Bedane, Ex parte - Re Minister for Immigration

[2000] HCATrans 48

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B4 of 2000

In the matter of –

An application for Writs of Prohibition, Mandamus, Certiorari and Injunctions again the MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

Ex parte –

GUTA MOTUMA BEDANE

Prosecutor

CALLINAN J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON THURSDAY, 24 FEBRUARY 2000, AT 10.57 AM

Copyright in the High Court of Australia

MR K. SMITH:   I appear for the applicant.  (instructed by the South Brisbane Immigration & Community Legal Service Inc.)

MS C.E. HOLMES, SC:   I appear for the respondent, may it please your Honour.  (instructed by the Australian Government Solicitor)

MR SMITH:   Your Honour, my instructions to appear this morning are quite narrow and they relate mainly to seeking directions from your Honour.  The applicant seeks an adjournment of this application for a number of reasons.  If I can just explain to your Honour the background.  The decision being reviewed is one of the Refugee Review Tribunal which was made on 12 August last year.  The applicant made submissions to the Minister and those submissions were dated the following month; sorry, for the Minister to exercise his discretion to grant the visa, the protection visa.  That was refused. 

HIS HONOUR:   The application under section 417, is it?

MR SMITH:   Yes, your Honour.  That was refused.  My instructing firm was quite concerned that the Department might want to deport the applicant before he has a chance to pursue his legal rights further and to that end an order nisi was filed in this Court, I believe, on about 24 December or early January, and the advice which was given to my firm at the time was to file the material, then amend the grounds later once you work out the best grounds to make the order. 

The difficulty was at the time the Community Legal Centre was of the view that these proceedings would be conducted the same way it is in the Federal Court where there is a directions hearing and an appeal book put together, and the transcript is obtained.  The Community Legal Centre was only aware on Tuesday this week that the hearing today would not be a directions hearing and to date the transcript has not been obtained.

HIS HONOUR:   Well, you are just not ready, is that the position, Mr Smith?  You could not argue it today?

MR SMITH:   No, I could not, your Honour, no.

HIS HONOUR:   And that arises from a misunderstanding about the nature of prerogative writ proceedings in the High Court, is that right?

MR SMITH:   Yes, your Honour.

HIS HONOUR:   Well, what is your view about the matter?

MS HOLMES:   The application is opposed, your Honour, principally because it would appear not to have any substance.  It is not likely that it can be improved by an adjournment.  If I can explain that.  It seems that the decision complained of is solely that of the Refugee Review Tribunal as opposed to the Minister.  The ground mounted in the affidavit is - - -

HIS HONOUR:   Wednesbury unreasonableness.

MS HOLMES:   Yes, that is right.  And it is said then that particulars of that ground are really to be found in the submission to the Minister, which is quite extensive and detailed, but when one examines it the complaints are of wrong findings of fact, inferences illogically drawn.  There is no unreasonableness basis set out at all.

HIS HONOUR:   There were strong findings of credibility made against the applicant by the Tribunal, I noticed.

MS HOLMES:   Yes, that is true.

HIS HONOUR:   Mr Smith, as I understand it, hopes to be able to reformulate, I think, the grounds, or perhaps to formulate some further grounds.  It may be very difficult to do but I think that is what they would like to do if they can. 

MS HOLMES:   It is said that the transcript is needed but the point about that is that the applicant has been in possession of the tapes so that anything that would emerge from that must be known to him.

HIS HONOUR:   How long did the hearing take, do you know, before the ‑ ‑ ‑

MS HOLMES:   I had not really taken much notice of how long it took.  I would not have thought it would be more than a day, just from my recollection of the substance.

HIS HONOUR:   There were further contacts, of course, with Mr Bedane.

MS HOLMES:   Yes.  I had prepared some submissions for a substantive argument.  I do not know if it would assist your Honour to look at those because I make those points about it simply not being a Wednesbury unreasonableness case in them.  Perhaps if I could hand them up.  The cases referred to are attached, but they - - -

HIS HONOUR:   It is always a very difficult ground to make out.

MS HOLMES:   Yes.  I do not think there are any novel authorities in there that would surprise your Honour.

HIS HONOUR:   No.  I must say that responsibility hangs very heavily, in these immigration cases, over us because of the limited role of the Federal Court and also because the consequences can be so serious for an applicant if the Tribunal has got it wrong.  I am inclined to give them an adjournment but I would want perhaps to impose some conditions about getting the matter in order very quickly.

MS HOLMES:   Your Honour, in relation to the consequences, can I just say that if the case had any strength, the application would not be opposed but it does have a look of putting off the evil day.  That is as much as I can say about that.

HIS HONOUR:   Well, that is, in effect, what the Tribunal found and I suppose that is one of the issues because I see Ms Smidt actually expressed a great deal of scepticism about the belated nature of the application for a refugee visa anyway or of the status.  I appreciate the force of what you say, Ms Holmes, but I am very much inclined to grant an adjournment but I would want to put the applicant on some fairly strict terms.

MS HOLMES:   Yes.  I would ask for two things, your Honour.  One is a direction about times for filing the further affidavit with transcript.  But, also, I have worked on the particulars set out in that letter to the Minister.  I would ask that if the application is to be amended, particulars be provided because it would not be - - -

HIS HONOUR:   Yes, I would certainly insist upon that and I would want a very clear indication whether any further grounds intend to be sought to be mounted, anyway, in the application.  But why should the transcript be included anyway?  I thought there was some authority in this Court that took the view that the record was very narrow when one is looking for error on the face of the record.  This may go more widely than that, of course, a Wednesbury unreasonableness case.

MS HOLMES:   I can only guess at what it might be hoped would emerge from the transcript, your Honour, so that I do not know that I am in a position - - -

HIS HONOUR:   It is not a very attractive prospect for us or for this Court to be trawling through the transcript unless, perhaps, to show that a finding was made for which there was absolutely no evidence and I do not think that is possible.

MS HOLMES:   No, and to date that certainly has not been the assertion.  I really cannot assist your Honour on that.  I do not know what is hoped will emerge.

HIS HONOUR:   No, I know you cannot.  All right, well, you have heard, Mr Smith, what my inclination is, which is to grant you an adjournment but I would do so, I think, upon very strict conditions. 

I would make an order, for example, that you inform the other side in writing within 14 days from today in precise terms of any further ground or grounds which you would seek to add to the application for an order nisi and, further, that you provide precise particulars of each and every ground, identifying the evidence upon which you rely in support of any ground.

Is there anything else, do you think, Ms Holmes?

MS HOLMES:   Well, the application has not been made but I can say that the respondent will give an undertaking not to deport without 7 days notice.  That is as far as I can put it.

HIS HONOUR:   Yes, I was going to ask you about that.  Perhaps 14 days in view of my giving them 14 days within which to comply.

MS HOLMES:   I have only instructions for an undertaking in relation to 7 days notice, your Honour, and it is not contemplated that he only has 7 days.

HIS HONOUR:   Well, I suppose he can come back to the Court, if you do give a notice.

MS HOLMES:   Yes.  Quite often in these cases it is 3 days notice in fact, but 7 days would seem ample for him to react if it is proposed.

HIS HONOUR:   All right.  Well, you heard that the Commonwealth is prepared to give an undertaking.  Is there anything further?

MR SMITH:   The only issue which I really have, your Honour, is that the proposition I made would not be – because I have not seen the transcript yet, but when it is provided, not so much to exhibit the whole transcript but it is more of a question of comparing comments in the judgment to what was said during the hearing and that is going to require an examination of the transcript.

HIS HONOUR:   You are going to have to persuade the Court, first, that that should be done, I might say.

MR SMITH:   Yes, your Honour.  I am not saying an examination by the Court, I am saying an examination by the applicant’s representatives and we do not have the transcript to date, and it is proposed that the - - -

HIS HONOUR:   But that sounds to me, I might say – I am not prejudging you, but that sounds to me rather like an argument about weight to be attached to evidence rather than whether findings were so unreasonable on the evidence that no reasonable tribunal could have made them.  You understand the distinction between the weight to be attached to evidence and whether there is evidence or not?

MR SMITH:   I do, your Honour.  The only point I am really trying to make is that with the 14 days, it is hoped that we would have the transcript for at least 7 days before we would have to provide the particulars to the respondent.

HIS HONOUR:   I am not prepared to give you any more than 14 days because there are very many of these cases pending in the High Court.  The Court is anxious to deal with them promptly.  It is obvious that it is desirable that immigration matters be dealt with quickly and apparently you have had the tapes for some considerable time.  Is that right?

MR SMITH:   Yes, your Honour.

HIS HONOUR:   Well, you might just have to listen to the tapes, that is all, rather than get a transcript of them.

MR SMITH:   Yes, your Honour.  As your Honour pleases.

HIS HONOUR:   It is clear, the order that I made, is it not, that you understand that a very high degree of precision is expected?

MR SMITH:   Yes, your Honour.

HIS HONOUR:   Also, when I refer to the possibility of further grounds, you will need the leave of the Court, of course, to rely upon them and I am not making any prediction whether you will get that leave or not.  But obviously, you should give notice to the other side of any further grounds if you want to argue them, if the Court is minded to give you leave to raise them.

MR SMITH:   Yes, your Honour.

MS HOLMES:   Your Honour, I am just wondering whether a time could be set for any further affidavits, if it does become the case that an affidavit is filed, so that – I cannot imagine that the respondent would want to file

anything, but at least with the filing of this affidavit annexing transcripts, so that it then is ready for a hearing.

HIS HONOUR:   I have not really made any order about filing an affidavit, but I should order that any further affidavit that the applicant wishes to file be filed within 14 days.

MS HOLMES:   If it is a matter of obtaining transcripts, your Honour, I would have to concede that that may simply not be physically possible and I would have no difficulty with, say, 21 days, your Honour.

HIS HONOUR:   All right.  Any further affidavits that the applicant wishes to file should be filed within 21 days.  But that does not relieve you of the obligation of providing the particulars and notice of any further grounds to the respondent.

MR SMITH:   Yes, your Honour.

HIS HONOUR:   I will make an order that you file any further affidavits within 21 days from today. 

I will not make any order in respect of your affidavit.  If you want to file something further, you will no doubt do it diligently.

MS HOLMES:   Yes.  I could envisage if bits of transcript were filed, there might be an issue, that is all.  Thank you, your Honour.

HIS HONOUR:   Is there anything further then?

MR SMITH:   No, your Honour.

HIS HONOUR:   I should order that the matter be adjourned to be brought on again on 5 days notice.

MS HOLMES:   Thank you, your Honour.

HIS HONOUR:   There is nothing further in this matter?

MR SMITH:   No, your Honour.

HIS HONOUR:   You do not need a certification for counsel, do you?  No, I think that was in the Court of Disputed Returns where I was sitting earlier.

MS HOLMES:   It is news to me, the concept, your Honour, so I assume I do not.

HIS HONOUR:   I do not think you do.

All right.  Close the Court.

AT 11.12 AM THE MATTER WAS CONCLUDED