Applicants S194-2002, Ex parte - Re RRT & Anor

[2002] HCATrans 435

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry  

Sydney  No S194 of 2002

In the matter of -

An application for Writs of Mandamus and Certiorari against REFUGEE REVIEW TRIBUNAL

First Respondent

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENIOUS AFFAIRS

Second Respondent

Ex parte –

APPLICANTS S194/2002

Applicants/Prosecutors

GAUDRON J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON MONDAY, 28 OCTOBER 2002, AT 10.17 AM

Copyright in the High Court of Australia

MR M.A. ROBINSON:   If the Court pleases, I appear for the applicant/prosecutor.  (instructed by the applicant/prosecutor)

MR J.D. SMITH:   If it please the Court, I appear for the second respondent.  (instructed by the Australian Government Solicitor)

HER HONOUR:   I hold a certificate from the Deputy Registrar who certifies that she has been informed by the solicitor for the first respondent that it will submit to any order of the Court save as to costs, and does not intend to appear at the hearing.  Now, Mr Robinson, I see that there are some documents here that I have not seen. 

MR ROBINSON:   If I could hand your Honour a draft short minutes of order that the applicant/prosecutor seeks to be made this morning.  We have filed a number of affidavits, I am afraid woefully late, only this morning in these proceedings which take the matter somewhat further than it was before in terms of being ready for hearing.  There is one of the affidavits that we will ask your Honour to read that will support the short minutes of order that are being sought.  However, I should indicate I understand that the short minutes ‑ at least the adjournment application is not opposed by the respondent.

MR SMITH:   Your Honour, it is opposed.

HER HONOUR:   The adjournment is opposed?

MR SMITH:  Yes.

HER HONOUR:   My information as of Friday was wrong, was it?

MR SMITH:  Your Honour, as of Friday we were of the understanding that we were to get this morning an amended draft order nisi with sufficient particulars in that to know what case we were facing, apart from an assertion of Muin and Lie.  All we got this morning was three large affidavits at roughly 9.30, which is supposed to present some basis for, firstly, the application for an adjournment and, secondly, for the merits of the application.  It is on the basis that the evidence for the application for adjournment is insufficient to warrant the adjournment that the application is opposed.

HER HONOUR:   Very well.  Well, Mr Robinson, what ‑ I have not read any of these affidavits.

MR ROBINSON:   Indeed, your Honour.  As I am instructed, it was put to my learned friend’s instructor on 22nd ‑ ‑ ‑

HER HONOUR:   I must say I would not have listed this matter today had I known that it was in this state, but go on.

MR ROBINSON:   Your Honour, as was indicated last week, this matter is proposed to go forward on the basis of a direct application of the principles of Muin and Lie and the Court's decision in Miah’s Case and the misleading point from Aala’s Case as well, your Honour.  It comes within the same time periods.  The same legislation is applicable, that is, before the Migration Act was amended after the time period in both Muin and Lie and at a time when, for example, natural justice still applied.  There is no ouster clause issue in this case, as was explained to the respondent’s representatives.  It is a direct application of Muin and Lie.  That is how we intend to run the case, your Honour.  The short minutes make provision for making that clearer in any amended draft order nisi but, in my submission, as the affidavit of Mr Rassam Selliah, who is the migration agent of the prosecutor, dated 28 October 2002, affirmed on today’s date and filed this morning with the Registry, your Honour, in my submission, it is very clear ‑ ‑ ‑

HER HONOUR:   Well, I have not read it.

MR ROBINSON:   In support of the motion, I read that affidavit. 

HER HONOUR:   Well, I have not read it.  Do you want to read it out loud?

MR ROBINSON:   Yes, your Honour.

HER HONOUR:   Yes.  Or do you want me to read it?  I can take some time to read it but I have not ‑ I am simply not familiar with it at all.

MR ROBINSON:   I do not ask your Honour to read the annexures, only the body of the two pages of the affidavit.

HER HONOUR:   Very well, thank you.

MR SMITH:   Your Honour, I would object to paragraphs 10, 11 and 12.

HER HONOUR:   They are simply argumentative.  I received it all from the Bar table anyway.

MR SMITH:   It purports to put forward an expert opinion on those matters and some weight is to be relied on it.

MR ROBINSON:   I do not press it, your Honour.

HER HONOUR:   Very well, thank you.  They are not read.  Yes, I have read that, Mr Robinson.

MR ROBINSON:   The situation is this, your Honour:  we are waiting on the ‑ ‑ ‑

HER HONOUR:   You do not want all the Part B documents?

MR ROBINSON:   We do not have any of the Part B documents.  We do not have the CISNET database and we do not have the department’s file which ‑ ‑ ‑

HER HONOUR:   But you know what documents were referred to, I take it, in the original decision?

MR ROBINSON:   We have the adverse material, your Honour, from the Tribunal’s decision.

HER HONOUR:   I do not understand what is sought by order 1(b).  You want the documents themselves?

MR ROBINSON:   We do not have the documents referred to in the delegate’s decision, your Honour.

HER HONOUR:   But why should you get the documents themselves?

MR ROBINSON:   So, we can see whether they contain any favourable material, as we expect they do, your Honour.  This is the evidence that was before the delegate.

HER HONOUR:   Yes, very well.  I do not know what these Part B documents are but do you say that they are not accessible except through CISNET?  It seems to me implausible.

MR ROBINSON:   They are not available, your Honour.  They are Department of Foreign Affairs and Trade cables that have not been disclosed to my client, that have not been put to him on evidence that I have not taken your Honour to but I would ask your Honour to accept that as what we contend.

HER HONOUR:   You see, I have not seen any of these papers.  You are coming in with very, very late affidavits, Mr Robinson.

MR ROBINSON:   Indeed, your Honour.

HER HONOUR:   You know that I would normally have wanted to read all this material before I came into Court but I do not know when the material arrived.  The first time I saw it was after the matter was called.

MR ROBINSON:   The bulk of it arrived on Saturday, your Honour.

HER HONOUR:   On Saturday?

MR ROBINSON:   Yes.

HER HONOUR:   Here, in Court?

MR ROBINSON:   No, no, in my chambers, your Honour.

HER HONOUR:   Well, I was not there, naturally.  Now, I had understood that the matter was going to be adjourned today and by consent.

MR ROBINSON:   It was my understanding it would not be opposed and it would not be consented to by the respondent.  That has now changed.

HER HONOUR:   Well now, I will need further material as to these Part B documents.

MR ROBINSON:   Your Honour, I read the affidavit of the prosecutor, affirmed today and filed in Court today and as ‑ ‑ ‑

HER HONOUR:   Well, I do not even know who the prosecutor is.  It is very difficult.

MR ROBINSON:   The applicant/prosecutor is S194/2002.  That is all I am permitted to say.

HER HONOUR:   Well, of course.  Mr Smith, how do I identify this affidavit?  You see, this is the difficulty.  I mean, I blame the Act and I blame counsel.  Had I had an opportunity to read these documents, I might be able to find this affidavit now.  How do I find it now?

MR SMITH:   Your Honour, the only manner in which I can suggest is that it is an affidavit affirmed on 28 October, signed ‑ ‑ ‑

HER HONOUR:   I have three of those.

MR SMITH:   ‑ ‑ ‑ by the person of 34 Haig Street, Wentworthville, which annexes to it or exhibits to it ‑ ‑ ‑

HER HONOUR:   Very well, I have something that ‑ but, really, this is not satisfactory.  How can I read an affidavit sworn or affirmed by somebody whose name I cannot even know?  All right, what do you rely on, Mr Robinson?

MR ROBINSON:   I rely on an affidavit of the prosecutor, affirmed on 28 October 2002 and I tender the exhibit ‑ I probably should not name the exhibit note.  On the exhibit note is the prosecutor’s name, that is, it is exhibit note No 1, bearing also the initials of the prosecutor.  That is the RRT file, your Honour.  That is all, apart from documents that were delivered to the prosecutor in other proceedings which comprise part of the department’s file and the adverse material.  This is the extent of the material that has come to the prosecutor from the respondent.  The missing pieces, as I have indicated, are the department’s file and the evidence that was before the Minister’s delegate’s decision.

HER HONOUR:   But this still does not tell me what the Part B documents are.

MR ROBINSON:   I will show your Honour.  If your Honour would give me a moment.

HER HONOUR:   I have a great feeling everybody is wasting my time.  Let me ask a question.  I mean, I resent my time being wasted.  There are hundreds of these matters.  This matter has been taken in the list when others could have been dealt with.  As I said, there are hundreds.  Now, are you asking me to dismiss the application for an order nisi?

MR SMITH:   Yes, your Honour.

HER HONOUR:   Today?  Now, are you seriously asking me to do that or do you accept that there may be an arguable case?

MR SMITH:   Your Honour, I have not had time to assess, on the material served this morning, whether that ‑ ‑ ‑

HER HONOUR:   Well, then you should not be asking me to dismiss it if you have not had time to assess.  If you have not had time to assess, the sensible thing was to agree to an adjournment and not waste my time and everybody else’s time and the resources of the Court.  Is that not correct?

MR SMITH:   With respect, your Honour, I do not agree with that.

HER HONOUR:   You are quite happy to waste my time?

MR SMITH:   No, your Honour.  All my submissions is I am not the one wasting your Honour’s time.

HER HONOUR:   Tell me, do you move to have the order nisi rejected, even though you have not had time to study these materials?

MR SMITH:   Your Honour, the application before you currently ‑ ‑ ‑

HER HONOUR:   I am asking you if you are moving to have the order nisi dismissed, the application for an order nisi dismissed?

MR SMITH:   Yes, your Honour.

HER HONOUR:   Very well.  There is no arguable case, is that what you say?

MR SMITH:   On the material that has been served and which has yet, to date, been read, yes.

HER HONOUR:   Well now, what about the material that was filed today?  Do you say there is no arguable case?  I mean, this is not the Central Court of Petty Sessions.  We try to deal with matters on their merits here and in an efficient and timely manner.  Do you say that on the material filed today there is nothing that would - that the matter should be summarily dismissed; that the application for an order nisi should nonetheless still be dismissed?

MR SMITH:   As I have read it, yes, your Honour.

HER HONOUR:   All right then.  You say there is no Muin and Lie point at all in this?

MR SMITH:   Your Honour, there is no evidence of what the Tribunal did and did not consider.

HER HONOUR:   Very well.  Well, we will start then at the beginning.  Is there any means of obtaining that evidence?  Do I have to order discovery as a preliminary as occurred in Muin and Lie?  Do I start these proceedings by ordering discovery?

MR SMITH:   Your Honour, no, because the applicant does not seek that.  The applicant seeks, firstly ‑ ‑ ‑

HER HONOUR:   Which you oppose.

MR SMITH:   Yes, your Honour.

HER HONOUR:   On what grounds do you oppose it?

MR SMITH:   Your Honour, I oppose it because the matter has been set down for hearing today.

HER HONOUR:   The matter was never set down for hearing today.  It was set down to be called in the list.  It was never set down for hearing today.  At very best, it was an application for an order nisi, admittedly on grounds ‑ well, I will give you 48 hours to redraft your grounds, Mr Robinson, and we will deal with the matter then.  If you wish to apply for discovery then - your grounds are inadequate, are they not?  On any view, the papers are a mess.

MR ROBINSON:   They could be further particularised, your Honour.  They are not a mess, with respect.

HER HONOUR:   Well, what is the ground on which you seek orders nisi?

MR ROBINSON:   Denial of natural justice.

HER HONOUR:   Simply that?

MR ROBINSON:   Yes, your Honour.

HER HONOUR:   And what do you say the denial of natural justice was?

MR ROBINSON:   Your Honour, it is that ‑ ‑ ‑

HER HONOUR:   Mind you, I was given none of these papers, having been told on Friday that the matter was being in the list for adjournment by consent.  The draft order nisi I have, it starts:

The Tribunal committed a jurisdictional error . . . reached its decision based on an incorrect application of the relevant law to the facts of the matter.

. . . It erred in its interpretation of the law and also erred in the application of the law to the facts as found by it .

. . . applied a wrong and an incorrect subjective test . . .

erred in failing to consider and make a finding whether the prosecutor genuinely feared returning to Sri Lanka with his son.

MR ROBINSON:   It is particular 2, your Honour, at the bottom of the page, ground 2, “The decision of the Tribunal” ‑ ‑ ‑

HER HONOUR:   Yes.  Now, do you press all those grounds?  I was told you wanted to recast this and I can well understand why.  I would not grant an order nisi in these terms.

MR ROBINSON:    Your Honour, I am not relying on any ground today, other than ground 2.  If I was forced to run the case, I would rely on ground 2, that is the denial of natural justice, which is not sufficiently particularised in relevant respects.  I can say it now, your Honour:  the sole case as cast today is that adverse material identified by the prosecutor in his affidavit which is of the character of cables and country information was not put to the prosecutor at any stage up until the time of the delivery of the Tribunal’s decision.  That is the essence of it, your Honour:  material adverse to the prosecutor’s case was taken into account by the Tribunal.

HER HONOUR:   Can you show me where that occurred?

MR ROBINSON:   Yes, your Honour.  If I could hand up to your Honour in a more convenient form a copy of the Tribunal’s decision.  Your Honour will see, for example, at page 31 at about halfway down the page there is referred to there a number of CX documents that are referred to as DFAT cables.  Does your Honour see that?  Those cables are referred to in the affidavit of the prosecutor as cables that were never put to him, that he never saw, and the substance of those cables were not put to him and with the exception of perhaps one of those, your Honour, which he might have been able to see had he requested, those cables are country information cables that go against the argument that he raised at the Tribunal, namely that his son who was in particular risk of being arrested in Colombo ‑ and the applicant/prosecutor is a Tamil priest, a Hindu priest who is in Australia with his three children and his wife, all of whom are named applicants in the Tribunal decision. 

The Tribunal decision, if it was adverse, would have required the applicant to go back to Sri Lanka and into Colombo where the international airport is and the applicant’s case was, before the Tribunal, that in part his son would be exposed to being recruited by the Tamil Tigers in Colombo upon being returned to Colombo.

HER HONOUR:   They are not the documents you are seeking?

MR ROBINSON:   No, your Honour, I have those.  Your Honour asked my case.  That is the nutshell of my case.

HER HONOUR:   Yes, very well. 

MR ROBINSON:   There are other examples of Part B documents ‑ ‑ ‑

HER HONOUR:   Well, I do not need to hear you further.  Mr Smith, you wish me to dismiss the order nisi?

MR SMITH:   Yes, your Honour.

HER HONOUR:   Very well, I will hear you on that.

MR SMITH:   The only person who made any claim to fear persecution was not the applicant’s son but the applicant.  Mr Robinson puts forward the material that would have gone to his son in Colombo being arrested.

HER HONOUR:   His son was an applicant, was he?

MR SMITH:   Yes, your Honour.

HER HONOUR:   Very well.

MR SMITH:   Further, the case ‑ ‑ ‑

HER HONOUR:   The son was an applicant?

MR SMITH:   Yes, your Honour.

HER HONOUR:   Is the son an applicant now?

MR SMITH:   No, your Honour.  His interests would be affected by this decision but he is not an applicant in this Court.

HER HONOUR:   Well, it comes down to a question of what was the obligation of the Tribunal when all were applicants before it and when, if any one member of the family was owed protection visas, the others were, does it not?

MR SMITH:   Yes, but the case that Mr Robinson puts forward is that the fear of the father was that the son would be forcefully recruited by the LTTE in Jaffna and this material went to an arrest in Colombo.

HER HONOUR:   Well, should that not have been put to him, for the sake of natural justice?

MR SMITH:   The question of the material in ‑ ‑ ‑

HER HONOUR:   Yes.  The question is was that a live issue before the Tribunal raised it and were they given an opportunity to deal with that matter?

MR SMITH:   Your Honour, I have not read all the material in that and I cannot ‑ ‑ ‑

HER HONOUR:   No, you are opposing this.

MR SMITH:   Yes, your Honour.  My submission is this, that the fear put forward by the father in respect of his son was that he would be forcefully recruited in Jaffna.  That was the case ‑ ‑ ‑

HER HONOUR:   And then the Tribunal raises this question of relocation to Colombo.

MR SMITH:   No, your Honour.  The question of Colombo comes because they would have had to go back through Colombo because that is the only international airport in Sri Lanka if they were to go back. 

the Tribunal finds in respect of Jaffna and the Jaffna Peninsula that the applicant would have no fear of persecution there, or well‑founded fear of persecution, if he were to return, but he would have to return via Colombo.

HER HONOUR:   Why does the Tribunal say that if they return to Colombo now they are at no particular risk of being arrested in Colombo?  Was there ever an issue as to what might happen in Colombo?

MR SMITH:   There was an issue as to what would happen to the applicant in Colombo because he said that he had been arrested three times in Colombo.  That claim was disbelieved by the Tribunal.  There is no issue, as I understand it, that the son would be arrested in Colombo.

HER HONOUR:   Then why did the Tribunal raise it?

MR SMITH:   Because, your Honour, in order to get back to Jaffna ‑ ‑ ‑

HER HONOUR:   But the Tribunal having raised it, it became an issue, did it not?

MR ROBINSON:   It was an issue all along, your Honour, at the hearing as well.

MR SMITH:   The passage that I am thinking of is at page 31 in the first full paragraph.

HER HONOUR:   Yes.  That is where I am.

MR SMITH:   Five lines down: 

I accept that in order to return to Jaffna the Applicant will have to pass through Colombo ‑ ‑ ‑

HER HONOUR:   Then he says the only persons:

at particular risk of being arrested in Colombo are young Tamils recently arrived from the North or the East.

MR SMITH:   He is from the north, your Honour, Jaffna.

HER HONOUR:   Yes:

recently arrived from the North or the East.

Then the Tribunal says:

since neither he nor his 13 year old son will have recently arrived from the North –

they will not be in any “particular risk”.  That is based on these cables it seems.

MR SMITH:   The issue being raised by the Tribunal is answered immediately by the fact that the on the facts of this case those cables are irrelevant because they relate only to recently arrived Tamils from the north or the east.

HER HONOUR:   That does not help your argument.  If they are irrelevant ‑ ‑ ‑

MR SMITH:   In other words, when I say “irrelevant”, I mean not adverse.

HER HONOUR:   There may be some ambiguity ‑ ‑ ‑

MR ROBINSON:   I can take your Honour to the cables.

HER HONOUR:   ‑ ‑ ‑ but it seems to be that they constitute the class that are at risk.  Is that not right?

MR SMITH:   The cables say that.

HER HONOUR:   Well, it seems to me that that is what the Tribunal is saying:  they constitute the class that is at risk in Colombo.  Am I wrong in that?

MR SMITH:   No, your Honour.

HER HONOUR:   And that statement comes from those cables.

MR SMITH:   This statement comes from the cables.

HER HONOUR:   Yes, very well.  You say that it is not arguable that there was a denial of natural justice in this case in not putting the cables or the substance of the cables to the prosecutor?

MR SMITH:   That is my submission, your Honour.

HER HONOUR:   Thank you.  I reject the application that I dismiss the application for an order nisi today.  It seems to me that there is material there which certainly warrants further consideration before anyone dismisses the application.  That is not to say that I have granted it.

MR ROBINSON:   No, indeed, your Honour.  I should add that the adverse material that I have referred to there is before the Court.  I have not taken your Honour to it.  It does say that young Tamils from the north are at risk in Colombo.  Significantly, your Honour, it says a lot more and had the applicant been aware of it, he could have dealt with it and that is not only in the prosecutor’s affidavit, it is self‑evident from the adverse material itself.

HER HONOUR:   Well, do not get excited because I have to study these papers before I can make any sensible analysis of it.

MR ROBINSON:   I appreciate that, your Honour.  If it is of any assistance, your Honour ‑ ‑ ‑

HER HONOUR:   Nobody has been of assistance so far.

MR ROBINSON:   ‑ ‑ ‑ I call for the documents that are set out in the short minutes of order, that is, the department’s file and the Part B documents, if they are present in Court.  I call for the prosecutor’s file from the second respondent’s department.

MR SMITH:   Those documents are not in Court, your Honour.  If that call may be delayed, then I will deal with it.

HER HONOUR:   I do not know what is the point of delay or not because I have received no assistance from you, Mr Smith, in this matter.  What I am prepared to do is I am prepared to adjourn it for 48 hours to enable a redrafting of the order nisi to reflect arguable grounds, that is to say, there is no point in putting in the AD(JR) grounds.  There seem to be AD(JR) grounds in that notice of motion.

MR ROBINSON:   The only one we are relying on, as I have indicated to your Honour ‑ ‑ ‑

HER HONOUR:   I know the only one you are relying on.

MR ROBINSON:   The only one we are relying on is the natural justice matter which is badly particularised.

HER HONOUR:   Very well, but it is not going to do you any harm to file an amended notice of motion ‑ ‑ ‑

MR ROBINSON:   No, indeed, your Honour.  We want to do it, your Honour.

HER HONOUR:   ‑ ‑ ‑ which deletes those grounds upon which you do not rely.  Now, you have 48 hours to do that.  Is there going to be a difficulty about these documents or not?  I do not know what they are.  I am going to have to go through the papers to find out.  Is there going to be a difficulty about those documents, Mr Smith?

MR SMITH:   The only difficulty will be the time in which they can be produced, your Honour.

HER HONOUR:   Very well.  Is seven days sufficient?

MR SMITH:   I cannot answer that categorically.

HER HONOUR:   Mr Smith, why have you come here today?  Just to make my day a misery?

MR SMITH:   Your Honour, my instructions are that we do not know whether, within seven days, that can be done.

HER HONOUR:   Well, when do you believe it can be done?

MR SMITH:   I believe that within 14 days it can be done.

HER HONOUR:   Do I take it that you two gentlemen know what the documents are?

MR SMITH:   Well, no, I do not, your Honour.

MR ROBINSON:   It is the Minister’s file, your Honour.

HER HONOUR:   No, because I do not know what they are.  That is my difficulty.  I can list the matter a week from today to see if there are difficulties about this.  By that stage you should have filed an amended order nisi.  I can list it on the 4th.

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

HER HONOUR:   I am not making an order for the production but to see if there are difficulties at that stage.  Now, if there are difficulties, then, I suppose, one will have to give consideration to discovery.

MR ROBINSON:   Yes, your Honour.

HER HONOUR:   I presume you do not want that?

MR SMITH:   No, your Honour.

HER HONOUR:   Now, what is the position of the applicant and his family ‑ the prosecutor and his family at this stage?

MR ROBINSON:   Your Honour, he is in Australia.  He has a bridging visa.  We do not require an undertaking not to deport him or his family at this stage.  He is not permitted to work and his family is not permitted to earn an income.  On my instructions, that is correct.  We are content for the matter to go over to the 4th on the basis your Honour has indicated. 

HER HONOUR:   Yes.  Well, on that day I will consider further the making of an order nisi.  So, if you have anything further on that issue there should be written submissions.

MR ROBINSON:   Yes, your Honour.  Would your Honour certify for ‑ ‑ ‑

HER HONOUR:   Not later than 4.30 pm on Thursday for Mr Robinson and 2.30 for Mr Smith.  I do not want to arrive in Court next Monday ‑ ‑ ‑

MR SMITH:   2.30 the following day, your Honour?

HER HONOUR:   Yes, Friday ‑ and find a heap of documents which I have not had an opportunity to consider.  Mr Robinson, you might give consideration to some submissions indicating where I can find the various issues upon which you rely.

MR ROBINSON:   Yes, your Honour.  I would only ask that your Honour certify for counsel today.  Can I be heard on that, your Honour?

HER HONOUR:   I will reserve on the question of costs.

MR ROBINSON:   I have not asked for costs at this stage, your Honour.

HER HONOUR:   No, you want me to certify for counsel.

MR ROBINSON:   Yes, your Honour.

HER HONOUR:   Who told the Registry that this was going to be a matter that was going over?

MR SMITH:   Your Honour, I told the Registry that there would be an application for adjournment and that was not going to be opposed nor consented to by the respondent.  But ‑ ‑ ‑

HER HONOUR:    ‑ ‑ ‑ in the end it was opposed?

MR SMITH:   But, your Honour, at the time - it was opposed, yes, your Honour.  At the time we understood that ‑ ‑ ‑

HER HONOUR:   Opposed in circumstances in which you had not had regard to the material that had been filed?

MR SMITH:   Had not had total regard to it, no, your Honour.

HER HONOUR:   I do not regard that as responsible, I must say.  When did you get the material?

MR SMITH:   Between 9.25 and 9.30 this morning.

HER HONOUR:   At the very least, you might have consented to some adjournment until you could have read the material; until we all could have read the material.  How much time has been taken up on this matter this morning?

MR SMITH:   About half an hour.

MR ROBINSON:   Forty-five minutes.

HER HONOUR:   Yes.  Well, I do not know about your half hours but mine are valuable.  A lot of time would have been saved if we had been able to read that material which still remains to be done; it still remains to be considered.  Nothing I have heard today seems to me to be very likely to be helpful in the reading of it or considering of it.  Now, what do you want to say about certifying for counsel, Mr Robinson?

MR ROBINSON:   Your Honour, in my submission, it is clear from the affidavit that your Honour did read that the applicant has only recently caused counsel to be briefed.  In part - I withdraw that.  Your Honour, in my submission, the applicant who is not represented by a solicitor in these proceedings is well‑served by having a counsel ensure that the proceedings are focused on the central issue and, as your Honour will see, the order nisi is now only going ahead on one major ground, that is a denial of natural justice.  That is an efficiency with which the Court will ultimately, in my submission, appreciate when the matter is run on one single point alone or two single points related to natural justice.  In my submission, that assistance to the Court indicates ‑ and in matters involving a difficult and ever‑changing Act, the Migration Act 1958, the Court is assisted by counsel in these matters and I ask that your Honour certify for counsel in this particular case for today.

HER HONOUR:    Now, what do you say about today’s costs?

MR ROBINSON:   Your Honour, the respondent is not yet a party.  I do not make any application in relation to costs.

HER HONOUR:   Do you wish to say anything about costs, Mr Smith?

MR SMITH:   Yes, your Honour.  The application is that costs of today be paid by the prosecutor.

HER HONOUR:   I will certify for counsel.  There will be no order as to the costs of today’s proceedings. 

MR ROBINSON:   If the Court pleases.

HER HONOUR:   I trust when the matter is returned, counsel will have sorted out what is going on and that one does not have to spend one’s time as one did today.  I will adjourn now until 9.30 am on 4 November in Sydney.

AT 11.02 AM THE MATTER WAS ADJOURNED
UNTIL MONDAY, 4 NOVEMBER 2002