless you have anything further to say on the basis that it is simply not arguable.

MR JOHNSON:   If your Honour has read the submissions, then I have nothing further to say to your Honour.  I would ask your Honour to do that, to stand over the application for an order nisi until after S134 and S157 come down.

HER HONOUR:   Very well.  Well, I will stand the matter over pending the decision in matters S134 and S157 of 2002, and certify for the attendance of counsel.

MR JOHNSON:   Thank you, your Honour.

HER HONOUR:   Do you need liberty to restore?  I suppose, liberty to either side to restore on seven days notice.

MR JOHNSON:   We are content with that, your Honour.

MR VAN AALST:  Thank you, your Honour.

HER HONOUR:   The Court will now adjourn.

AT 11.05 AM THE MATTER WAS ADJOURNED