Applicants S184-02, Ex parte - Re MIMIA

[2002] HCATrans 227

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry         
  Sydney  No S184 of 2002

In the matter of -

An application for Writs of Prohibition, Certiorari and Mandamus against MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS OF THE COMMONWEALTH OF AUSTRALIA

Respondent

Ex parte –

APPLICANTS S184/2002

Applicants/Prosecutors

GAUDRON J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 11 JUNE 2002, AT 11.35 AM

Copyright in the High Court of Australia

APPLICANTS S184/2002 appeared in person.

MR G.T. JOHNSON:   I appear for the respondent Minister.  (instructed by the Australian Government Solicitor)

HER HONOUR:   Yes.

MR JOHNSON:   Your Honour, I have spoken to the interpreter who is here for the unrepresented applicants.  The female applicant is suffering morning sickness and has been ill during the morning and has asked whether it would be possible for her case to be dealt with earlier in the list.

HER HONOUR:   Yes, very well.  We will take that matter next.  I am sure the other matters will not mind.  This is matter No 184, is it?

MR JOHNSON:   That is right.  It is the last matter in the list, your Honour.

HER HONOUR:   Yes.

MR JOHNSON:   It is S184 of 2002.

HER HONOUR:   Yes.  Would the prosecutors come up to the Bar table please.  Would you like to speak to your application now?

THE INTERPRETER:  Do they stand up to speak or sit down?

HER HONOUR:   If they wish, or not, as the case may be.  It is a matter entirely for them.

THE INTERPRETER:   Your Honour, if she can sit.  She is not feeling well.

HER HONOUR:   Yes, certainly.  Perhaps the husband/applicant should tell me on what basis he seeks relief in this Court, or on what basis relief is sought.

THE INTERPRETER:   We sincerely wish that the matter will be remitted back to the Minister for reconciliation and we did not have enough time to have an interview with our solicitor.

HER HONOUR:   Are the applicants intending to be legally represented?

THE INTERPRETER:   Yes.

HER HONOUR:   So, are they, in effect, seeking an adjournment to be legally represented?

THE INTERPRETER:   Yes, please, your Honour.

HER HONOUR:   Who is the solicitor?

THE INTERPRETER:   We have already made appointments but the scheduled time is not – we have given the solicitor our file but not enough time for a proper interview face to face.

HER HONOUR:   Yes, but who is the solicitor?

THE INTERPRETER:   I will bring that card next time.  I cannot say that in English.

HER HONOUR:   Well, what do you say, Mr Johnson?

MR JOHNSON:   Your Honour, the suggestion that the applicants require more time to see a solicitor or seek more time to see a solicitor takes us by surprise.  The application has been on for some time now and there has not been any such indication given to us.  Your Honour, with respect, I would submit that what the applicants have said would not persuade your Honour to grant an adjournment.  I am not sure whether your Honour has had the opportunity to look at the outline of submissions that I put on but ‑ ‑ ‑

HER HONOUR:   I have read them briefly but ‑ ‑ ‑

MR JOHNSON:   Well, your Honour, could I just say this:  the substantive point appears to be – the central claim appears to be for an order for mandamus directed to the Minister to require him to consider applications made under sections 48B and 417.  This is an issue very similar to the one that your Honour dealt with as part of the first matter today.  The short answer to that, we have submitted, is that there is no duty.  Now, I do not want to argue the merits of the case in the context of the adjournment application but, your Honour, the applicants have come along with an order nisi, a draft order nisi, that does not state any grounds at all.

HER HONOUR:   Yes.  That is one of the reasons why one is sympathetic towards the application.

MR JOHNSON:   True.  Yes, I accept that, your Honour.  But, on the face of it, your Honour, it is an application of just seeking the enforcement of a duty which does not exist.

HER HONOUR:   Yes, but it occurs to me there might be some basis for a fresh application and perhaps a lawyer can sort things out properly.

MR JOHNSON:   A matter for your Honour.  The application does not seem to be put on the grounds of illness.  It is only put on the grounds of ‑ ‑ ‑

HER HONOUR:   No, I know that, but they feel this might be a matter for some further application to the Minister, is what I am thinking.

MR JOHNSON:   There have already been two applications to the Minister.  Really, that is why we are here, your Honour.  There was an application under section 48B and section 417 which failed some time ago.

HER HONOUR:   What is 48B?

MR JOHNSON:   Section 48B is the provision which, in effect, allows the Minister if he thinks that it is in the public interest to do so, to make – to take a step permitting a second application to be brought.

HER HONOUR:   Yes.  Well, even so, look, I think it is hardly fair to people who do not speak the language to deny them at least an opportunity to get legal representation.

MR JOHNSON:   Very well, your Honour.

HER HONOUR:   I am prepared to adjourn this matter to enable you to get legal representation.  However, it will be adjourned only until – I know I am in Sydney on 8 July, otherwise it is not – is that a convenient time for you?  I know that is when I am available, anyway.

MR JOHNSON:   Could your Honour just bear with me for a moment?  Your Honour, I am not certain as to my position on 8 July but if that is the next occasion your Honour is going to be free, we would prefer to take that date.

HER HONOUR:   Yes.  Can you explain that I am prepared to adjourn this matter until 8 July to enable the applicants to be legally represented but the matter must go on on that date?  First, I should ask:  is that date convenient?

THE INTERPRETER:   Yes, your Honour.

HER HONOUR:   So, they should be legally represented on that date.  They should tell the solicitor that the matter will go on on that date.  They should get in contact with the solicitor straightaway.  Before they leave the Court today – this may require them to wait some little time – they should get a copy of what I have said today.  Is that possible?  You should ask them if you would, do they have copies of all the documents that have been filed?

THE INTERPRETER:   Yes, your Honour.

HER HONOUR:   They have copies?  Well, they will need to take those documents to their solicitor, together with a copy of today’s transcript.  That is all understood?

THE INTERPRETER:   Yes.

HER HONOUR:   And they will wait for this transcript.  That may be some little time.  It may not be available – they need not wait for the document.  It will be sent.  Is the address of the applicants still 9 “Gilnour” Street, Penshurst, or “Gilmore”?

THE INTERPRETER:   Yes.

HER HONOUR:   Well, the transcript will be sent to them but they must take that to their lawyers.

THE INTERPRETER:   Yes.

HER HONOUR:   Very well.  I will certify for the attendance of counsel.  I will reserve the question of costs until the matter is disposed of.

The applicants may go now but they must go and see their solicitor very quickly.  Thank you.

MR JOHNSON:   Thank you, your Honour.

HER HONOUR:   Thank you very much, Mr Johnson.

AT 11.47 AM THE MATTER WAS ADJOURNED

UNTIL MONDAY, 8 JULY 2002