Callover, Melbourne
[2004] HCATrans 35
[2004] HCATrans 035
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Melbourne
CALLOVER OF 59 IMMIGRATION
MATTERS
HAYNE J
(In Chambers)
TRANSCRIPT OF PROCEEDINGS
AT MELBOURNE ON THURSDAY, 26 FEBRUARY 2004, AT 9.34 AM
Copyright in the High Court of Australia
HIS HONOUR: Before I call any of the cases I want to indicate the course that I will follow this morning. Consistent with what has been done previously, unless cause is shown to the contrary, I propose this morning to order that the migration proceedings now pending in the Court which were initiated after the coming into operation of the privative clause provisions of Part 8 of the Migration Act are remitted to the Federal Court. To the extent to which the remitted proceeding alleges jurisdictional error, the Federal Court will have jurisdiction to hear and determine that proceeding and orders of remitter made today would therefore merely decide which court would consider the applicant’s case. If an order is made remitting the case to the Federal Court, it will be for that court to decide what is to be done.
Now, as you came into the Court you will have seen a notice asking applicants and interpreters to go to the counter. That is so that applicants can tell us which case you are in, whether you have anybody here to speak for you and whether you need an interpreter. If you have not yet given those details to the staff at the counter, could you please do that now.
I will deal first with those cases where we believe that the parties agree about the orders that are to be made. When I have dealt with those, I will deal with cases in which both parties have lawyers appearing. I will then deal with the rest of the cases in the order in which they are listed, which is the order in which they were started.
In those cases where the Refugee Review Tribunal, the Migration Review Tribunal or a member of one of those Tribunals is named as a party, the Registrar has certified that the Tribunal has indicated in each case that it will abide by any order of the Court save as to costs.
At 9.38 am Re Minister for Immigration and Multicultural Affairs and Another; Ex parte Sommanader and Others was called.
MR J.G. SINGH: May it please the Court, I appear for the applicant. (instructed by Ravi James)
MR C.G. FAIRFIELD: May it please the Court, I appear for the Minister. (instructed by Australian Government Solicitor)
HIS HONOUR: Now, I understand there is a consent arrived at. We now have a new version of the consent order, have we?
MR FAIRFIELD: Yes, your Honour.
MR SINGH: Yes, your Honour.
HIS HONOUR: Thank you. There is thought to be something left in the case, is there, if we take out the section 417 issue?
MR FAIRFIELD: That is correct, your Honour, yes.
HIS HONOUR: What is left that has to be dealt with in this Court?
MR FAIRFIELD: Your Honour remitted to the Federal Court that part of the matter that could be dealt with under the old Part 8 of the Migration Act and your Honour made an order nisi.
HIS HONOUR: Yes.
MR FAIRFIELD: The part that is left in this Court concerns paragraph 2 of the order, which relates to the natural justice ground.
HIS HONOUR: Well, I will make orders in these terms. Can I tell the parties that they will be expected, when the matter is next listed, to be able to tell me what exactly is left in the case, whether it has to be dealt with in this Court, and then we will consider how it is to proceed. For the moment, however, there will be orders in the terms of the proposed minutes of consent order dated 25 February 2004, which will remain on the file.
At 9.40 am Re Minister for Immigration and Multicultural Affairs and Another; Ex parte Vedamanikkam was called.
MR J.G. SINGH: May it please the Court, I appear for the applicant. (instructed by Ravi James)
MR C.G. FAIRFIELD: May it please the Court, I appear for the Minister. (instructed by Australian Government Solicitor)
HIS HONOUR: Where are we up to there?
MR FAIRFIELD: We have proposed minutes of consent order duly signed to hand up to your Honour.
HIS HONOUR: Yes. Can I see those? Is the position generally the same as in the previous matter?
MR FAIRFIELD: It is, your Honour, yes.
HIS HONOUR: Then the same comments apply. There will be orders in terms of the proposed minutes of consent order dated 25 February 2004. Those minutes will remain on the file.
At 9.41 am Re Minister for Immigration and Multicultural and Indigenous Affairs and Another; Ex parte Applicant M18/2003 was called.
MS S.J. SHEPPARD: May it please the Court, I appear for the Minister. (instructed by Clayton Utz)
HIS HONOUR: Do we know of any appearance for the applicant?
MS SHEPPARD: Yes, your Honour. Consent orders were signed yesterday and were sent up to the Court, but I think too late…..
HIS HONOUR: I think we got the faxed version, not the signed version, did we not?
MS SHEPPARD: The signed version was, in fact, delivered up to the Court yesterday, your Honour, but it was very late.
HIS HONOUR: Yes. The consent then is to an order for remitter?
MS SHEPPARD: Yes, your Honour.
HIS HONOUR: There will be orders for remitter, Ms Sheppard, not quite in the terms of the consent.
MS SHEPPARD: Yes, your Honour.
HIS HONOUR: The proposed order for remitter that we are adopting is a copy, I think, that you may have available to you where it will be for the Minister – you are about to be given a copy I think – to do the requisite copying of papers and lodging of materials. Now, I know that is a departure from the ordinary course. It is a departure that was followed in the Sydney callover. It is one that we would propose to adopt, unless you can persuade me to the contrary.
MS SHEPPARD: No. Your Honour, I think, with respect, it is identical to the procedure your Honour adopted this time last year.
HIS HONOUR: Yes, it is. Well, there will be orders in terms of the standard consent order. It is unnecessary to certify in that matter.
At 9.44 am Re Minister for Immigration and Multicultural and Indigenous Affairs and Another; Ex parte Applicants M24/2003 was called.
APPLICANTS M24/2003 appeared in person.
MR C.G. FAIRFIELD: May it please the Court, I appear for the Minister. (instructed by Blake Dawson Waldron)
HIS HONOUR: I think the consent we had was signed by only one applicant.
MR FAIRFIELD: Your Honour, I have just been handed a copy of a signed consent order signed by all parties, it would appear. I hand that up to your Honour.
HIS HONOUR: Yes, thank you. Then in matter M24/2003, again I will make orders in terms of the standard form of order where the Minister has the responsibility for copying of documents. Mr Fairfield, do you want to be heard against my doing that?
MR FAIRFIELD: No, your Honour.
HIS HONOUR: There will be a standard order for remitter.
MR FAIRFIELD: Would your Honour hear me on one matter in relation to the orders?
HIS HONOUR: Yes, of course.
MR FAIRFIELD: Would it be possible for your Honour to insert an order that the further proceedings on the remitted matter be governed by the relevant High Court Rules to avoid any doubt in the matter – that is Order 55 rule 17.
HIS HONOUR: If it is for the avoidance of doubt, why am I bothering, Mr Fairfield? Is it a matter of controversy in the Federal Court about the way in which the matters are governed?
MR FAIRFIELD: The judgments in the Federal Court are to the effect that the High Court Rules apply, your Honour.
HIS HONOUR: There you are. No doubt you will inform judges of the Federal Court or, as I suspect, judges in the Federal Magistrates Court accordingly.
MR FAIRFIELD: If the Court pleases.
HIS HONOUR: There will be a standard order for remitter in matter M24/2003.
At 9.46 am Re Minister for Immigration and Multicultural and Indigenous Affairs and Another; Ex parte Applicant M60/2003 was called.
MR C.G. FAIRFIELD: May it please the Court, I appear for the Minister. (instructed by Australian Government Solicitor)
HIS HONOUR: We have, do we, consent orders for remitter? I think, again, we may have had the facts. Have you the original?
MR FAIRFIELD: I have not, your Honour. I have got the faxed copy apparently signed by the applicant. I do not know if the applicant is in Court, but I can hand up to your Honour the document ‑ ‑ ‑
HIS HONOUR: Do you think we should call the matter?
MR FAIRFIELD: Yes, your Honour.
HIS HONOUR: The matter of M60. Is anybody engaged in the matter of M60?
COURT OFFICER: No appearance, your Honour.
HIS HONOUR: Thank you. There will be a standard order for remitter in matter M60/2003.
At 9.47 am Re Minister for Immigration and Multicultural and Indigenous Affairs and Another; Ex parte Muller was called.
MS S.J. SHEPPARD: May it please the Court, I appear for the Minister. (instructed by Clayton Utz)
HIS HONOUR: Do we know of any appearance in M192?
MS SHEPPARD: I am not expecting any appearance in that matter, your Honour. Again, very late yesterday original documents were returned to the Court.
HIS HONOUR: Yes. If we make a standard order for remitter, Ms Sheppard?
MS SHEPPARD: Thank you, your Honour.
HIS HONOUR: There will be a standard order for remitter in matter M192/2003.
At 9.48 am Re Minister for Immigration and Multicultural and Indigenous Affairs and Another; Ex parte Applicant M235/2003 was called.
MR C.G. FAIRFIELD: May it please the Court, I appear for the respondent. (instructed by Blake Dawson Waldron)
HIS HONOUR: Again, is there a signed consent for remitter in that one?
MR FAIRFIELD: There is, your Honour.
HIS HONOUR: I do not know that we have it. Do we? Now we do. Yes, there will be a standard order for remitter in matter M235/2003. Again, the consent will remain on the file.
At 9.49 am Re Minister for Immigration and Multicultural and Indigenous Affairs and Another; Ex parte Applicants M286/2003 was called.
MR C.G. FAIRFIELD: May it please the Court, I appear for the Minister. (instructed by Australian Government Solicitor)
HIS HONOUR: I think we initially had a consent by one applicant. Then I think we got to the point, did we, of having a consent by both?
MR FAIRFIELD: Yes, your Honour. We hand up the duly signed consent order.
HIS HONOUR: Yes. In matter M286/2003 there will be a standard remitter and the consent will remain on the file.
At 9.50 am Re Minister for Immigration and Multicultural and Indigenous Affairs and Others; Ex parte Applicant M18/2004 was called.
MR M.F. QUINLAN: If your Honour pleases, I appear for the applicant. (instructed by Wimal & Associates)
MR C.G. FAIRFIELD: May it please the Court, I appear for the Minister. (instructed by Australian Government Solicitor).
HIS HONOUR: What are we to do? Are we to remit it?
MR QUINLAN: Yes, your Honour. There is the consent order which I believe has been signed by both solicitors.
MR FAIRFIELD: ….., your Honour.
HIS HONOUR: Yes. If I make a standard order for remitter, Mr Quinlan, in which the Minister has the task of preparing the documents necessary to effect the remitter?
MR QUINLAN: Yes, your Honour. The only point, I noticed, your Honour, that where it is purported to be signed by the applicant, it is actually the signature of the applicant’s solicitor.
HIS HONOUR: Yes. Thank you for pointing that out. There will be a standard order for remitter in M18/2004. The consent will remain on the file.
Now, that I think deals with those matters where we know there is a consent. Can we deal next with any other matter in which the parties know there to be a consent.
At 9.51 am Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicant M257/2003 was called.
MR C.G. FAIRFIELD: May it please the Court, I appear for the Minister. (instructed by Australian Government Solicitor)
HIS HONOUR: Yes.
MR FAIRFIELD: I have a copy of a signed consent order to hand up to your Honour.
HIS HONOUR: Again, for remitter is it, Mr Fairfield?
MR FAIRFIELD: Yes, your Honour.
HIS HONOUR: If we make a standard order for remitter in that matter and the consent remain on the file, is that appropriate?
MR FAIRFIELD: It is, your Honour.
HIS HONOUR: Yes. There will be a standard order for remitter in matter M257/2003.
At 9.52 am Re Minister for Immigration and Multicultural and Indigenous Affairs and Another; Ex parte Applicant M266/2003 was called.
MR A.D. O’DONOGHUE: If your Honour pleases, I appear on behalf of the applicant. (instructed by Bourke & Wells)
MR C.G. FAIRFIELD: May it please your Honour, I appear for the Minister. (instructed by the Australian Government Solicitor)
HIS HONOUR: Yes, Mr O’Donoghue.
MR O’DONOGHUE: This, as your Honour will see from the proposed minutes of consent, is a consent that the application be referred for determination by a Full Court that will hear the applicant’s leave to appeal application, your Honour. Does your Honour wish now to hear me as to why it is appropriate that it not be remitted but be dealt with in the proposed way?
HIS HONOUR: Yes, it is probably best, I think, that we deal with it in that way. What is the application for special leave that is pending? Which is the matter?
MR O’DONOGHUE: Both matters turn on the way that the Tribunal dealt with a letter, purportedly from members of a Falun Gong group in the Zhabei district in Shanghai. That letter indicated, amongst other things, that the authorities had closed down the office of the organisation in that district.
HIS HONOUR: Can I interrupt you, Mr O’Donoghue. Do you have the number of the file in which the leave is ‑ ‑ ‑
MR O’DONOGHUE: Matter 265 ‑ ‑ ‑
HIS HONOUR: Matter 265/2003, yes, so that two processes are filed at the same time. The application for special leave from, what, a Full Court of the Federal Court?
MR O’DONOGHUE: Full Court last August, your Honour.
HIS HONOUR: Then these constitutional writ proceedings ‑ ‑ ‑
MR O’DONOGHUE: Were filed on the same day at the same time. It is just the numbering.
HIS HONOUR: Yes. What the parties suggest is that they come on and be heard at the same time as the application for leave?
MR O’DONOGHUE: Which hopefully, having regard to the current timetable in that matter which provides that the application books be filed, I think, by 12 March, will be the May special leave sitting in Melbourne, your Honour.
HIS HONOUR: Yes. The form of order that you want me to make, where can I – I see, we have proposed minutes of consent.
MR O’DONOGHUE: Yes, which have been signed by both parties, your Honour.
HIS HONOUR: In fact, if I were to refer the matter into a Full Court, it would be, I think, then an application for final relief, rather than an application for order nisi.
MR O’DONOGHUE: Under 55(2).
HIS HONOUR: Section 55(2) and (3), so it would be the application for the relief sought in the draft order nisi. It would be an application for the final relief sought in the draft order nisi ‑ ‑ ‑
MR O’DONOGHUE: I do not have any difficulty with that, your Honour, but the only matter I raise, that if the Court were minded to deal with the matter substantively ‑ ‑ ‑
HIS HONOUR: Which it would.
MR O’DONOGHUE: ‑ ‑ ‑ it would not do so on the special leave day.
HIS HONOUR: It very likely would ‑ ‑ ‑
MR O’DONOGHUE: Thank you for that indication, your Honour.
HIS HONOUR: ‑ ‑ ‑ in the sense that, if the Court were of the opinion that the application for final relief could not succeed, so be it. If the Court were of the view that the application for final relief should be dealt with with more extensive time available than the 20 minutes that you would have on a leave day, it may be that the Court would then adjourn it over for further hearing at a later time.
MR O’DONOGHUE: Yes, that is what I thought may occur if the Court were so minded, your Honour.
HIS HONOUR: Subject to anything that counsel may say, I think the orders in M266/2003 should be as follows:
1. Direct that the application for the relief described in the draft order nisi filed 24 September 2003 be made by notice of motion to a Full Court and be returnable at the same time as the application for special leave, being proceeding M265/2003;
2. Direct the applicant/prosecutor to file and serve a written outline of submissions in support of the relief sought on or before 26 March 2004;
3. The first respondent file and serve any further material on which she intends to rely, together with a written outline of submissions in opposition to the grant of that relief, on or before 23 April 2004;
4. Reserve costs and certify.
I should perhaps have addressed this before indicating those orders. Is it likely, is it possible, that there will be a factual controversy between the parties in connection with the application for prerogative relief?
MR O’DONOGHUE: It is my view there will not be, your Honour. It turns on the critical letter, its terms and ‑ ‑ ‑
HIS HONOUR: That I understand, but if this thing is going before a Full Court, it is not to go there if there is to be some fact finding that has to be done. So, if there is to be any factual controversy, I would delay making an order for reference in until those facts are resolved. Therefore, am I better to give the directions and have the matter back for further directions before me when I see the material that is filed by the Minister? Is that the better course to adopt? Mr Fairfield?
MR FAIRFIELD: Thank you, your Honour. It would seem possible that major factual material relied upon by the Minister will be a full transcript of the hearing and really, to that extent, that is the limit of the ‑ ‑ ‑
HIS HONOUR: Do not take this critically, Mr Fairfield, but there is a rather large back door in that proposition. Counsel should no doubt leave a suitably large back door through which they and their client can step and, as I say, I am not in the least bit critical of you for leaving it – on the contrary. I think in light of these possibilities, at this stage it is better that I recall the orders which I have just indicated and that in lieu I give directions for the filing of material and adjourn the matter to a date to be fixed. If, in the light of the material that is filed there is no factual controversy, I see then the evident sense in getting the two matters married and heard at the same time, but until we see whether there is a factual controversy and until therefore the Minister and the Minister’s advisers have had a sufficient opportunity to consider what material is to be filed, I think it better that I delay making any order for reference in.
Accordingly, I will recall the orders previously announced. In lieu I will direct that the first respondent file and serve any further material on which she intends to rely in answer to the application, together with a written outline of her submissions in opposition to that application, on or before 23 April 2004. I really have done this in the wrong order, have I not? Let me start again. Third time lucky perhaps, counsel.
1. The applicant/prosecutor file and serve a written outline of submissions in support of the grant of the relief which he seeks on or before 26 March 2004;
2. The first respondent file and serve any further material on which she intends to rely, together with a written outline of her submissions in opposition to the grant of the relief sought by the applicant, on or before 23 April 2004;
3. Adjourn the application to a date to be fixed;
4. Reserve the costs and certify.
It will be for the parties to get a date after the filing of papers to see whether the matter is then fit to go before a Full Court. I have adjourned it to a date to be fixed, but I see that if you wanted to get on in the May sittings, for example, you would need to be moving fairly promptly.
MR O’DONOGHUE: Yes, that was the first matter I was going to raise, your Honour. That may still be possible if we did it quickly. Your Honour, if I may raise another matter by way of procedure. If, indeed, the matters are dealt with together, the application book in the special leave application does, indeed, at our request, contain the full transcript before the Tribunal and an English translation of the critical letter. It may be that the respondent will reproduce the transcript as part of the further material.
HIS HONOUR: It cannot be beyond the wit of the parties to devise an efficient and economical way to deal with it.
MR O’DONOGHUE: Thank you, your Honour.
HIS HONOUR: Yes. Is there anything else we need to deal with in M266?
MR O’DONOGHUE: No, your Honour.
HIS HONOUR: Yes, thank you. Are there other consent matters?
At 10.05 am Re Minister for Immigration and Multicultural and Indigenous Affairs and Others; Ex parte Applicants M16/2004 was called.
APPLICANTS M16/2004 appeared in person.
MS S.J. SHEPPARD: May it please your Honour, I appear for the Minister. (instructed by Clayton Utz)
HIS HONOUR: Yes, Ms Sheppard.
MS SHEPPARD: In the matter of M16/2004 I have a signed consent in the old form.
HIS HONOUR: Yes, but for remitter?
MS SHEPPARD: Yes, your Honour. It has been signed by the first and second prosecutor and the first and second applicant, not the third, fourth, fifth and sixth, as they are the minor children.
HIS HONOUR: Infants, yes. There will be a standard order for remitter in matter M16/2004, consent will remain on the file.
MS SHEPPARD: Thank you, your Honour.
At 10.06 am Re Minister for Immigration and Multicultural and Indigenous Affairs and Another; Ex parte Applicant M221/2003 was called.
APPLICANT M221/2003 appeared in person.
MS S.J. SHEPPARD: May it please your Honour, I appear for the Minister. (instructed by Clayton Utz)
HIS HONOUR: Yes, Ms Sheppard.
MS SHEPPARD: In M221/2003 I have a similar document but it is a faxed copy and not an original.
HIS HONOUR: Yes. There will be a standard order of remitter in M221/2003.
MS SHEPPARD: Thank you, your Honour.
HIS HONOUR: With a copy consent, if you would be good enough to provide that, Ms Sheppard, it will again remain on the file.
At 10.07 am Re Minister for Immigration and Multicultural and Indigenous Affairs and Another; Ex parte Applicant M17/2004 was called.
MR C.G. FAIRFIELD: May it please your Honour, I appear for the Minister. (instructed by the Australian Government Solicitor)
HIS HONOUR: Yes, Mr Fairfield.
MR FAIRFIELD: The document I have has been faxed and signed by the applicant/prosecutor. I do not know if the applicant/prosecutor is in Court, your Honour.
HIS HONOUR: My note is that the applicant/prosecutor is in detention, is that right? This is the matter of M17/2004?
MR FAIRFIELD: I am instructed he is still in detention, your Honour, yes. It is a matter for remitter, your Honour. I can hand up to your Honour the document that has been signed by the applicant.
HIS HONOUR: Yes. There will be a standard order of remitter in that. The faxed copy of the applicant’s consent will remain on the file. Thank you.
At 10.08 am Re Minister for Immigration and Multicultural and Indigenous Affairs and Another; Ex parte Applicant M33/2003 was called.
APPLICANT M33/2003 appeared in person.
MR C.G. FAIRFIELD: May it please your Honour, I appear for the Minister. (instructed by Australian Government Solicitor)
HIS HONOUR: Yes, Mr Fairfield.
MR FAIRFIELD: This matter can be remitted in full. The document has been signed by the applicant husband but not by the applicant wife. I can hand that document up to your Honour.
HIS HONOUR: Yes, but it is a case suitable for remitter. I think we have in Court, firstly, an interpreter and one of the applicants. Is that right?
ALEV GURLEK, called as interpreter:
THE INTERPRETER: Yes, your Honour, I am the interpreter in this matter.
HIS HONOUR: Perhaps, Madam Interpreter, rather than affirming or swearing you, it may be sufficient for the moment if you would explain to the applicant that I propose to send the case of him and his wife to the Federal Court.
THE INTERPRETER: Thank you, your Honour.
HIS HONOUR: Is there anything that he has to say against that?
APPLICANT M33/2003 (through interpreter): No, thank you, your Honour.
HIS HONOUR: Does his wife know that this application is being made today?
APPLICANT M33/2003 (through interpreter): Yes, your Honour.
HIS HONOUR: Thank you very much for coming and thank you for your help, Madam Interpreter.
THE INTERPRETER: You are welcome. It is our pleasure, your Honour.
HIS HONOUR: There is no other applicant who requires your services I think today, is there?
THE INTERPRETER: I do not think so, your Honour, but I will certainly check it out before I go.
HIS HONOUR: Yes, thank you very much.
THE INTERPRETER: You are welcome.
HIS HONOUR: In this matter, which is matter M33/2003, there will be a standard remitter. The consent will remain on the file.
Do you, Mr Fairfield, or you, Ms Sheppard, have any other matters that you know to be consents?
MS SHEPPARD: No, your Honour.
MR FAIRFIELD: No, your Honour.
HIS HONOUR: Do you other practitioners who are present have any matters they know to be consents?
All right. I am doing the best I can to deal with these matters reasonably efficiently and that is going to be a challenge. I think it may be better if I go through them in the order in which they appear in the list, unless others wish to be heard first. No. Then matter M82/2001, one of yours, Mr Fairfield.
At 10.11 am Re Minister for Immigration and Multicultural Affairs and Others; Ex parte Thayananthan and Others was called.
MR C.G. FAIRFIELD: May it please your Honour, I appear for the Minister. (instructed by Australian Government Solicitor)
HIS HONOUR: Do we know if the applicant is here? This is a matter of some history, is it not? There was a partial remitter to the Federal Court in November 2002.
MR FAIRFIELD: It is, your Honour.
HIS HONOUR: Mr Krohn?
MR A.F.L. KROHN: Your Honour, if I might, just by way of information to the Court, I do not appear in the matter and I only stand because I understand there is nobody here for the applicant today.
HIS HONOUR: Yes.
MR KROHN: This matter or similar related proceedings in the Federal Court were heard as recently as September of last year. I appeared in those. All that I can perhaps assist the Court with is that, at least at that stage, the applicant was still minded to pursue judicial review, if that is an indication ‑ ‑ ‑
HIS HONOUR: Yes.
MR KROHN: My only purpose, your Honour, was perhaps to assist the Court in that, if that is of assistance, were the Court minded to be considering striking out or anything of that kind, and I would anticipate it is likely that I might later be contacted in connection with the further conduct of the matter, but I have no instructions today, your Honour.
HIS HONOUR: Yes. What do you say we should do, Mr Fairfield?
MR FAIRFIELD: Your Honour, I have some proposed minutes of orders that I can hand up to your Honour.
HIS HONOUR: Please. Thank you. So if I were to make orders in those terms – I should perhaps say this in respect of cases of this kind, that if I give directions of this kind in which the applicant is to file further material, if those directions were not substantially complied with or if there were no appearance when the matter was next listed, then it would, of course, be a matter for the respondents to move for whatever order seemed appropriate in those circumstances, but it may be that at that stage the applicant would have to show why the proceedings should be permitted to continue. In the meantime, if I were to make orders in terms of the minutes which you have supplied, though not by consent, does that meet the case so far as you are concerned, Mr Fairfield?
MR FAIRFIELD: It does, your Honour.
HIS HONOUR: Yes. There will be orders in terms of the minutes supplied by counsel for the Minister. I have initialled those minutes. They will remain on the file.
At 10.15 am Re Minister for Immigration and Multicultural Affairs and Others; Ex parte Palliyage was called.
MR C.G. FAIRFIELD: May it please your Honour, I appear for the Minister. (instructed by Australian Government Solicitor)
HIS HONOUR: Yes, Mr Fairfield.
MR FAIRFIELD: This is a matter which, in my submission, can be remitted in full. I am not aware if the applicant/prosecutor is in Court, your Honour. I would seek orders in the terms of the draft orders that your Honour circulated earlier.
HIS HONOUR: Yes. I should perhaps have the prosecutor called. Can you help me with the pronunciation of the name, Mr Fairfield, or not?
MR FAIRFIELD: Palliyage.
HIS HONOUR: Mr Palliyage, is it? No.
MR ……….: He has gone out.
HIS HONOUR: Yes, thank you. Is it best, Mr Fairfield, if we go on to M107?
MR FAIRFIELD: As your Honour pleases.
HIS HONOUR: We might go on to M107 and I will stand M100 down for the moment.
At 10.17 am Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Khov was called.
MR C.G. FAIRFIELD: May it please your Honour, I appear for the Minister. (instructed by Australian Government Solicitor)
HIS HONOUR: Yes, Mr Fairfield
MR FAIRFIELD: Your Honour, in matter M107/2002 the order sought is that the application be dismissed with costs. It is one of these matters where the only review is sought is the review of the refusal by the Minister to consider the exercise of his or her powers under section 351 of the Migration Act. In view of the approach of the Full Court of this Court in S134, in my submission, on the material the applicant/prosecutor does not have an arguable case and it would be futile to permit the matter to proceed further.
HIS HONOUR: Yes. What happened last time round? I see that the order was that the matter be stood out of the list. That order was made on 7 February in the last callover. I am trying to pick up where I dealt with it in the transcript of those proceedings.
MR FAIRFIELD: It would seem, your Honour, that nothing further has been filed.
HIS HONOUR: No. I think step one, let us call Kim Song Khov.
COURT OFFICER: No appearance, your Honour.
HIS HONOUR: Yes, thank you. At the last hearing, Mr Fairfield, it was stood out of the list, as best I understand it, in order that the applicant might have an opportunity to consider reframing the application. The application I think was seen to have difficulties of the kind to which you point and what Mr Krohn, who then appeared for the applicant, said, that he would anticipate that it is possible that the applicant might seek to amend but was not in a position to do so. Now, is there anything to which you would draw my attention concerning contact that your side of the record may have had with the applicant, showing whether or not he remains interested in the process?
MR FAIRFIELD: Your Honour, I have been given a copy of a file note by my instructor which refers to a conversation on 20 February with the solicitor for the applicant/prosecutor in which he was asked what the position was and whether anything further would be filed and that he would need to attend Court today. He was further informed that on the current material that has been filed, the application is futile. It would seem that ‑ my instructor has just handed me a copy of another document dated 14 August 2003, so earlier correspondence, again sent to what would appear to be the applicant/prosecutor’s solicitor on the matter, but so far we have heard nothing, your Honour.
HIS HONOUR: Yes. If I order that the application be dismissed for want of prosecution and that the applicant pay the first respondent’s costs, including reserved costs, and certify for counsel?
MR FAIRFIELD: Thank you, your Honour.
HIS HONOUR: Yes. There will be orders in those terms.
At 10.23 am Re Minister for Immigration and Multicultural Affairs and Others; Ex parte Palliyage was recalled.
MR C.K. PALLIYAGE appeared in person.
HIS HONOUR: Can we return to matter M100/2002, the matter of Palliyage. Mr Interpreter, you are good enough to appear. We need, I am afraid, to record the proceedings. Who is the gentleman who is appearing this morning?
TISSA AMARASEKERA, called as interpreter:
THE INTERPRETER: I am the interpreter. No, nobody is present.
HIS HONOUR: Yes. Then what is the interest of this gentleman in the matter?
MR PALLIYAGE (through interpreter): I mean, just this has happened to me and I want justice done.
HIS HONOUR: Yes. Then what I am proposing to do is to make an order remitting the proceedings to the Federal Court, sending them to the Federal Court. Is there any reason not to do that?
MR PALLIYAGE (through interpreter): No, it is acceptable to me.
HIS HONOUR: Yes, thank you very much, Mr Interpreter. There will be a standard order of remitter in matter M100/2002. Thank you very much.
At 10.25 am Re Minister for Immigration and Multicultural and Indigenous Affairs and Others; Ex parte Applicant Galhenage and Another was called.
MR C.G. FAIRFIELD: May it please your Honour, I appear for the Minister. (instructed by Australian Government Solicitor)
HIS HONOUR: Mr Fairfield.
MR FAIRFIELD: Thank you, your Honour. Your Honour, this is a matter which can be remitted in part and the remainder of the application is a review of a 351 matter, so it is a review of a refusal by the Minister to consider exercising her discretion.
HIS HONOUR: Consistent with S134/2002, is it sensible to leave alive the 351 issue?
MR FAIRFIELD: I have a draft order I can hand up to your Honour that might assist.
HIS HONOUR: Yes, let me see what is proposed. Again, what do we know or what do you think I should know, more accurately, about the position of the applicant here?
MR FAIRFIELD: Your Honour, my instructions are that the applicant/prosecutors have never contacted my instructor. My instructor informs me that she wrote to the applicants on 5 March, 8 May, 20 August and 2 October last year asking them to return the proposed minutes for the part transfer of the matter and we have heard nothing.
HIS HONOUR: Yes. Forgive me, I am obviously a furlong behind the pace, yet again. In M121/2002, if I go to the draft order nisi filed on 18 July 2002, where did they raise the 351 issue?
MR FAIRFIELD: Your Honour, the confusion – and I say “confusion” advisedly – arises because in paragraph 1 of the draft order your Honour will note in the penultimate line the reference to the order made by them on 3 July 2002. That is the date on which the Minister refused to consider the exercise of the discretion.
HIS HONOUR: Yes, I see. You are content, are you, to describe it as seeking to review the exercise of the ministerial power under 351 of the Migration Act? You are content with that description of this aspect of the matter?
MR FAIRFIELD: We are content with that, your Honour, yes.
HIS HONOUR: Yes.
MR FAIRFIELD: Can I indicate to your Honour that the orders were drafted largely on the basis that the applicant/prosecutors were going to be here.
HIS HONOUR: Were going to be here?
MR FAIRFIELD: Yes, your Honour, and in view of the fact that they have not shown and they have not contacted my instructor, despite the fact that on a number of occasions my instructor has attempted to contact them, notwithstanding the orders that I have handed up to your Honour, I would submit to your Honour that your Honour ought to refuse the application today with costs in view of the absence of prosecution by the applicant/prosecutors.
HIS HONOUR: I will go as far as the 351 aspect of it at the moment, Mr Fairfield. I am not minded, I think, to dismiss the proceeding entirely. Can we call, please, the two prosecutors.
COURT OFFICER: There is no appearance, your Honour.
HIS HONOUR: Yes. I am minded, Mr Fairfield, to order insofar as the application seeks to review the exercise of the ministerial power under section 351 of the Migration Act 1958 (Cth), it is dismissed; otherwise, there will be a standard order for remitter.
MR FAIRFIELD: If the Court pleases.
At 10.32 am Re Minister for Immigration and Multicultural and Indigenous Affairs and Another; Ex parte Trinh was called.
MR G. KUEK: If it please the Court, I appear for the applicant. (instructed by Access Law)
MR C.G. FAIRFIELD: May it please the Court, I appear for the Minister. (instructed by Australian Government Solicitor)
HIS HONOUR: Yes, what is the position?
MR KUEK: Your Honour, the application today is this: this matter be listed for ‑ ‑ ‑
HIS HONOUR: I am sorry, Mr Kuek, I could not hear you. I am terribly sorry.
MR KUEK: I am sorry, your Honour. The application is that this matter be listed for an application before a single Justice of this Court for an order nisi and not be remitted to the Federal Court for hearing. Now, your Honour, the proceedings were brought by affidavits filed in October ‑ ‑ ‑
HIS HONOUR: I am terribly sorry, Mr Kuek, I really am having difficulty. So I am sorry, you are going to have to bellow at me in the old‑fashioned way, Mr Kuek. It is like going back and appearing in the old Supreme Court, is it not?
MR KUEK: Your Honour, this application was supported by affidavits by a Miss Trinh in October 2002. The draft order nisi seeks orders against both the officer who had made the recommendation to the Minister as well as the Minister personally. Insofar as the orders sought against the Minister are concerned, there are two aspects of that, your Honour. The first is this: in as far as an order is sought against this officer, the Minister has an interest in the matter and therefore is rightly a party to the proceedings. Secondly, the order nisi as presently construed does not raise a further ground that will be advanced to the Court on application ‑ ‑ ‑
HIS HONOUR: Mr Kuek, why not? These are 2002 proceedings. You have had notice of this callover for I do not know how long. Why are you telling me now that there are further things that are to be done?
MR KUEK: I apologise, your Honour.
HIS HONOUR: Well, it is not good enough, Mr Kuek. It is just not good enough.
MR KUEK: The draft order nisi was prepared, your Honour, before S157 ‑ ‑ ‑
HIS HONOUR: No doubt.
MR KUEK: ‑ ‑ ‑ and S134 were delivered and…..seek counsel’s advice on whether or not, in light of the decisions of the High Court in S157 and S134, it is tenable to argue this, the decisions in Bedlington, in a whole series of authority, can be maintained. Now, it is for that reason, your Honour ‑ ‑ ‑
HIS HONOUR: Then what do you say I should do today?
MR KUEK: What this Court should do, your Honour, is to keep this matter in this Court and list it for an application for an order nisi. The reason for that, your Honour, is this. If it were to be remitted to a single judge of the Federal Court, it is going to be faced with a Full Court decision upholding Bedlington and no doubt the matter will find its way up to this Court again in due course of time.
HIS HONOUR: And I too, if I list it in front of me, will be faced with the Full Court’s decision in S157 and S134. Well, you say I should keep it and give directions about further conduct?
MR KUEK: Yes.
HIS HONOUR: Yes, what do you say, Mr Fairfield?
MR FAIRFIELD: Your Honour, on 7 February last year this matter was stood out of the list. Nothing has been filed since. The orders that are sought today do not seek the filing of any further material, just that the matter be kept in Court.
HIS HONOUR: Yes.
MR FAIRFIELD: Now, clearly on the material before your Honour, the only matter that is raised is a review of the refusal by the Minister to consider the exercise of her discretion. Clearly that matter cannot be remitted and on the strength of S134 there is not an arguable basis on the material. It would be futile to permit the matter to continue on the material.
HIS HONOUR: Yes. Mr Fairfield, what I am minded to do is to say that the applicant may have until 12.00 noon on 5 March to file any further material upon which he intends to rely. The matter will be returned before me on Monday 15 March after the March sittings. Is there anything you would say about my adopting that course?
MR FAIRFIELD: The Minister would be content with that course, your Honour.
HIS HONOUR: Thank you. A public holiday in Canberra but not in Melbourne. Well, Mr Kuek, what do you say? If I direct that any further material upon which the applicant seeks to rely be filed and served on or before 12.00 noon 5 March, that the application be adjourned to 15 March 2004 at 9.30 in Melbourne, subject always to any contrary order, and if I reserve the costs and certify for the attendance of counsel. Yes, Mr Kuek.
MR KUEK: Yes, your Honour.
HIS HONOUR: This is it, Mr Kuek. It is the last chance.
At 10.38 am Re Minister for Immigration and Multicultural and Indigenous Affairs and Another; Ex parte Narendrakumar and Another was called.
MR M.F. QUINLAN: If it please the Court, I appear for the applicant. (instructed by Wimal & Associates)
MS S.J. SHEPPARD: May it please the Court, I appear for the Minister. (instructed by Clayton Utz)
HIS HONOUR: Yes, Ms Sheppard.
MS SHEPPARD: Your Honour, I think that that matter is very similar to the one that your Honour has just dealt with.
HIS HONOUR: Yes. What do you say I should do, Mr Quinlan?
MR QUINLAN: In relation to the previous matter, the situation would appear to be similar, though counsel has a slightly ingenious argument, perhaps not to be run today, as to how to get around the mandamus catch‑22, your Honour.
HIS HONOUR: That is put forward with great confidence, Mr Quinlan.
MR QUINLAN: Yes. Well, I do not want to take it any further, your Honour. It seems to be a ploy to bowl around the pads rather than a straight delivery to hit it over the fence, your Honour.
HIS HONOUR: It is what counsel are engaged to do.
MR QUINLAN: Yes.
HIS HONOUR: If I were to make similar directions?
MR QUINLAN: Yes, your Honour.
HIS HONOUR: Ms Sheppard, are you content with that?
MS SHEPPARD: Yes, your Honour.
HIS HONOUR: Any further material upon which the applicant seeks to rely is to be filed and served on or before 12.00 noon, 5 March. The application is adjourned to 15 March 2004 at 9.30 in Melbourne. I will reserve costs and certify.
MR QUINLAN: If your Honour pleases.
HIS HONOUR: Again I say to you, Mr Quinlan, this is it.
MR QUINLAN: Yes, your Honour.
At 10.40 am Re Minister for Immigration and Multicultural and Indigenous Affairs and Another; Ex parte Moulana was called.
MR C.G. FAIRFIELD: May it please the Court, I appear for the respondent. (instructed by Australian Government Solicitor)
HIS HONOUR: Yes, Mr Fairfield.
MR FAIRFIELD: It is a matter which can be remitted in full.
HIS HONOUR: Yes.
MR FAIRFIELD: Would your Honour just pardon me one second?
HIS HONOUR: Yes.
MR FAIRFIELD: I apologise, your Honour. My understanding is that the applicant had refused to sign consent orders to remit the matter. Those are the extent of my instructions, your Honour.
HIS HONOUR: Yes. Well, if I make a standard order for remitter in the matter, I think, Mr Fairfield.
MR FAIRFIELD: If the Court pleases.
At 10.41 am Re Minister for Immigration and Multicultural and Indigenous Affairs and Others; Ex parte Applicant M21/2003 was called.
MR C.G. FAIRFIELD: If it please the Court, I appear for the Minister. (instructed by Blake Dawson Waldron)
HIS HONOUR: Yes, Mr Fairfield.
MR FAIRFIELD: Your Honour, the same applies. It is a matter that can be remitted in full.
HIS HONOUR: Yes. Is there still some contact with the applicant?
MR FAIRFIELD: Could your Honour excuse me one second?
HIS HONOUR: Yes, of course. You are keeping control of a large number of different matters.
MR FAIRFIELD: Again, your Honour, it seems my instructor has written to the applicant requesting the applicant to sign consent orders but the applicant has not replied.
HIS HONOUR: Yes. If I make a standard order for remitter?
MR FAIRFIELD: If the Court pleases.
At 10.42 am Re Minister for Immigration and Multicultural and Indigenous Affairs and Another; Ex parte Applicant M40/2003 was called.
APPLICANT M40/2003 appeared in person.
MS S.J. SHEPPARD: If it please the Court, I appear for the Minister. (instructed by Clayton Utz)
HIS HONOUR: Yes, Ms Sheppard.
MS SHEPPARD: In that matter I had thought the applicant might have been in Court this morning. It is a matter in which the standard order would be an appropriate order to make.
HIS HONOUR: Yes. Is there anybody present for matter M40/2003? You are here about matter M40?
APPLICANT M40/2003: Yes.
HIS HONOUR: And are you the applicant?
APPLICANT M40/2003: Yes, I am the applicant. Can I get the interpreter to help?
HIS HONOUR: Yes. Which?
APPLICANT M40/2003: Singhalese.
HIS HONOUR: Have we the Singhalese interpreter, please? Mr Interpreter, would you be so kind? Mr Interpreter, perhaps if you would be good enough to tell the applicant that what I want to do is to send his case for the Federal Court to deal with. Is there anything he wants to say about that?
APPLICANT M40/2003 (through interpreter): No.
HIS HONOUR: There will be a standard order of remitter. Mr Interpreter, if you would tell him that the papers will be sent to the Federal Court and they will then deal with the matter as they see fit. Thank you very much for coming. You may go if you wish. Not you, Mr Interpreter, we still need you.
At 10.43 am Re Minister for Immigration and Multicultural and Indigenous Affairs and Others; Ex parte Applicants M42/2003 was called.
APPLICANT M42/2003 appeared in person.
MS S.J. SHEPPARD: May it please the Court, I appear for the respondent. (instructed by Clayton Utz)
HIS HONOUR: Yes, Ms Sheppard.
MS SHEPPARD: That is in a similar position, your Honour. The standard order is ‑ ‑ ‑
HIS HONOUR: I think the applicant in M42 is here. Sir, would you need the interpreter as well? Yes. Mr Interpreter, again if you would be good enough to explain to the applicant that I want to send his case to the Federal Court and that it will be for them to decide what happens in it.
THE INTERPRETER: He agrees.
HIS HONOUR: Yes, thank you very much. There will be a standard remitter in that matter. Thank you very much for coming.
At 10.44 am Re Minister for Immigration and Multicultural and Indigenous Affairs and Others; Ex parte Wickramasinghe was called.
MR C.G. FAIRFIELD: May it please the Court, I appear for the Minister. (instructed by Australian Government Solicitor)
HIS HONOUR: Mr Fairfield.
MR FAIRFIELD: Your Honour, again it is a matter in which the standard order could apply and it can be remitted in full.
HIS HONOUR: Yes. The solicitor on the record has indicated though they remain on the record that they are no longer acting, but they have not got themselves off the record yet, Mr Fairfield. There we are. But if I order remitter in the standard terms.
MR FAIRFIELD: Yes, your Honour.
HIS HONOUR: Is anybody here in matter M48? No? There will be orders for remitter in the standard form.
At 10.45 am Re Minister for Immigration and Multicultural and Indigenous Affairs and Another; Ex parte Applicant M56/2003 was called.
MR C.G. FAIRFIELD: May it please the Court, I appear for the Minister. (instructed by Australian Government Solicitor)
HIS HONOUR: Mr Fairfield.
MR FAIRFIELD: The same applies, your Honour.
HIS HONOUR: Yes. Is anybody interested in matter M56? The standard remitter.
At 10.45 am Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Luu was called.
MR G. KUEK: If it please the Court, I appear for the applicant. (instructed by Access Law)
HIS HONOUR: Now, Mr Kuek, in this matter I think this is the one in which Mr Horan has previously been engaged. I think that I will not take that matter before 12.00 noon.
MR KUEK: Can I say, your Honour, that since Mr Luu’s deportation in April of last year I have had no contact with him and ‑ ‑ ‑
HIS HONOUR: So Mr Luu has been removed, has he?
MR KUEK: Yes. He was deported on 29 April last year.
HIS HONOUR: Yes.
MR KUEK: And I have not managed to make contact with him, so I do not have instructions concerning the matter.
HIS HONOUR: Yes.
MR KUEK: I ask in the circumstances to be excused, your Honour.
HIS HONOUR: Yes, thank you, Mr Kuek. You are excused from further attendance in that matter. I will, nonetheless, stand it down in the list until Mr Horan appears but you, as I say, Mr Kuek, are excused from further attendance in the matter.
MR KUEK: Thank you, your Honour.
At 10.47 am Re Minister for Immigration and Multicultural and Indigenous Affairs and Another; Ex parte Applicant M79/2003 was called.
MS S.J. SHEPPARD: May it please the Court, I appear for the Minister. (instructed by Clayton Utz)
HIS HONOUR: Ms Sheppard.
MS SHEPPARD: Your Honour, in that matter the standard order would be an appropriate order to make.
HIS HONOUR: Is there anybody interested in matter M79? No?
MS SHEPPARD: Your Honour, in that and other matters I have affidavits of service of correspondence suggesting that the matter should be remitted.
HIS HONOUR: Yes.
MS SHEPPARD: If it is appropriate to file those in Court, we can do so ‑ ‑ ‑
HIS HONOUR: I think that it would be as well if ultimately they did make the file, Ms Sheppard.
MS SHEPPARD: Thank you, your Honour.
HIS HONOUR: I would not ask you to file them in Court, but if in the course of your, in effect, cleaning up the procedural aspects if you could have them filed, I would be grateful.
MS SHEPPARD: Certainly, your Honour.
At 10.47 am Re Minister for Immigration and Multicultural and Indigenous Affairs and Another; Ex parte Applicant M190/2003 was called.
APPLICANT M190/2003 appeared in person.
MR C.G. FAIRFIELD: May it please the Court, I appear for the Minister. (instructed by Blake Dawson Waldron)
HIS HONOUR: Mr Fairfield.
MR FAIRFIELD: Your Honour, again it is a matter in which the standard order would be an appropriate order to make. It can be remitted in full.
HIS HONOUR: Yes. Is anybody interested in matter M190? Yes? Is that your matter?
APPLICANT M190/2003: Yes.
HIS HONOUR: Do you mind coming forward? Do you need the help of an interpreter, sir?
APPLICANT M190/2003: No, thanks.
HIS HONOUR: You have heard me tell other people this. I want to send your case to the Federal Court. They would decide what happens to it. Is there anything you want to say against that?
APPLICANT M190/2003: No.
HIS HONOUR: Thank you very much for coming. There will be a standard order of remitter in matter M190.
At 10.48 am Re Minister for Immigration and Multicultural and Indigenous Affairs and Another; Ex parte Applicant M199/2003 was called.
MR C.G. FAIRFIELD: May it please the Court, I appear for the Minister. (instructed by Blake Dawson Waldron)
HIS HONOUR: Yes, Mr Fairfield.
MR FAIRFIELD: Matter M199, your Honour, again is a matter in which it would be appropriate to make the standard order.
HIS HONOUR: Yes. Is anybody interested in M199? Thank you. There will be a standard remitter in that matter.
At 10.49 am Re Minister for Immigration and Multicultural and Indigenous Affairs and Others; Ex parte Applicant M217/2003 was called.
MR C.G. FAIRFIELD: May it please the Court, I appear for the Minister. (instructed by Blake Dawson Waldron)
HIS HONOUR: Mr Fairfield.
MR FAIRFIELD: Again, your Honour, it is a matter in which the standard orders would be appropriate.
HIS HONOUR: Yes. Anybody interested in M217? No? There will be a standard remitter.
At 10.49 am Re Minister for Immigration and Multicultural and Indigenous Affairs and Others; Ex parte applicant M240/2003 was called.
MS S.J. SHEPPARD: If it please the Court, I appear for the Minister. (instructed by Clayton Utz)
HIS HONOUR: Ms Sheppard.
MS SHEPPARD: Thank you, your Honour. That is also a matter in which the standard order would be an appropriate order, in our submission, your Honour.
HIS HONOUR: Yes. Anybody interested in matter M240? No? There will be a standard remitter.
At 10.50 am Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte M291/2003 was called.
MS S.J. SHEPPARD: May it please the Court, I appear for the Minister. (instructed by Clayton Utz)
HIS HONOUR: Yes.
MS SHEPPARD: The applicant was in Court earlier and indicated that he needed to attend to something briefly.
HIS HONOUR: Yes.
MS SHEPPARD: I have over estimated the time that I thought it would take your Honour to get through the list and I said to him I thought if he was back in an hour that would be sufficient. Would your Honour mind standing that matter down until he returns?
HIS HONOUR: No, of course not.
MS SHEPPARD: Thank you.
HIS HONOUR: And if, contrary to every expectation, I was to deal with everything, I would stand it over until 12.00 noon when Mr Horan will be here in the other matter, the matter of Luu.
MS SHEPPARD: Thank you, your Honour.
At 10.50 am Re Minister for Immigration and Multicultural and Indigenous Affairs and Others; Ex parte Applicants M246/2003 was called.
MR C.G. FAIRFIELD: May it please the Court, I appear for the Minister. (instructed by Blake Dawson Waldron)
HIS HONOUR: Mr Fairfield.
MR FAIRFIELD: Again, your Honour, it is a matter, in my submission, where the standard order would be the appropriate order to make.
HIS HONOUR: Yes. M246, anybody interested? No? There will be a standard remitter in M246.
At 10.51 am Re Minister for Immigration and Multicultural and Indigenous Affairs and Others; Ex parte Applicant M267/2003 was called.
MR C.G. FAIRFIELD: May it please the Court, I appear for the Minister. (instructed by Blake Dawson Waldron)
HIS HONOUR: Mr Fairfield.
MR FAIRFIELD: Again, your Honour, a standard order would be appropriate.
HIS HONOUR: Yes. Anybody interested in M267? There will be a standard order for remitter there.
At 10.51 am Re Minister for Immigration and Multicultural and Indigenous Affairs and Others; Ex parte Sohal was called.
MR R.S. SOHAL appeared in person.
MR C.G. FAIRFIELD: May it please the Court, I appear for the Minister. (instructed by Australian Government Solicitor)
HIS HONOUR: Yes, do come forward, sir. Now, do you need the help of an interpreter?
MR SOHAL: No.
HIS HONOUR: Again, you have heard me say what I have said to others. I want to send the case to the Federal Court. Is there anything you want to say against that? No? Mr Fairfield?
MR FAIRFIELD: Again, your Honour, it is a matter in which the standard order could be appropriate.
HIS HONOUR: That order will be made. Yes, thank you.
At 10.52 am Re Minister for Immigration and Multicultural and Indigenous Affairs and Others; Ex parte Applicant M287/2003 was called.
APPLICANT M287/2003 appeared in person.
MR C.G. FAIRFIELD: May it please the Court, I appear for the Minister. (instructed by Australian Government Solicitor)
HIS HONOUR: Yes, Mr Fairfield.
MR FAIRFIELD: Again, your Honour, the standard order would be appropriate ‑ ‑ ‑
HIS HONOUR: Now, you are here in M287 are you, sir?
APPLICANT M287/2003: Yes.
HIS HONOUR: Do come forward, please. Again, we want to send it to the Federal Court. Is there anything that you would want to say against me doing that? Yes, thank you very much. There will be a standard order of remitter in M287. Thank you.
At 10.52 am Re Minister for Immigration and Multicultural and Indigenous Affairs and Another; Ex parte Applicant M289/2003 was called.
APPLICANT M289/2003 appeared in person.
MS S.J. SHEPPARD: If it please the Court, I appear for the Minister. (instructed by Clayton Utz)
HIS HONOUR: You are here for M289 are you, sir? Do come forward, please. Now, would you like the Singhalese interpreter to help you, sir?
APPLICANT M289/2003: No, thanks.
HIS HONOUR: No, you are right. I want to send it to the Federal Court. Is there anything you want to say against me doing that?
APPLICANT M289/2003: No.
HIS HONOUR: Thank you very much. There will be a standard order of remitter in that.
At 10.53 am Re Minister for Immigration and Multicultural and Indigenous Affairs and Others; Ex parte Applicant M292/2003 was called.
APPLICANT M292/2003 appeared in person.
MR C.G. FAIRFIELD: May it please the Court, I appear for the Minister. (instructed by Blake Dawson Waldron)
HIS HONOUR: Do come forward, sir, would you. Again, Mr Interpreter, if you would explain to him that I want to send his case to the Federal Court. Is there anything he wants to say against that?
APPLICANT M292/2003 (through interpreter): No.
HIS HONOUR: Mr Fairfield?
MR FAIRFIELD: Again, your Honour, the standard order is appropriate, in my submission.
HIS HONOUR: Then there will be an order remitting the matter to the Federal Court in the standard form. Thank you very much for coming.
At 10.54 am Re Minister for Immigration and Multicultural and Indigenous Affairs and Others; Ex parte Applicants M293/2003 was called.
APPLICANT M293/2003 appeared in person.
MR C.G. FAIRFIELD: May it please the Court, I appear for the Minister. (instructed by Australian Government Solicitor)
HIS HONOUR: Again, Mr Interpreter, if you would be good enough to tell him I want to send his case to the Federal Court.
APPLICANT M293/2003 (through interpreter): No, your Honour.
HIS HONOUR: There is nothing he wants to say against that?
APPLICANT M293/2003 (through interpreter): No, your Honour.
HIS HONOUR: Thank you very much. Mr Fairfield, remit?
MR FAIRFIELD: Again, your Honour, the standard order ‑ ‑ ‑
HIS HONOUR: Yes. There will be a standard order of remitter in M293. Thank you very much for coming.
At 10.54 am Re Minister for Immigration and Multicultural and Indigenous Affairs and Others; Ex parte Applicant M297/2003 was called.
APPLICANT M297/2003 appeared in person.
MR C.G. FAIRFIELD: May it please the Court, I appear for the Minister. (instructed by Australian Government Solicitor)
HIS HONOUR: Now, again, do you need the help of an interpreter, sir?
APPLICANT M297/2003: No, your Honour.
HIS HONOUR: No? You have heard me explain that I want to send it to the Federal Court. Is there anything you want to say against that?
APPLICANT M297/2003: No, your Honour.
HIS HONOUR: Thank you. Mr Fairfield, is there any reason not to make a standard order?
MR FAIRFIELD: No, your Honour.
HIS HONOUR: There will be a standard remitter order in matter M297.
At 10.55 am Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicant M298/2003 was called.
MR S.K. KAPPADATH: May it please your Honour, I appear on behalf of the applicant/prosecutor. (instructed by Baker & Armstrong)
MR C.G. FAIRFIELD: May it please the Court, I appear on behalf of the Minister. (instructed by the Australian Government Solicitor)
HIS HONOUR: Thank you. We at last get to you, Mr Kappadath. All comes to those who wait. What do you say I should do in the matter?
MR KAPPADATH: This is an application seeking a review of the refusal of the Minister to consider the exercise of his discretion under 417.
HIS HONOUR: Yes.
MR KAPPADATH: In view of the position of this Court in S134, this application is likely to fail as framed. What I would ask your Honour to do is grant the applicant/prosecutor an opportunity to perhaps reframe the application and incorporate further grounds.
HIS HONOUR: What I would be minded to do is to make directions of the kind I have made in earlier matters, namely, that any further material ‑ ‑ ‑
MR KAPPADATH: However, your Honour, March may be a little too short of time.
HIS HONOUR: Sorry?
MR KAPPADATH: As I understand in the previous matters your Honour was pleased to make the matters returnable on 5 March. In my respectful submission, that may be too short a time.
HIS HONOUR: I understand that but the time has come, I am afraid, to focus the mind. I understand that but the matter has now been ‑ ‑ ‑
MR KAPPADATH: It was filed in December last year and the applicant was released from detention only subsequent to the lodging of the application.
HIS HONOUR: I see. There is obvious advantage in my bringing all matters in which the same issue is going to be agitated on at the same time. Having fixed Monday, 15 March as the time to bring them on, I could perhaps extend the time for you to file material to, say, Wednesday, 10 March, but not I think beyond that. What do you say?
MR KAPPADATH: I am bound by your Honour’s position on that.
HIS HONOUR: Yes.
MR KAPPADATH: Thank you, your Honour.
HIS HONOUR: Any further material upon which the applicant seeks to rely is to be filed and served on or before 12 noon, 10 March 2004. The application is adjourned to 15 March at 9.30 in Melbourne. Costs will be reserved and I will certify.
Mr Fairfield, I have not even given you the courtesy of asking you whether there is anything you want to say against my following that course, have I? I should have.
MR FAIRFIELD: There is no objection, your Honour, to that course.
HIS HONOUR: It is a bit hard after the Judge has announced what he is going to do, is it not? Forgive me, it is a long callover.
MR FAIRFIELD: Indeed, your Honour.
HIS HONOUR: Then there will be directions of the kind indicated, namely, any further material upon which the applicant seeks to rely is to be filed and served on or before 12 noon, 10 March. The application is adjourned to 15 March at 9.30 in Melbourne. I will reserve costs and certify for the attendance of counsel.
At 10.59 am Re Minister for Immigration and Multicultural and Indigenous Affairs and Others; Ex parte Applicant M303/2003 was called.
APPLICANT M303/2003 appeared in person.
MR C.G. FAIRFIELD: May it please your Honour, I appear for the Minister. (instructed by the Australian Government Solicitor)
HIS HONOUR: Do you need the help of an interpreter?
APPLICANT M303/2003: No, your Honour.
HIS HONOUR: Yes. You have heard me say to others that I want to send your case to the Federal Court. Is there anything you want to say against that?
APPLICANT M303/2003: No, your Honour.
HIS HONOUR: Yes, thank you. Mr Fairfield, is it appropriate to remit?
MR FAIRFIELD: It is, your Honour.
HIS HONOUR: Yes. There will be a standard order of remitter. Thank you for coming.
At 10.59 am Re Minister for Immigration and Multicultural and Indigenous Affairs and Others; Ex parte Applicant M305/2003 was called.
APPLICANT M305/2003 appeared in person.
MR C.G. FAIRFIELD: May it please the Court, I appear for the Minister. (instructed by Blake Dawson Waldron)
HIS HONOUR: Do you need the help of an interpreter?
APPLICANT M305/2003: No, your Honour, thanks.
HIS HONOUR: Thank you. Again, I want to send your case to the Federal Court. Is there anything you want to say against my doing that?
APPLICANT M305/2003: No, your Honour.
HIS HONOUR: Yes. Mr Fairfield?
MR FAIRFIELD: No objection to the standard order, your Honour.
HIS HONOUR: Yes. There will be a standard order of remitter. Thank you for coming.
At 11.00 am Re Minister for Immigration and Multicultural and Indigenous Affairs and Others; Ex parte Applicant M306/2003 was called.
MR C.G. FAIRFIELD: May it please your Honour, I appear for the Minister. (instructed by Australian Government Solicitor)
HIS HONOUR: Mr Fairfield, nobody here in M306.
MR FAIRFIELD: I understand, your Honour, that the applicant in that matter might be in detention.
HIS HONOUR: Yes, I understand so. What do you say we should do with it?
MR FAIRFIELD: It is a matter, your Honour, in which the standard order would be appropriate.
HIS HONOUR: Yes. There will be a standard order for remitter.
At 11.00 am Re Minister for Immigration and Multicultural and Indigenous Affairs and Others; Ex parte Applicant M1/2004 was called.
APPLICANT M1/2004 appeared in person.
MS S.J. SHEPPARD: May it please your Honour, I appear for the Minister. (instructed by Clayton Utz)
HIS HONOUR: Ms Sheppard, should we be remitting this?
MS SHEPPARD: Yes, thank you, your Honour.
HIS HONOUR: Again, Mr Interpreter, would you be good enough to explain to the applicant that I want to remit his case to the Federal Court. Is there anything he wants to say against my doing that?
APPLICANT M1/2004 (through interpreter): No, your Honour.
HIS HONOUR: Thank you very much. There will be an order in the standard form remitting the matter. Thank you very much for coming.
THE INTERPRETER: Am I excused, your Honour?
HIS HONOUR: Yes, I think we have completed with your services, have we not, Mr Interpreter?
THE INTERPRETER: Thank you.
HIS HONOUR: Thank you for your help. It is very important to us.
At 11.01 am Re Minister for Immigration and Multicultural and Indigenous Affairs and Others; Ex parte Applicant M20/2004 was called.
MR C.G. FAIRFIELD: May it please your Honour, I appear for the Minister. (instructed by Blake Dawson Waldron)
HIS HONOUR: Yes, Mr Fairfield.
MR FAIRFIELD: Again, your Honour, a matter in which the standard order is appropriate, in my submission.
HIS HONOUR: Anybody interested in matter M20? Perhaps one of your instructors, Mr Fairfield, would be good enough to enquire of those remaining in the Court whether they are interested in particular matters that we have left out. I would hate to have passed them by, but there we are. But in M20/2004 there will be an order in standard form for remitter.
At 11.02 am Re Minister for Immigration and Multicultural and Indigenous Affairs and Another; Ex parte Applicant M229/2003 was called.
MS S.J. SHEPPARD: May it please your Honour, I appear for the Minister. (instructed by Clayton Utz)
HIS HONOUR: Ms Sheppard, M229/2003, there is material on the file disclosing at a remove, but the applicant has left the country.
MS SHEPPARD: Yes, your Honour.
HIS HONOUR: Should we perhaps have the applicant called, or what do you say I should do?
MS SHEPPARD: If your Honour thinks it appropriate, then the applicant could be called. The affidavit material does depose to the fact that a number of letters have been sent to the address that the applicant gave as his address for service and we have had discussions with the person who lives there.
HIS HONOUR: Yes, and she says that the applicant has left. The records of the Commonwealth do not assist us in revealing whether a person of that name has left the country?
MS SHEPPARD: Your Honour, we do have a computer printout and I do not know that I have it with me ‑ ‑ ‑
HIS HONOUR: No matter.
MS SHEPPARD: ‑ ‑ ‑ but it is the document that has a date on it which is identical with the date that the person with whom the applicant lived says the applicant left on, but it is otherwise incomprehensible without a detailed understanding of the way in which the computer system works and I, with respect, do not know that it would assist your Honour. I am certainly happy to produce it and have it put on the Court file.
HIS HONOUR: No, thank you, Ms Sheppard. We will call the applicant in matter M229.
COURT OFFICER: No appearance, your Honour.
HIS HONOUR: Thank you. Ms Sheppard, if I were to order that the application be dismissed for want of prosecution and that the applicant pay the first respondent’s costs including reserved costs, would that meet the case?
MS SHEPPARD: Thank you, your Honour.
HIS HONOUR: There will be orders in those terms. Do those appearing for the Minister think that we have dealt with the matters other than, firstly, M72, which is stood down to await the arrival of Mr Horan, and matter M291?
MS SHEPPARD: Yes, your Honour.
MR FAIRFIELD: Yes, your Honour.
HIS HONOUR: Is there any other matter that those appearing wish to mention? I think I have completed the list, but I want to find out now whether I have omitted one, rather than later.
MR FAIRFIELD: I do not believe your Honour has omitted any of them.
HIS HONOUR: Yes. If I were to stand M291 down until 12 noon, Ms Sheppard, would that be convenient to you?
MS SHEPPARD: Yes, your Honour.
HIS HONOUR: I will then simply adjourn until 12 noon.
MS SHEPPARD: Your Honour, is it helpful to indicate that M291 is not a matter which we think your Honour will be able to remit?
HIS HONOUR: Is it in the like case to the other section 417, 351 cases?
MS SHEPPARD: No, your Honour, it is a little more difficult than that. It seeks the review of a delegate’s decision and it is an old Part 8 under the pre‑October 2001 provisions of the Migration Act.
HIS HONOUR: Where does that take me, do you say?
MS SHEPPARD: It takes you, your Honour, to the position where a decision of a delegate in those circumstances was at that time not capable of review by the Federal Court. On that basis we would ask your Honour to have the matter remain here but to make some directions for the filing of material so that the matter could progress.
HIS HONOUR: Yes. Thank you for the forewarning. Adjourn until 12 noon.
AT 11.06 AM THE MATTERS WERE ADJOURNED
UNTIL LATER THE SAME DAY
UPON RESUMING AT 12.03 PM:
At 12.03 pm Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicant M291/2003 was recalled.
APPLICANT M291/2003 appeared in person.
HIS HONOUR: Would you mind coming forward, sir, so that you can listen to what is happening. Ms Sheppard, is the applicant’s English tolerably good?
MS SHEPPARD: I think so, your Honour.
HIS HONOUR: Sir, are you comfortable without having an interpreter?
APPLICANT M291/2003: If your Honour can speak very slowly, I think I will understand.
HIS HONOUR: Yes, we will get there. Ms Sheppard, what do you say we should do?
MS SHEPPARD: Your Honour, it is our submission that this matter should remain in this Court. The Tribunal decision was made on 28 June 2001 in relation clearly to an earlier delegate’s decision. Following that Tribunal decision the matter proceeded under the old Part 8 in the Federal Court when the applicant filed an application for an order of review. That application was dismissed in April 2003. There was then an appeal to the Full Federal Court and that appeal was dismissed in November 2003. The application before your Honour was filed in December 2003. If your Honour goes to Part 2 of the schedule to the Migration Legislation Amendment (Judicial Review) Act 2001 – and I can hand your Honour a copy, if that would be ‑ ‑ ‑
HIS HONOUR: Please.
MS SHEPPARD: It is our submission, your Honour, that the new Part 8, as it were, does not apply in this matter because this is a matter caught by 8(2) where a decision was made before the commencement of the schedule but as at that commencement an application for judicial review of the decision had not been lodged – sorry, in this case an application had been lodged. So the fact that this application, the application in this Court, was lodged after that Act came into force does not make this matter the subject of the Part 8 amendments that came into force at the same time. Rather, because there was a related proceeding which had been commenced and was a pre‑privative clause matter, this matter also falls to be determined under the old legislation.
HIS HONOUR: Yes.
MS SHEPPARD: Your Honour, the next stage of the process is to have regard to the application which is made in this matter and on the face of the documents which the applicant has filed it is clear that the applicant seeks a review of the delegate’s decision and not a review of the Tribunal’s decision. If then you go to section 475 of Part 8 of the Act as it was prior to the 2001 amendment, we would suggest that the delegate’s decision is an RRT reviewable decision. So, pursuant to section 475(2)(d), this is not a matter where the Federal Court has jurisdiction to deal with the application.
HIS HONOUR: Yes.
MS SHEPPARD: If all of that logically follows, your Honour, we would ask that the matter remain here and that your Honour make orders for the parties to file outlines of argument in support and in opposition and for the matter to progress on that basis.
HIS HONOUR: What timetable do you say I should follow?
MS SHEPPARD: Your Honour would probably want to have regard to the applicant’s convenience as well, but we would say that the timetable should be reasonably tight ‑ perhaps a month for the applicant and then three weeks or a month for the Minister and then at the convenience of the Court.
HIS HONOUR: I see from the correspondence file that your firm wrote to the Registrar suggesting that there were some other points that might arise. I refer to your letter of 15 January this year.
MS SHEPPARD: Your Honour, that is a letter for which I am responsible. It, having reviewed the matter in preparation for this listing, seems to me to make suggestions that are not, on that analysis, appropriate for the disposal of the matter.
HIS HONOUR: Yes. What I have in mind is that if the Minister wanted to make contentions that go to the availability of the process, it is probably better if the Minister goes first, so that the applicant knows what defects the Minister says there are in the process and answers them, rather than the applicant putting on material in support of the application and leaving it all swing over until reply, which invariably comes in at the last minute and that the real issue in the case therefore tends to come too late in the process.
MS SHEPPARD: Yes, your Honour.
HIS HONOUR: Now, is there any advantage in your side of the record putting on an outline of submissions which would, amongst other things, point to any difficulties or deficiencies that you say the applicant faces and have the applicant respond?
MS SHEPPARD: Your Honour, although as a matter of principle I would prefer the matter to proceed in, if I could call it the ordinary way. If your Honour is minded to make that order, I would have to say that given the history of the matter and the knowledge that we have about what the applicant already says that we could probably deal with it satisfactorily, subject to any necessary reply.
HIS HONOUR: If I were to direct that the Minister file and serve an outline of contentions, including any contention concerning the availability of the process instituted by the applicant and the statutory provisions that are engaged and direct the filing of that, say, by 24 March, then give the – I might have to bring that back, I might have to bring that back, say, to Friday, 19 March, with a view to the applicant – no, whichever way I do it, it is difficult because of Easter intervening. So if said 26 March and the applicant to have until, say, 16 April and any reply by the Minister – I thought a week might suffice for that, would you not – 23 April, with a view to adjourning it over to, say, 5 May.
MS SHEPPARD: Thank you, your Honour.
HIS HONOUR: We you be content if we went down that path?
MS SHEPPARD: Certainly, your Honour.
HIS HONOUR: Now, Mr Applicant, as you know, or may know, the Migration Act tells me I cannot publish your name, so forgive me if I call you Mr Applicant. What I want to do is to give directions about the time by which submissions of both sides are filed and then bring the case back here on 5 May to see what we do about it. Now, I would direct the Minister to file her material by 26 March, direct you to file your argument and any other affidavit that you wanted to file by 16 April and the Minister to have until 23 April to reply. Is that timetable okay? Are those dates all right? Are you happy with them? I am sorry, you will need to stand up and speak up.
APPLICANT M291/2003: I am satisfied with that date, but I prefer if you can extend a little bit later, the date, maybe until the end of April?
HIS HONOUR: Sorry, I am having difficulty hearing. Are you able to hear, Ms Sheppard?
MS SHEPPARD: The applicant has asked whether you would be prepared to extend the date, I assume for his compliance with the orders, until the end of April.
HIS HONOUR: Well, 27 April, that is the day after Anzac Day, and I do not think that – sorry, let me get this right ‑ to 23 April and your reply by 30 April, Ms Sheppard.
MS SHEPPARD: Thank you, your Honour.
HIS HONOUR: Is that all right?
MS SHEPPARD: Yes, your Honour.
HIS HONOUR: For 23 April. Now, you can, if you want, appear for yourself on 5 May. The arguments we will have then may be arguments about questions of law. Think about whether you want to try to get a lawyer to appear before me. It is up to you, but if you are going to get a lawyer to look after you, do it soon. Do not wait. In this matter, M291/2003, there will be the following directions:
1. Direct the Minister file and serve an outline of her contentions, including any contention concerning the availability of the process instituted by the applicant and the statutory provisions that are engaged, and fix 12.00 noon at 26 March 2004 as the time for filing and serving of those documents;
2. Direct the applicant on or before 12.00 noon 23 April file and serve any further affidavit on which he intends to rely and an outline of his contentions (a) in answer to the Minister’s contentions and (b) in support of his application;
3. On or before 12.00 noon 30 April the Minister file and serve any contention in reply to the applicant’s contentions;
4. Subject to any contrary direction, adjourn the further hearing of this matter to 5 May 2004 at 9.30 in Melbourne;
5. Reserve the costs.
MS SHEPPARD: Thank you, your Honour.
HIS HONOUR: Now, Ms Sheppard, might I trouble you to take out the order fairly promptly.
MS SHEPPARD: Yes, your Honour.
HIS HONOUR: And would you be good enough to give or send to the applicant a copy of that order so that he has a document from which he can work.
MS SHEPPARD: Yes, your Honour.
HIS HONOUR: It should be unnecessary, but if we do it then ‑ ‑ ‑
MS SHEPPARD: No, certainly, your Honour, that is fine.
HIS HONOUR: Thank you very much.
At 12.23 pm Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Luu was recalled.
MR C.J. HORAN: If your Honour please, I appear for the respondent. (instructed by Australian Government Solicitor)
HIS HONOUR: You will have heard, I think, that Mr Kuek was in Court earlier and informed me that he was the solicitor‑of‑record but had no instructions, had not been able to contact the applicant, the applicant having been deported from Australia some time ago, and he requested, and I granted him, permission to leave.
MR HORAN: Yes.
HIS HONOUR: Now, where do we go from here, Mr Horan?
MR HORAN: Well, perhaps to formalise the material before the Court, if I could file an affidavit which deposes to the removal of the applicant which took place later in the day on 28 April 2003 after the application for interim or interlocutory relief had been dismissed by your Honour.
HIS HONOUR: Yes.
MR HORAN: The proceeding which was filed on that day seeks a writ of habeas corpus in relation to what was then the ongoing detention of the applicant and also constitutional writs challenging the deportation order made in May 1997. In the light of the applicant’s removal, I would submit that insofar as the proceeding seeks habeas corpus it has clearly been overtaken by the applicant’s release from detention and removal or deportation from Australia.
HIS HONOUR: I will not quibble with you about release from detention, Mr Horan. If I simply dismiss the matter for want of prosecution and order the applicant to pay the Minister’s costs including reserve costs and certify?
MR HORAN: Yes, your Honour.
HIS HONOUR: That will do?
MR HORAN: If the Court pleases.
HIS HONOUR: There will be orders in those terms. I will adjourn.
AT 12.26 PM THE MATTERS WERE CONCLUDED
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Civil Procedure
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