Applicant S395-2004, Ex parte - Re MIMIA

[2004] HCATrans 436

[2004] HCATrans 436

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry         
  Sydney  No S395 of 2004

In the matter of -

An application for a Writ of Prohibition against MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

Ex parte –

APPLICANT S395/2004

Applicant/Prosecutor

HEYDON J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON MONDAY, 1 NOVEMBER 2004, AT 10.01 AM

Copyright in the High Court of Australia

APPLICANT S395/2004 appeared in person. 

MR S.B. LLOYD:   May it please the Court, I appear for the respondent.  (instructed by Clayton Utz)

HIS HONOUR:   You are the applicant? 

APPLICANT S395/2004:   Yes. 

HIS HONOUR:   Come forward, if you would, to the Bar table.  Now, Mr Lloyd, you appear for the Minister. 

MR LLOYD:   I do, your Honour, yes. 

HIS HONOUR:   And your attitude?

MR LLOYD:   Is that this being a section 417 challenge, this Court ‑ ‑ ‑

HIS HONOUR:   Before we go any further, how well do you speak English?

APPLICANT S395/2004:   Not very well.

HIS HONOUR:   Do you want an interpreter?

APPLICANT S395/2004:   Yes, I already asked for the interpreter.

HIS HONOUR:   Mr Lloyd, the Deputy Registrar informed me that it has not been possible to obtain a Tongan interpreter for this time.  I am prepared to assume that the applicant understands English well enough to make proceedings which involve remitting this to the Federal Court not procedurally unsatisfactory, but proceedings which might involve him being removed from the country seem to be in a different category.

MR LLOYD:   Well, I understand the difficulty.  The applicant has been in the country for 16 years.  One might query whether or not his English is sufficient to ‑ ‑ ‑

HIS HONOUR:   District Court judges get into a lot of trouble for saying things like that.

MR LLOYD:   I suppose so, your Honour.  The difficulty is this.  Section 476 of the Act is designed to take the jurisdiction of the Federal Court away in relation to this kind of matter.  There is a question now about – I mean, it may well be that if that court can deal with it on the

assumption that there were a jurisdictional error, if there was a jurisdictional error, on the view of this Court in S157, S134, it would then have jurisdiction.  If there is no jurisdictional error, it would not have jurisdiction to deal with a decision under section 417, by virtue of section 476 of the Act. 

The only reason I flag it is that prior to Parliament proroguing, there was a bill which was designed to – my client would say – rectify certain unintended consequences of the decision of this Court in S157, which would return it to the status quo; not the effect of the privative clause, but it would mean that only this Court has jurisdiction to deal with this kind of decision, on any view. 

HIS HONOUR:   That is a prospect which my colleagues and I can scarcely contain our pleasurable excitement about, but do you say that the Federal Court has no jurisdiction if this matter is remitted? 

MR LLOYD:   Well, it certainly has jurisdiction to determine whether or not it has jurisdiction, and at the moment the critical decision for that is whether or not there is a jurisdictional error.  So it would, in effect, have jurisdiction to determine whether or not there is a jurisdictional error.  I would accept that.  That is the position at the moment.  If it finds there is no jurisdictional error, then, of course, it must dismiss it for lack of jurisdiction.  I do not say it cannot be remitted is the short answer, although there is a possibility that, if it is remitted, the court’s jurisdiction will be taken away from under it.  That is the only ‑ ‑ ‑

HIS HONOUR:   By legislation yet to be enacted.

MR LLOYD:   Exactly, but which has been introduced into Parliament. 

HIS HONOUR:   Yes, you can sit down.  Thank you. 

The applicant requested an interpreter, the language in question being the language spoken in Tonga.  It has not been administratively possible to arrange an interpreter for today. 

The Minister would prefer the application in this Court to be dismissed.  There is no opposition from the applicant to the matter being remitted to the Federal Court for consideration.  The Minister’s counsel has drawn attention to certain procedural problems that may arise in the Federal Court if legislation which was introduced into, but not enacted by, Parliament before Parliament was prorogued is in future enacted.  Those problems will have to be dealt with if the occasion arises. 

I think in the circumstances of the applicant’s request for interpretation, which it has not been found possible to meet, there is no alternative but to remit the matter to the Federal Court.  Accordingly, I make the following orders: 

1.        The further proceedings in this application, including any application for the enlargement of time, be remitted to the Federal Court of Australia (“the Federal Court”); 

2.        The application proceed in the Federal Court as if the steps already taken in this Court had been taken in the Federal Court; 

3.        The Registrar of this Court forward to the proper officer of the Federal Court copies of all documents filed in this Court; 

4.        The costs of the application to the date of remission are to be according to the scale applicable to proceedings in this Court, and thereafter according to the scale applicable to the Federal Court and in the discretion of that court. 

It is certified that this was a proper matter for the attendance of counsel in chambers. 

The Court will now adjourn. 

AT 10.07 AM THE MATTER WAS CONCLUDED