Application for order of review Bhajan Singh ex parte Minister for Immigration and Ethnic Affairs
[1981] FCA 289
•24 Mar 1981
THE FEDERAL COURT OF AUSTRALIA
General Division
APPLICATION FOR ORDER OF REVIEW
BHAJAN SINGH
ex parte MIKISTER FOR IMMIGRATION
ATJD ETHNIC AFFAIRS
C.A. SWEENEY J
TRANSCRIPT OF PROCEEDINGS
| AT MELBOURNE ON TUESDAY, 24 MARCH 1981, AT 3.08 PM | . |
| Copyright in the Commonwealth Government | |
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| MR P: ROSE: | I appear on behalf of the applicant in this |
| 1 | , | matter. | If I can fill'you in on the history |
| of this matter, Mr Singh came to Australia | in 1978 |
on a visitor's permit, as I understand it. He was
1 in Australia, overstayed his permit, was arrested, an order was made for his deportation and he was eventually deported on,I believe, 28 Nove~ttber 1979. On our instructions, he then was deported to
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| to New Guinea and was back in Australia in December of 1979. |
| HIS HONOUR: | Is this all in some affidavit, Mr Rose? |
| MR ROSE: | Yes, some of it is set out in the affidavit of my |
instructing solicitor, Colin James Gibson.
| HIS HONOUR: | I think it might help me to see what is in evidence, | I |
rather than tahave a verbal picture, some of which is
in evidence and some of which is not.
MR ROSE: All of what I have just said went into evidence in
that I made an application for an order nisi
to show cause for a writ of habeas corpus on Friday
in the Supreme Court before his Honour Mr Justice
Ander son.
| HIS HONOUR: | But what is in evidence in the Supreme Court is |
not in evidence here.
MR ROSE: No. I thought I should give you this history
because otherwise I am going to have to at some stage vacate that Susrei-iie Court proceedings. for proceedings that go on here.
| HIS HONOUR: | I am glad of your help, Mr Rose, but it will help |
me if I see what I have before me in the way of
evidence at the present time.
MR ROSE: Yes. At the moment you only hsve ihe affidavit of
Colin James Gibson.
HIS HONOUR: Yes, I have read that affidavit. What is the
relevant section or what are the relevant sections
of the act?
| MR ROSE: | It is under section 5 of the Administrative Decisions |
Judicial Review Act.
| EIS HONOUR: Of 1977? | I |
| l | |
| MR ROSE: Yes. | I |
| HIS HONOUR: And your client is a person aggrieved by a |
deision to which this act applies, is he?
| singh 24.3.81 | MR ROSE |
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MR ROSE: Yes.
HIS HONOUR: Where does it appear that is a decision to which
this act applies?
i4R RGSE: I believe, your Honour, there are a number. It applies to a11 federal acts except certain that &re specified as classes which are not decisionable
| in the act. | This appears to be a decision under |
the Migration Act and it is not one of the acts
that is excluded.
| HIS HONOUR: | Schedule 1 apparently contains classes of |
decisions that are not decisions to which this
act applies.
MR ROSE: Yes, your Honour.
HIS HONOUR: You say that this decision is not in schedule l?
MR ROSE: Yes, your Honour.
HIS HONOUR: And I see there is a definition in section 3 of
decisions to which this act applies.
MR ROSE: Yes.
HIS HONOUR: What are the grounds upon which your client
bases his application? I am looking at section 5(1),
those that are applicable. That sub-section (a)
applies, that is breach of natural justice. Where
does that appear? Where is there in that affidavit
some indication that your client has suffered
a breach of the rules of natural justice?
| MR ROSE: | I do not believe it appears in the affidavit and | |
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HIS HONOUR: When did the Supreme Court make the order nisi
that you referred to?
MR ROSE: On Friday.
HIS HONOUR: Last Friday?
MR ROSE: Yes.
HIS HONOUR: When is that returnable?
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| MR ROSE: Tomorrow. | I |
| HIS HONOUR: So your client is protected until 10.30 tomorrow, |
is he, by virtue of the Supreme Court Order?
| MR ROSE: Yes. | l |
| HIS HONOUR: What do you apprehend might be the position |
after 10.30 tomorrow?
| MR ROSE: | I think, your Honour, I will be in a position where |
I will have to ask his Honour to vacate his order and therefore the situation will be, if his Honour followed that course, that the deportation would
stand, that our client would face immediate
deportation.
HIS HONOUR: Yes. The proceedings in the Supreme Court, am I
right in thinking have been served at this stage
on the Minister for Immigration and Ethnic Affairs?
| MR ROSE: | Yes, they have. | 1 |
| HIS HONOUR: | So that, as far as he and his advisors are |
aware, they have to be prepared tomorrow morning
to deal with the habeas corpus proceedings in
the Supreme Court?
| MR ROSE: | Yes, your Honour, I understand Mr Griffith for counsel had been briefed. He had rung me and |
| I was not about when he rang and wI-.en I | rang |
him back he was absent and so I have rung-and
| informed the Ceputy Cro~an | Solicitor's office that |
I would be seeking to make this application this afternoon and spoke to his instructor and indicated that, if these prcceedings wers successful, I would be seeking tomorrow to vacate
| the order. | I did not want to leave them in the |
dark as to what exactly we are doing, so we
have rung and told them.
HIS HONOUR: In which list in the Supreme Court is your matter
tomorrow?
MR ROSE: In the practice court.
| HIS HONOUR: | It would ordinarily take its place after |
unopposed business I presume?
MR ROSE: Yes, your Honour, except that it concerns a
habeas corpus and some judges do seem to give them
| the | pxiority . |
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HIS HONOUR: You will be safe at least until 10.30 and sometime
thereafter. Thc rezson for my questioning you is
to wonder why it would not be possible to direct
that there be short service of your present
application for this interim relief and list
the matter in this court at l0 o'clock tomorrow
morning, when there would be representation on the
part of both parties, rather than have the situation
that you have got one proceeding in the Supreme
Court which has been served on the Minister,
and you have another proceeding ex parte in this
court which has not been served. It is not exactly
a tidy state of affairs.
MR ROSE: Yes, your Honour. It was only the urgency of the
situation, that it was only by a phone call and the
fact that - - -
HIS HONOUR: How does it become urgent when you had the
opportunity, apparently, of preparing an order nisi
for habeas corpus returnable last Friday?
MR ROSE: On Friday we got a phone call in the.morning to
indicate that the man was being deported that
| afternoon at 5.30. | The situation was that I |
arrived back from court at lunchtime and was advised
of that and I went straight to the practice court
to get that order and the order was made. The man
had at that stage been granted assistance from
the Australian Legal Aid office and they indicated
'tomy instructing solicitor that they were not
prepared to grant any further aid until they had
received advice from me on the Monday in relation
to the matter as to the situation in the Supreme
Court and as to whether or not we could proceed
| in the Federal Court. | I gave that advice, which |
| they received. |
They then rang my instructing solicitor this
morning to say that aid was not granted in
relation to the proceedings but, nevertheless,
my instructor had some contact with the
Australian Indian Association for himself and got
some aid, which came about just this morning at around
| ekeyen | and that was when .I drew the application |
and my instructor drew the affidavit.
HIS HONOUR: I understand that. Do you see any problem for
your client in the matter being heard tomorrow
morning at ten?
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MR ROSE: No, your Honour.
HIS HONOUR: Do you want to address any argument to me to the
contrary?
MR ROSE: No, your Honour. It is obviously more desirable for
the other side to be heard.
HIS HONOUR: Yes. What I will do, then, is direct that the
application herein and the affidavit of Colin James Gibson, with copies of the exhibits thereto, be served immediately, which of course means this afternoon.
or more precisely a copy of the affidavit of
MR ROSE: Yes, your Honour.
HIS HONOUR: Upon the - what is the appropriate description? The Deputy Crown Solicitorfor the Commonwealth of Australia?
MR ROSE: Yes.
HIS HONOUR: On the Deputy Crown Solicitor for the Commonwealth
of Australia, together with notice that I have
today ordered that the application be listed
for hearing in the number 3 court of the Federal
Court of Australia, 450 Little Bourke Street, at
| l0 am on 25 March 1981. | Is there any other |
| position we should make? |
MR ROSE: Yes, your Honour. In relation to that notification,
can that be an oral notificabion? My instructor is at Footscray and by the tirrehe returned there - - -
HIS HONOUR: Together with oral notice. I do not need to
go into the detail, but that oral notice would of matter.
course be given to the gentleman in the Deputy
MR ROSE: Yes, we have been in contact with him. It is
Mr Stephen Lucas.
| HIS HONOUR: | I will say, "together with oral notice to |
Mr Stephen Lucas of that office".
| MR ROSE: | I would ask your Honour also to reserve costs. |
HIS HONOUR: Yes, costs are reserved. Do you think it is
possible that between now and tomorrow morning
you might want to file some further affidavit?
MR ROSE: I think so, your Honour. Looking at the grounds
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they certainly have not been specified and I would
seek to have my instructor swear a supplementary
affidavit, but we will serve that also.
HIS HONOUR: Looking at your application, your application does
not seem to set out any of the grounds that are
listed in section 5 of the act, does it?
MR ROSE: No, not specifically.
HIS HONOUR: Well, you might therefore think it wise to.
| What I will do is direct that any | application |
for leave to amend the application herein be served
on the Deputy Crown Solicitor as soon as possible
and oral notice of the intention to do so be
given immediately to Mr Stephen Lucas, so that the
Minister's advisors will be aware that you have
in mind to seek leave to amend your application and
I will also direct that any further affidavits
to be relied upon by the applicant be served on the not think I can be more precise than that, Mr Rose.
MR ROSE: No, your Honour.
| HIS HONOUR: | Is there nothing else you want to mention? |
MR ROSE: No, your Honour.
| HIS HONOUR: Very well, the court | will adjourn. |
| AT 3.30 PM THE MATTER WAS ADJOURNED UNTIL WEDNESDAY, 25 MARCH 1981 | |
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