Callover, Sydney

[2003] HCATrans 324

[2003] HCATrans 324

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  

CALLOVER OF 30 IMMIGRATION

MATTERS

HEYDON J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON MONDAY, 25 AUGUST 2003 AT 9.35 AM

Copyright in the High Court of Australia

HIS HONOUR:   Before we begin this morning, there is a statement which I wish to make.  On 4 February 2003 the Court gave judgment in the matter of Plaintiff S157 of 2002 195 ALR 1 and the matter of S134 of 2002 195 ALR 24. The Court held that the definition of “privative clause decision” in Part 8 of the Migration Act refers to decisions involving neither a failure to exercise jurisdiction nor an excess of jurisdiction conferred by the Act:  see paragraph [76].  Accordingly, neither section 474 nor section 486A of the Act on their proper construction bars or limits the exercise of the jurisdiction of this Court where it is alleged that there has been a jurisdictional error.  The Court further held that the limitation upon the power of this Court under section 44 of the Judiciary Act to remit proceedings to the Federal Court of Australia is controlled by the construction given to section 474.

That being so, unless cause is shown to the contrary, I propose this morning to order that the proceedings now pending in this Court which were initiated after the coming into operation of the privative clause provisions in Part 8 of the Act be remitted to the Federal Court.  To the extent to which a remitted proceeding alleges jurisdictional error, the Federal Court will have jurisdiction to hear and determine the proceeding.  The orders I have proposed today thus do not reduce any applicant’s rights.  They merely determine which court will consider what those rights are.

The course of proceedings I propose to adopt today is indicated on the callover list that I think representatives of parties and others have available to them.  Parties and their representatives have also had available to them a copy of the pro forma order which is under consideration.  It is an order of the kind which has been adopted in most of the cases in which orders for remitter have been made earlier this year.  I will deal with matters in groups, but each matter will be called individually.

There are a number of matters in which parties are appearing for themselves.  Some of those parties who are appearing for themselves have asked for the provision of interpreters, and arrangements have been made for this.  If practitioners, particularly those representing the Minister, feel in a position where they can offer assistance to litigants in person who have questions, the Court would be most grateful if that assistance could be offered.  So we will proceed to block 1, which consists of represented applicants.

At 9.38 am Re Minister for Immigration and Multicultural and Indigenous Affairs and Another; Ex parte Applicant S76/2003 was called.

MR N.J. DOBBIE:   May it please your Honour, I appear for the applicant.  (instructed by Parish Patience)

MR A. MARKUS:   If your Honour pleases, I appear for the first respondent Minister.  (instructed by Australian Government Solicitor)

HIS HONOUR:   The Deputy Registrar has a certificate in which he states that he has been informed by the solicitor for the second respondent, the Refugee Review Tribunal, that the second respondent does not intend to appear at the hearing of this matter and will submit to the order of the Court save as to costs.  Is there any problem with the standard order, Mr Dobbie?

MR DOBBIE:   No, your Honour.

HIS HONOUR:   Mr Markus?

MR MARKUS:   Your Honour, there is, if I can just briefly explain.  Could I perhaps hand up to your Honour some consent to remission of the application but it is slightly different to the orders proposed by your Honour.  If I could briefly explain the difference.

HIS HONOUR:   Yes.

MR MARKUS:   If your Honour looks at the proposed orders and in particular paragraph 2 which provides that the application proceed in that court – that is the Federal Court of Australia – as if the steps already taken in the application in this Court had been taken in that court, that is an order which the consent order that I have handed up to your Honour does not contain.  The reason for that, your Honour, is that recently there has been an argument in the Federal Court of Australia to the effect that an order in those terms would mean that the High Court Rules relating to the requirement for extension of time, that is Order 55 rule 17 in relation to certiorari and Order 55 rule 30 in relation to mandamus, do not need to be satisfied.

Justice Heerey, who heard that particular argument in Victoria, has reserved over that question.  Whilst our client, that is the Minister, does not accept the correctness of that argument, we thought as a matter of more abundant caution we ought to take a position where such arguments could be avoided in the future.  Now, what we have done, your Honour, in order to address that issue is to remove an order in terms of paragraph 2 and to insert the words “including the application for enlargement of time” in paragraph 1.  There is one additional order ‑ ‑ ‑

HIS HONOUR:   Yes.  There is one other change which is that the proposed draft order 3(a) about the lodgement of the order to be made today, if we ever get to make any orders today, there is no equivalent, is there?  Your order 2 says that within 14 days there is to be lodged with the Registry one copy of all documents filed.

MR MARKUS:   Yes, your Honour.

HIS HONOUR:   But it does not contain any equivalent to a suborder relating to the lodgement of the standard order being made today.

MR MARKUS:   We obviously have no difficulty with that, your Honour.

HIS HONOUR:   So let me try and put it this way:  standard order 3, which is larger than your order, you do not mind?

MR MARKUS:   No, I do not, your Honour.

HIS HONOUR:   What you want is your proposed standard order 1 ‑ ‑ ‑

MR MARKUS:   To replace paragraphs 1 and 2 of the proposed order.

HIS HONOUR:   Yes.  I just think for convenience we might have to adjourn shortly to get a standard document put together so that all the people in the later matters understand what precisely is going on.  But I interrupted you.  You were going to say there was one other aspect of your orders that was new.

MR MARKUS:   Well, your Honour, it is not really new.  It is paragraph 2 which, in effect, is expanded up by proposed order paragraph 3.  Our version is a little bit more skinny, if I can put it that way, your Honour, and paragraph 3 is not in fact in the proposed orders and obviously that is not something we insist upon, that it is just a form of words that has been included in the ‑ ‑ ‑

HIS HONOUR:   But your paragraph 3 is the same as the last one and a half lines of the proposed paragraph 3 of it.

MR MARKUS:   That is correct, your Honour.

HIS HONOUR:   So in substance the proposed paragraph 3 covers the problem.

MR MARKUS:   Yes, your Honour.

HIS HONOUR:   Mr Markus, may I take it that the position you are advancing is common to all representatives on behalf of the Minister?

MR MARKUS:   Yes, your Honour.

HIS HONOUR:   If we took the proposal that I was propounding and deleted orders 1 and 2 and substituted your order 1, would that be satisfactory?

MR MARKUS:   Yes, your Honour.  Of course, my order 1 in its present form refers to an application for an order nisi for writs of prohibition, certiorari and mandamus, which may not be common to all cases.  So it may be that if it is a general order, then we should just leave it “the application” and take the other words out.

HIS HONOUR:   Yes.  Shall we make, in the draft I am proposing, order 1 be “The further proceedings in this application (including any application for enlargement of time) be remitted” and cross out 2 and then I think everything else is all right.

MR MARKUS:   Yes, thank you, your Honour.

HIS HONOUR:   Now, are you happy with that, Mr Dobbie?

MR DOBBIE:   Yes, your Honour.

HIS HONOUR:   Yes.  I think in this matter I will make an order in the form discussed with Mr Markus.  The Court will adjourn for five minutes for the purpose of a standard form of order being prepared along the lines that I have just made so that it can be considered in other matters.  Thank you.  The Court will adjourn briefly.

AT 9.46 AM SHORT ADJOURNMENT

UPON RESUMING AT 9.57 AM:

At 9.57 am Re Minister for Immigration and Multicultural and Indigenous Affairs and Another; Ex parte S175/2003 was called.

MR J.D. SMITH:   If it please the Court, I appear for the applicants.  (instructed by Parish Patience)

MR B.A. CRAMER:   May it please the Court, I appear for the respondent.  (instructed by Blake Dawson Waldron)

MR SMITH:   Your Honour, I have some orders that the parties have agreed to.

HIS HONOUR:   Very well.

MR SMITH:   This is slightly different to the other matters in the list.

HIS HONOUR:   Is this because there is a section 351, section 417 aspect?

MR SMITH:   No, it is because two of the orders are sought against a judge of the Federal Court.

HIS HONOUR:   That is consented to, is it, Mr Cramer?

MR CRAMER:   It is, your Honour.

HIS HONOUR:   I make those orders by consent and I place them with the file.  We will now move to block 2 which are matters related to Bangladesh.

At 9.58 am Re Minister for Immigration and Multicultural and Indigenous Affairs and Others; Ex parte Applicant S105/2003 was called.

HIS HONOUR:   Is there an interpreter present in the Bengali language? 

AMIR HOSSAIN, affirmed as interpreter:

APPLICANT S105/2003 appeared in person.

MR B.A. CRAMER:   May it please the Court, I appear for the first respondent.  (instructed by Blake Dawson Waldron)

HIS HONOUR:   Now, Mr Cramer, do you know whether S105 is present?

MR CRAMER:   I do not, I am sorry, your Honour.

HIS HONOUR:   Is S105 in Court?  The Deputy Registrar has certified that he has been informed by the solicitor for the second and third respondents that they do not intend to appear at the hearing of the matter and will submit to the order of the Court except as to costs.  Could you ask Applicant S105 whether he has seen the latest form of the draft order which is proposed?  Could you ask him if he has any objection to his case being referred to the Federal Court?

APPLICANT S105/2003 (through interpreter):   No.

HIS HONOUR:   Very well.  It is appropriate to make that order, is it?

MR CRAMER:   It is, your Honour.

HIS HONOUR:   I will make the usual order in that matter.  Thank you.

At 10.00 am Re Minister for Immigration and Multicultural and Indigenous Affairs and Others; Ex parte Applicant S116/2003 was called.

APPLICANT S116/2003 appeared in person.

MR B.A. CRAMER:   May it please the Court, I appear for the first respondent.  (instructed by Blake Dawson Waldron)

HIS HONOUR:   Do you speak English?  Would you like the use of the interpreter?

APPLICANT S116/2003:   Yes.

HIS HONOUR:   Could you ask him whether he has seen a copy of the draft orders that are proposed?

APPLICANT S116/2003 (through interpreter):   Yes, I did.

HIS HONOUR:   And does he object to his matter being sent to the Federal Court for determination?

APPLICANT S116/2003 (through interpreter):   No.

HIS HONOUR:   The Court holds a certificate from the Deputy Registrar saying that he has been informed by the solicitor for the second and third respondents that they do not intend to appear at the hearing of the matter and will submit to the order of the Court save as to costs.  In this matter the usual order will be made.  Thank you.

At 10.02 am Re Minister for Immigration and Multicultural and Indigenous Affairs and Others; Ex parte Applicant S128/2003 was called.

APPLICANT S128/2003 appeared in person.

MR Z. CHAMI:   May it please your Honour, I appear for the Minister.  (instructed by Clayton Utz)

HIS HONOUR:   Can you speak English?

APPLICANT S128/2003:   Yes.

HIS HONOUR:   Very well.  You understand that the Court is remitting various matters, including yours, down to the Federal Court?

APPLICANT S128/2003:   Yes.

HIS HONOUR:   Do you oppose that course?

APPLICANT S128/2003:   Yes.  I already signed a paper to…..application.

HIS HONOUR:   I see.  So you consent to the ‑ ‑ ‑

APPLICANT S128/2003:   Yes.

HIS HONOUR:   Very well.  The Court will make the usual order in that case.  I should say that the Deputy Registrar has certified that he has been informed by the solicitor for the second and third respondents that they do not intend to appear at the hearing of this matter and will submit to the order of the Court save as to costs.  Thank you very much.  Excuse me, you are Applicant S128?

APPLICANT S128/2003:   Yes.

HIS HONOUR:   And your wife is also an applicant?

APPLICANT S128/2003:   Yes, she is just outside the Court.  She is looking after my daughter.  So do you need ‑ ‑ ‑

HIS HONOUR:   Right.  But she consents to the order too, does she?

APPLICANT S128/2003:   Yes.

HIS HONOUR:   Very well.  The order is made in relation to her as well.  Thank you.

At 10.04 am Re Minister for Immigration and Multicultural and Indigenous Affairs and Others; Ex parte Applicant S142/2003 was called.

MS B. RAYMENT:   I appear for the first respondent, your Honour.  (instructed by Sparke Helmore)

HIS HONOUR:   Perhaps the name of the applicant could be called outside.  While he is being called, I should say that the Deputy Registrar has a certificate to the effect that he has been informed by the solicitor for the second and third respondents that they do not intend to appear at the hearing of this matter and will submit to the order of the Court except as to costs.  I suppose you have had no contact with the applicant?

MS RAYMENT:   Your Honour, I have the applicant’s name as…..

HIS HONOUR:   That is so on the papers in the file.  Is Applicant S142/2003 present?  If you could call Applicant S142/2003 outside the Court.  Ms Rayment, would it be appropriate to make the usual order subject to allowing the applicant 14 days within which to apply to have the orders set outside and coupled with that a direction to the Registrar to communicate the orders to the applicant indicating that orders will be made to take effect within 14 days of the letter?

MS RAYMENT:   That would be suitable, your Honour.

HIS HONOUR:   I will make the usual order subject to allowing the applicant 14 days within which to apply to have the orders set aside and I will direct the Registrar to communicate with the applicant by certified mail to the effect that unless within 14 days he indicates to the Registrar that he wishes to argue to the contrary that orders will be made in accordance with the draft circulated earlier, to take effect 14 days from the letter.  Thank you.

At 10.08 am Re Minister for Immigration and Multicultural and Indigenous Affairs and Another; Ex parte Applicant S211/2003 was called.

APPLICANT S211/2003 appeared in person.

MR Z. CHAMI:   May it please your Honour, I appear for the second respondent.  (instructed by Clayton Utz)

HIS HONOUR:   Do you speak English?

APPLICANT S211/2003:   I do.

HIS HONOUR:   Do you understand that various matters are being sent out of this Court down to the Federal Court today?  Do you consent to your matter going to the Federal Court?

APPLICANT S211/2003:   Yes.

HIS HONOUR:   Very well.  The Deputy Registrar has certified that he has been informed by the solicitor for the first respondent that the first respondent does not intend to appear at the hearing of this matter and will submit to the order of the Court save as to costs.  The Court makes the usual order.  Thank you.

At 10.09 am Re Minister for Immigration and Multicultural and Indigenous Affairs and Others; Ex parte Applicant S381/2003 was called.

APPLICANT S381/2003 appeared in person.

MR A. MARKUS:   If your Honour pleases, I appear for the first respondent.  (instructed by Australian Government Solicitor)

HIS HONOUR:   Can you speak English?  Do you understand what ‑ ‑ ‑

APPLICANT S381/2003:   I do.

HIS HONOUR:   Very well.  You understand that your matter, together with various other matters, is being sent to the Federal Court unless you have an objection.  Do you consent to the matter going to the Federal Court?

APPLICANT S381/2003 (through interpreter):   No, I do not have any objections, your Honour.

MR MARKUS:   Your Honour, could I just raise one matter in relation to these proceedings.  The application seeks to review two decisions.  One was made back in 1992 by a delegate of the Minister in relation to what was then called refugee status application.  The second decision that is sought to be reviewed was made in 1997 by the Immigration Review Tribunal.  Now, the second and third respondents are the principal member of the Immigration Review Tribunal and the member who constituted the Immigration Review Tribunal at the time.

The Immigration Review Tribunal in fact ceased to operate some four years ago and, your Honour, we think that it would be appropriate to amend the application by inserting certain orders.  Can I just indicate that I am holding instructions on behalf of the Migration Review Tribunal and if ‑ ‑ ‑

HIS HONOUR:   Are you familiar with the correspondence between the Deputy Registrar – let me read out a certificate I have.

MR MARKUS:   Thank you.

HIS HONOUR:   I think we are heading in the same direction.  The Deputy Registrar certifies that he has been advised by the solicitor for the first respondent that the Immigration Review Tribunal no longer exists.  The solicitor for the first respondent has also advised him that it will be seeking leave to substitute the Migration Review Tribunal for the second and third respondents.  If this is permitted, the Migration Review Tribunal will then submit to the order of the Court except as to costs.  The process of amendment can presumably take place within the Federal Court, or do you ‑ ‑ ‑

MR MARKUS:   I am not sure, your Honour, that that is possible.  If a matter is remitted pursuant to section 44 of the Judiciary Act, presumably that is a matter between parties.

HIS HONOUR:   Yes.  Do you want the amendment made now?

MR MARKUS:   Yes, your Honour.  I have a form of words, if I can hand that up.

HIS HONOUR:   Very well.

MR MARKUS:   Your Honour, it is paragraph 1 of the consent to orders which is a form of words which we say would be appropriate.

HIS HONOUR:   Could you tell the applicant that what we have been discussing is simply amendments to the application to take account of the fact that while the Immigration Review Tribunal was joined as a party, it no longer exists and it is appropriate to have a different structure of parties.  This does not affect the applicant’s substantive rights.

APPLICANT S381/2003 (through interpreter):   Your Honour, what I would like to say is that the initial application I have lodged to the Department of Immigration, I was not actually given any opportunity to contact and interview, so that I would like to appeal to you to have that opportunity again so that I can say whatever I have got to say.

HIS HONOUR:   That opportunity will be afforded in the Federal Court.  This amendment we are talking about is a matter of mere form and the applicant can put all the arguments he wishes to put to the Federal Court.  I notice that the form of orders prepared by the Minister has been consented to by the applicant.  What I will do is make the following orders:  the usual order together with the following order, that the draft order nisi be amended (a) by removing the second and third respondents as parties to the proceedings; and (b) by naming the Migration Review Tribunal as the second respondent to the proceedings.

At 10.16 am Re Minister for Immigration and Multicultural and Indigenous Affairs and Others; Ex parte Applicant S387/2003 was called.

MR Z. CHAMI:   May it please the Court, I appear for the first respondent.  (instructed by Clayton Utz)

HIS HONOUR:   Can you call Applicant S387/2003.

MR CHAMI:   Your Honour, I understand that Applicant S387/2003 is not here.  I have spoken to an officer at the Registry, but perhaps he should be called outside the Court.

HIS HONOUR:   Could you call him outside the Court.  While that is being done, I should say that the Deputy Registrar has certified that he has been informed by the solicitor for the second and third respondents that they do not intend to appear at the hearing of this matter and will submit to the order of the Court save as to costs.

COURT OFFICER:   No appearance, your Honour.

HIS HONOUR:   Yes.  Is it appropriate to make the orders subject to reserving liberty to him to ‑ ‑ ‑

MR CHAMI:   Yes.

HIS HONOUR:   Very well.  I will make the usual orders subject to allowing the applicant 14 days within which to apply to have the orders set aside.  I direct the Registrar to communicate with the applicant by certified mail to the effect that, unless within 14 days he indicates to the Registrar that he wishes to argue to the contrary, that orders will be made in accordance with the drafts under discussion today to take effect 14 days from the date of the letter and the other dates to take effect 21 days thereafter.  Thank you.  If you could call the third block, which relate to India.

At 10.18 am Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicant S110/2003 was called.

APPLICANT S110/2003 appeared in person.

MR Z. CHAMI:   May it please the Court, I appear for the respondent.  (instructed by Clayton Utz)

HIS HONOUR:   Do you have any objection to your matter being remitted to the Federal Court to be determined there?

APPLICANT S110/2003:   No.

HIS HONOUR:   Very well.

MR CHAMI:   I do, your Honour, unfortunately.

HIS HONOUR:   What is the problem?

MR CHAMI:   Your Honour, the applicant seeks to review a decision of the Minister exercising his power under section 417 of the Migration Act which is the power by which the Minister can exercise a non‑compellable power to grant the applicant a visa essentially after a tribunal has made a decision about his application.  Your Honour, I seek to read the affidavit of myself sworn on 12 August and filed on 13 August.  It should be on file, your Honour.  If it is not, I have another original here.

HIS HONOUR:   Does the applicant have a copy?

MR CHAMI:   That was in fact sent to the applicant on 14 August 2003 at his address on file.  Your Honour, the applicant tells me that he has received a copy of my letter as well as the affidavit.

HIS HONOUR:   Is this likely to take long?

MR CHAMI:   No, your Honour.  Essentially what I am seeking is a dismissal of the application.  In S134, I think it was at paragraphs 48 and 100 that this issue was dealt with.

HIS HONOUR:   I think the legal structure is this, is it, that section 39B of the Judiciary Act confers on the Federal Court jurisdiction in relation to mandamus of the type conferred on the High Court by section 75(v) of the Constitution?

MR CHAMI:   True.

HIS HONOUR:   Section 417 of the Migration Act enables the Minister to arrive at a more favourable order than the Tribunal did but does not impose on him any duty to consider whether or not to do so.  Therefore, you say mandamus does not apply.

MR CHAMI:   Correct, your Honour.  He cannot be forced to do something ‑ ‑ ‑

HIS HONOUR:   But is there some order nisi which might be sought from the High Court?

MR CHAMI:   No, your Honour, essentially because the orders could not attach.  I think it is section 417(7) which actually says that the Minister does not have a duty to even consider an application made by an applicant when an applicant seeks to essentially cajole the Minister in making a decision which ‑ ‑ ‑

HIS HONOUR:   What worries me slightly is that, apart from the fact that the applicant has no legal representative, he may well have been proceeding on the theory that today his matter would just be sent off to the Federal Court to be determined at leisure.  If the present application were dismissed now, what would flow?  Some visa would come to an end, would it?

MR CHAMI:   If the applicant is on a bridging visa, your Honour, and depending on which one, but I think the general rule is that essentially any bridging visa the applicant may be on expires 35 days – 28 days from today plus seven for notification – yes, it is, it is after today.

HIS HONOUR:   So he would have that period of time to consider his legal position?

MR CHAMI:   Correct, your Honour.

HIS HONOUR:   Yes.

MR CHAMI:   But I am unaware of what bridging visa the applicant is on, I should say.

HIS HONOUR:   Yes, thank you.  I am afraid prima facie it will be necessary to dismiss your application, but that will not stop you getting any legal advice you want to to see whether there is some other proceedings you can institute, but I think the present application will have to be dismissed.  Is there any reason why I should not do that?

APPLICANT S110/2003:   Because – no, I really do not know the law.  I mean…..proceeded actually, so ‑ ‑ ‑

HIS HONOUR:   Yes, I understand.  I do not think we do actually have the affidavit that you referred to.  That perhaps should be with the file.  Yes, if you have nothing more to say, just take a seat.

In this application the applicant complains of the failure of the Minister to exercise the discretion conferred on the Minister under section 417 of the Migration Act favourably to him.  The Minister on 6 March 2003 decided not to consider exercising his power in this case.  Section 417(7) provides that the Minister does not have a duty to consider his powers under those sections.  Accordingly, no order of mandamus can be granted against the Minister.  Accordingly, there is no transfer of any jurisdiction of this Court to the Federal Court by section 39B of the Judiciary Act.  There would be no point in the matter remaining in this Court because of the operation of section 417(7). 

I have noted the contents of the affidavit of Mr Ziad Chami sworn on 12 August and filed on 13 August 2003.  I dismiss the applicant’s application for an order nisi.

At 10.26 am Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicant S88/2003 was called.

MS B. RAYMENT:   I appear for the respondent, your Honour.  (instructed by Sparke Helmore)

HIS HONOUR:   Is Applicant S88/2003 in Court?  Would you call Applicant S88/2003 outside the Court.  I apprehend that Applicant S88/2003 is unlikely to be here today.  Do you have any problem with the usual order being made subject to that person’s rights to argue against it?

MS RAYMENT:   No, your Honour.

COURT OFFICER:   No appearance, your Honour.

HIS HONOUR:   In this matter I make the usual orders subject to allowing the applicant 14 days within which to apply to have the orders set aside.  I direct the Registrar to communicate with the applicant by certified mail to the effect that, unless within 14 days he indicates to the Registrar that he wishes to argue to the contrary, that orders will be made in accordance with the drafts earlier circulated to take effect 14 days from the date of the letter and other dates to take effect 21 days thereafter.

At 10.28 am Re Minister for Immigration and Multicultural and Indigenous Affairs and Others; Ex parte Applicant S117/2003 was called.

APPLICANT S117/2003 appeared in person.

MS B. RAYMENT:   I appear for the first respondent, your Honour.  (instructed by Sparke Helmore)

HIS HONOUR:   You are an interpreter from Hindi to English?

THE INTERPRETER:   Yes.

FARHAT ALI, affirmed as interpreter:

HIS HONOUR:   I should say that the Deputy Registrar has certified that he has been informed by the solicitor for the second and third respondents that they do not intend to appear at the hearing of the matter and will submit to the order of the Court except as to costs.  Does the applicant understand that the Court today is removing matters from the High Court to the Federal Court?

APPLICANT S117/2003 (through interpreter):   Yes.

HIS HONOUR:   Does he consent to his matter being removed to the Federal Court?

APPLICANT S117/2003 (through interpreter):   Yes.

HIS HONOUR:   In this matter I make the usual order for removal.  Thank you.

At 10.30 am Re Minister for Immigration and Multicultural and Indigenous Affairs and Others; Ex parte Applicant S141/2003 was called.

APPLICANT S141/2003 appeared in person.

MR Z. CHAMI:   May it please the Court, I appear for the first respondent.  (instructed by Clayton Utz)

HIS HONOUR:   Do you interpret Tamil?

THE INTERPRETER:   Yes.

RAMANATHER KULASEKERRAN, affirmed as interpreter:

HIS HONOUR:   The Deputy Registrar has certified that he has been informed by the solicitor for the second and third respondents that they do not intend to appear at the hearing of this matter and will submit to the order of the Court save as to costs.  There is no problem about the usual order?

MR CHAMI:   There is no reason.

HIS HONOUR:   Does the applicant understand that the question is whether his case should be remitted from the High Court to the Federal Court, who will consider it in due course?

APPLICANT S141/2003 (through interpreter):   Yes, your Honour, I understand that.

HIS HONOUR:   And he is content with that course?  He agrees to that course?

THE INTERPRETER:   Yes, he said he is happy with that, yes.

HIS HONOUR:   The usual order will be made.  Thank you.

At 10.32 am Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicant S156/2003 was called.

APPLICANT S156/2003 appeared in person.

MR Z. CHAMI:   May it please the Court, I appear for the respondent.  (instructed by Clayton Utz)

HIS HONOUR:   You would like the use of an interpreter?  Very well.  Does the applicant understand that her matter will be remitted to the Federal Court subject to anything she says to the contrary?

APPLICANT S156/2003 (through interpreter):   Yes.

HIS HONOUR:   She agrees with that course?

APPLICANT S156/2003 (through interpreter):   No objection, your Honour.

HIS HONOUR:   No objection, very well.  The usual order – I am sorry.

MR CHAMI:   Your Honour, this application is similar to matter No 10 on your list.

HIS HONOUR:   Yes.  You have an affidavit of 19 August?

MR CHAMI:   Yes, your Honour.

HIS HONOUR:   Filed on 19 August.

MR CHAMI:   Yes, I seek to read that affidavit.

HIS HONOUR:   Does the applicant have a copy?

MR CHAMI:   Yes, your Honour, I have given the applicant a copy.  The applicant tells me that a letter of mine which I addressed to her at her current residential address as noted in my letter and that being still her place of residence was not received but I have given her another copy of my affidavit.

HIS HONOUR:   In the circumstances, do you think this matter should stand down the list while she reads that letter and so on?

MR CHAMI:   I am happy to do that, your Honour.

HIS HONOUR:   Can I just say this – I will say something to you and if you could translate it a little later during an adjournment.  She wants the Minister to use his powers under section 417 of the Migration Act.  The Minister has a power under that Act but he has no duty to consider whether to exercise it.  It follows that it is not possible for this Court to grant her any remedy in that regard or for this Court to remit the matter to the Federal Court.  Therefore, unless some argument to the contrary is advanced, her application will have to be dismissed, not just sent to the Federal Court.  If you as best you could translate what I have just said to her afterwards.  The matter will stand in the list and we will return to it either at the end or at some convenient time.

At 10.36 am Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte D’Souza was called.

MR M. D’SOUZA appeared in person.

MR A. MARKUS:   May it please the Court, I appear for the respondent.  (instructed by Australian Government Solicitor)

HIS HONOUR:   You want the application dismissed?

MR MARKUS:   Yes, your Honour.  Could I just indicate one matter which I think I should draw to your Honour’s attention and that merely relates to the question of remittal.  Your Honour, the reason why the matter cannot be remitted as such is because of section 476(2).  Your Honour will see that that provision deprives the Federal Court and the Federal Magistrates Court of jurisdiction in relation to certain decisions made under so‑called non‑compellable exercise of powers.

HIS HONOUR:   Yes.  So you say, one, there cannot be remittal because of section 476(2) and, secondly, you say in any event the matter should be dismissed?

MR MARKUS:   Yes, your Honour.

HIS HONOUR:   Right now?

MR MARKUS:   Right now.

HIS HONOUR:   Yes.  Mr D’Souza, the decision of the Minister which you are attacking is a decision under section 351 of the Migration Act and that, in particular, he decided not to exercise his power under that Act.  Mr Markus has pointed out that because of section 476(2) the Federal Court lacks jurisdiction to consider challenges to section 351 matters.  Therefore, there would be no point in this Court remitting it to that court. 

The second point Mr Markus makes is – and this is a point made by the High Court in the cases decided in February this year – that because the Minister had no duty to consider applications made to him under section 351, the remedy of mandamus which you are seeking does not lie to him and therefore there is no arguable merit in your draft order nisi that you have filed and want the Court to consider.  Therefore, it will be necessary to dismiss your application.  Is there any argument to the contrary of what I have just said?

MR D’SOUZA:   Yes, your Honour.  In this I want to bring the matter to the Court.  How come the Minister is relying on the…..decision?  Actually my case is something different.  I have put to the Minister…..stating that I got married, I have a daughter, and the Minister has not taken into consideration within that one and I want to refer this matter to the Federal Court and want to bring it on the…..as I cannot get any answer from the Minister regarding this matter, on what grounds he has denied my ‑ ‑ ‑

HIS HONOUR:   This is on what grounds he has denied your application for him to use section 351 in your favour?  Is that what you mean or are you referring to some other complaint you have?

MR D’SOUZA:   No, 351…..states that you can get a review from the Minister because if I am alone I rather leave the country, but I have a married wife and a daughter.  Both are Australian citizens and my daughter is also only 16 months old, and we got married for three years and the Minister denies that relations.  How can I take a child – she is only 16 months and she was…..accident – one month she was…..accident and she was in hospital.  How can the Minister…..this?  He can give me relief.  …..and I think I cannot get any answer from the Minister regarding this matter I put before him because he is taking into consideration that I came on student visa.  I wanted to come with my business visa but at the time – all the situation has been changed and I have a daughter now.  I can leave them, but who will look after my daughter and my wife?  They are not dependent on anybody and my daughter requires medical attention and she was one month old, she was fallen down and she got a crack on the head and she was in hospital.  As a father I have to do all my duties towards my daughter and my wife.  I am…..where I cannot get any proper answer from the Minister.  So under section 351 I filed in – to look at the matter and give me relief, but…..no relief and I cannot…..any lawyers who compete with the Minister’s lawyers.  I do not have – what I also learned in India studying the law…..at my graduation…..  The matter is dragging and dragging and my family has broken down completely.  I have to run here, I have to run there to assist my family.

HIS HONOUR:   Yes, thank you.  Is there anything else you want to say?

MR D’SOUZA:   No.

HIS HONOUR:   This is a matter in which the applicant has filed a draft order nisi seeking that the respondent show cause why writs of mandamus, certiorari and prohibition should not issue out of this Court.  The complaint which the applicant makes is that the Minister has declined to exercise his powers under section 351 of the Migration Act.  The applicant also complains that the Minister has, in effect, misapprehended his family circumstances and the hardships that will be caused to his wife and his 14‑month‑old child if his application fails.

The solicitor appearing on behalf of the Minister has pointed out that section 476(2) of the Migration Act deprives the Federal Court of any jurisdiction to consider a challenge to the non‑exercise of the Minister’s power under section 351 and contends that in any event no order nisi should be granted because no order for mandamus can be made against the Minister in view of the absence of any statutory duty on him.  Despite what the applicant has said, the arguments of the Minister are, in my opinion, sound.  Accordingly, the application for a draft order nisi must be dismissed.

At 10.44 am Re Minister for Immigration and Multicultural and Indigenous Affairs and Another; Ex parte Applicant S235/2003 was called.

MS B. RAYMENT:   I appear for the first respondent, your Honour.  (instructed by Sparke Helmore)

HIS HONOUR:   Could you call Applicant S235/2003.  While that is being done, I have a certificate from the Deputy Registrar that he has been informed by the solicitor for the second respondent that the second respondent does not intend to appear at the hearing of this matter and will submit to the order of the Court except as to costs.  I do not expect the applicant will be here.  If he does not appear, do you object to the usual order being made together with his right to claim?

MS RAYMENT:   No, your Honour.

COURT OFFICER:   No appearance, your Honour.

HIS HONOUR:   In this matter the usual order will be made subject to allowing the applicant 14 days within which to apply to have the order set aside.  I direct the Registrar to communicate with the applicant by certified mail to the effect that, unless within 14 days he indicates to the Registrar that he wishes to argue to the contrary, that orders will be made in accordance with the drafts earlier circulated to the effect, however, 14 days from the date of the letter and other dates to take effect 21 days thereafter.

At 10.46 am Re Minister for Immigration and Multicultural and Indigenous Affairs and Others; Ex parte Applicant S372/2003 was called.

APPLICANT S372/2003 appeared in person.

MR B.A. CRAMER:   May it please the Court, I appear for the first respondent.  (instructed by Blake Dawson Waldron)

HIS HONOUR:   Do you speak English?  If there is an interpreter, he will help you.  Is there any objection to the usual order?

MR CRAMER:   There is not, your Honour.

HIS HONOUR:   Could you ask the applicant whether he understands that in this matter, as in most of the other matters, it is proposed that the case be transferred to the Federal Court so that it can be decided there.  He does not oppose that course?

APPLICANT S372/2003 (through interpreter):   No.

HIS HONOUR:   Very well.  In that matter the usual order will be made.  Thank you.  I should say the Deputy Registrar has certified that he has been informed by the solicitor for the second and third respondents that the second and third respondents do not intend to appear at the hearing of the matter and will submit to the order of the Court save as to costs.

At 10.48 am Re Refugee Review Tribunal; Ex parte Applicant S384/2003 was called.

MR A. MARKUS:   May it please the Court, I appear for the respondent.  (instructed by Australian Government Solicitor)

HIS HONOUR:   Could Applicant S384/2003 be called outside.  In the event that the applicant does not appear, do you have a problem with the usual order subject to the right to set aside?

MR MARKUS:   Your Honour, the only concern that I have in relation to this matter is that the only respondent presently nominated in the draft order nisi is the Refugee Review Tribunal and I should indicate that I hold instructions from the Tribunal and also the Minister for Immigration and Multicultural and Indigenous Affairs, who is not presently a party, but I would submit it would be appropriate to join the Minister as the first respondent so that then the Refugee Review Tribunal would be able to submit in accordance with the Hardiman principle and the matter could then be remitted.

HIS HONOUR:   So you are content with the usual order and the addition of the following order, that the Minister for Immigration and Multicultural and Indigenous Affairs be added as second respondent?

MR MARKUS:   As a respondent.  If it is first respondent or second respondent does not really matter.

HIS HONOUR:   I order that the Minister for Immigration and Multicultural and Indigenous Affairs be added as a respondent.  I make the usual order.  I note that there is no appearance from the applicant and the making of the usual orders is subject to allowing the applicant 14 days within which to apply to have the orders set aside.  I direct the Registrar to communicate with the applicant by certified mail to the effect that, unless within 14 days he indicates to the Registrar that he wishes to argue to the contrary, that orders will be made in accordance with the draft under consideration today to take effect, however, 14 days from the date of the letter and other dates to take effect 21 days thereafter.

At 10.50 am Re Minister for Immigration and Multicultural and Indigenous Affairs and Another; Ex parte Applicant S393/2003 was called.

APPLICANT S393/2003 appeared in person.

MS B. RAYMENT:   I appear for the first respondent, your Honour.  (instructed by Sparke Helmore)

HIS HONOUR:   The Deputy Registrar has certified that he has been informed by the solicitor for the second respondent that the second respondent does not intend to appear at the hearing of the matter and will submit to the order of the Court save as to costs.  Ms Rayment, is there any problem with the usual order being made?

MS RAYMENT:   No, your Honour.

HIS HONOUR:   Could you ask the applicant whether he understands the purpose of today’s case for hearing is that the matter be transmitted to the Federal Court so that they can decide his claims.  He is willing to consent to that course?

APPLICANT S393/2003 (through interpreter):   No objections.

HIS HONOUR:   Yes, the usual order will be made.  Thank you.

At 10.51 am Re Minister for Immigration and Multicultural and Indigenous Affairs and Another; Ex parte Applicant S185/2003 was called.

MR B.A. CRAMER:   May it please the Court, I appear for the first respondent.  (instructed by Blake Dawson Waldron)

HIS HONOUR:   Would you please call Applicant S185/2003.  While that is being done, I should indicate that the Deputy Registrar has certified that he has been informed by the solicitor for the second respondent that the second respondent does not intend to appear at the hearing of this matter and will submit to the order of the Court save as to costs.  In the event that the applicant does not appear, is there any reason why the usual order should not be made subject to his right to set it aside?

MR CRAMER:   There is not, your Honour.

COURT OFFICER:   No appearance, your Honour.

HIS HONOUR:   There is no appearance from the applicant.  Accordingly, I make the usual order subject to allowing the applicant 14 days within which to apply to have the orders set aside.  I direct the Registrar to communicate with the applicant by certified mail to the effect that, unless within 14 days he indicates to the Registrar that he wishes to argue to the contrary, that orders will be made in accordance with the drafts under discussion to take effect, however, 14 days from the date of the letter and other dates to take effect 21 days thereafter.

At 10.53 am Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicant S156/2003 was recalled.

MR CHAMI:   I am sorry, your Honour, I was not concentrating.  Which number are we up to?

HIS HONOUR:   That is the one in which the question of whether the matter should be ‑ ‑ ‑

MR CHAMI:   Yes, your Honour, matter No 14.

HIS HONOUR:   Yes.  Is there any reason which the applicant wants to advance why the application should not be dismissed?

APPLICANT S156/2003 (through interpreter):   Your Honour, I did not have any preparation because I thought my case is going to be transferred to the Federal Court and I did not have any clue.  That is why I am asking you for a bit more time so that I can ‑ ‑ ‑

HIS HONOUR:   How much more time?  I mean, days or weeks or minutes, hours?

APPLICANT S156/2003 (through interpreter):   Say about one to two weeks, your Honour.

MR CHAMI:   Your Honour, the only thing I wanted to note was this is in exactly the same position as the other two.  There is no argument that could be advanced, I submit, which would advance the applicant’s case any further than it would get today.

HIS HONOUR:   Yes.  Well, the other two did not ask for an adjournment.

MR CHAMI:   No, they did not, your Honour.

HIS HONOUR:   And she did say that she thought it was going to be a formal matter of remitter only.  You may well be right that there is no argument that can be advanced – certainly none has been advanced.

MR CHAMI:   Your Honour, I did forget to tell you about section 476(2).  That is because our discussion centred on whether or not relief could be sought in respect of 417 in the sense of ‑ ‑ ‑

HIS HONOUR:   Well, it is certainly clear that there can be no order of remittal, I agree with that.

MR CHAMI:   Yes, your Honour.

HIS HONOUR:   The only question is whether it should be dismissed or not.

MR CHAMI:   Yes, and I would ask your Honour to dismiss it because of the fact that it would be futile to come back in two weeks from the Minister’s point of view.

HIS HONOUR:   The representative of the Minister makes the point that – and I should say that both he and the other representatives of the Minister here today, as they usually do, are frank if there is any point that can be taken against them – the dismissal of the proceedings is inevitable and that it would simply be a waste of time for them to come back in two weeks or so, quite apart from the expense to which the Minister’s lawyers would be put by that course.  I am prepared for the matter to stay in the list longer this morning, but what he says is, I am afraid, fundamentally correct.  If the applicant does not want to say anything more, I will proceed to deliver judgment.

APPLICANT S156/2003 (through interpreter):   Your Honour, I want to know, I mean, if you are going to decide my case to dismiss here, then how long time I can have to remain in Australia legally?

MR CHAMI:   It is about 35 days, your Honour.  That was under the old rules as I remember them.  There was 28 days and there was another period of seven days for deemed notification essentially, so it was about 35.  The best that I can say is that the applicant should approach the Department of Immigration and they can help with all of that.

HIS HONOUR:   Yes.  It seems the answer is 35 days.

APPLICANT S156/2003 (through interpreter):   Can I say something?

HIS HONOUR:   Yes.

APPLICANT S156/2003 (through interpreter):   I just wanted to mention that my oldest son, he goes to school and he is in year 1.  According to my knowledge, his courses can be completed by end of December this year.  Now, if I have to leave before that period of time, then I am actually risking losing one year for his life.

HIS HONOUR:   Yes, thank you for telling me that.  The applicant has filed a draft order nisi seeking inter alia an order that the Minister show cause why a writ of mandamus should not issue out of the Court.  The act of the Minister which is complained of is a decision on his part not to exercise his power under section 417 of the Migration Act in favour of the applicant.  It is not possible to remit the application to the Federal Court because section 476(2) of the Migration Act deprives the Federal Court of jurisdiction to entertain any such application.

The Minister applies for the application in this Court to be dismissed on the ground that it is futile.  The applicant has pointed out that her son is in year 1 and it is undesirable for his education suddenly to be interrupted.  This Court is not able to assist in that particular respect, though it is open, no doubt, to the applicant to make representations to the Department of Immigration in relation to the future of herself and her son in Australia.  I dismiss the application.

At 11.01 am Re Minister for Immigration and Multicultural and Indigenous Affairs and Another; Ex parte Applicant S89/2003 was called.

APPLICANT S89/2003 appeared in person.

MR B.A. CRAMER:   May it please the Court, I appear for the first respondent.  (instructed by Blake Dawson Waldron)

APPLICANT S89/2003:   I just want to hand a letter to you.

HIS HONOUR:   Yes.  While that letter is coming up, may I just say that the Deputy Registrar has certified that he has been informed by the solicitor for the second respondent that the second respondent does not intend to appear at the hearing of this matter and will submit to the order of the Court save as to costs.  The applicant has given me a letter setting out a response to a letter of 7 August which appears to set out certain particulars of his complaint.  Do you have any objection to the usual order being made in this case?

MR CRAMER:   I do not, your Honour.

HIS HONOUR:   Do you have any objection to your matter being remitted to the Federal Court so that it can be decided by the Federal Court?

APPLICANT S89/2003:   No.

HIS HONOUR:   So you are happy with that?

APPLICANT S89/2003:   Yes, I am.

HIS HONOUR:   Very well.  I will place with the file – if that is what you want me to do with the letter of 25 August, place it with the file?

APPLICANT S89/2003:   Sorry, I ‑ ‑ ‑

HIS HONOUR:   Do you want me to put this letter with the file so that in due course it can be considered in the Federal Court, if relevant?

APPLICANT S89/2003:   Yes.

HIS HONOUR:   I will place with the file the applicant’s letter of 25 August 2003 and I will make the usual order.  Thank you.

At 11.03 am Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicant S115/2003 was called.

APPLICANT S115/2003 appeared in person.

MR B.A. CRAMER:   May it please the court, I appear for the respondent.  (instructed by Blake Dawson Waldron)

HIS HONOUR:   Do you speak English?  Do you understand that the question today is whether your matter should be sent to the Federal Court so that they can decide your case in due course?

APPLICANT S115/2003:   Yes.

HIS HONOUR:   Are you happy with that?

APPLICANT S115/2003:   Yes.

HIS HONOUR:   The usual order will be made ‑ ‑ ‑

MR CRAMER:   Your Honour, I would just like to place it on record that the application itself in this matter does not specifically refer to the Tribunal’s decision, although it seems apparent that that is in fact the decision of which the applicant seeks review.  Subject to that matter, the respondent’s understanding that that is the nature of the application, it consents to the matter being remitted.

HIS HONOUR:   Yes.  What you have said will have been noted down.  The usual order will be made then.  Thank you.  I should say that the Registry had difficulty in getting in touch with you.  It is important, since you are the applicant, to make sure that the Federal Court registry, it will be from now on, has an address where they can get in touch with you quickly.  Do you understand?

APPLICANT S115/2003:   No.

HIS HONOUR:   You need to make sure that the Federal Court registry always has your most up‑to‑date address.

APPLICANT S115/2003:   Yes.

At 11.06 am Re Minister for Immigration and Multicultural and Indigenous Affairs and Another; Ex parte Applicant S169/2003 was called.

MR Z. CHAMI:   May it please the Court, I appear for the first respondent.  (instructed by Clayton Utz)

HIS HONOUR:   Yes.

MR CHAMI:   Your Honour, when I last spoke to one of the officers of the Registry, I understand that the applicant had not arrived at Court today.  Perhaps he could be formally called and perhaps likewise the matter after that could also be called.  I understand both of them have not registered, if I could use that word, and we could essentially deal with them sequentially.

HIS HONOUR:   Could you call Applicant S169/2003 and Applicant S180/2003.  While that is being done, I hold a certificate from the Deputy Registrar to the effect that he has been informed by the solicitor for the second respondent that the second respondent does not intend to appear at the hearing of this matter and will submit to the order of the Court save as to costs.  Assuming in S169 there is no appearance, do you consent ‑ ‑ ‑

COURT OFFICER:   No appearance, your Honour.

HIS HONOUR:   Yes, thank you.

MR CHAMI:   Your Honour, I do not oppose you making the usual orders in both those matters, that is S169/2003 or S180/2003.

HIS HONOUR:   In S169/2003 I make the usual order subject to allowing the applicant 14 days within which to apply to have the order set aside and I direct the Registrar to communicate with the applicant by certified mail to the effect that, unless within 14 days he indicates to the Registrar that he wishes to argue to the contrary, that orders will be made in accordance with the drafts earlier circulated to take effect 14 days from the date of the letter and other dates to take effect 21 days thereafter.

At 11.08 am Re Minister for Immigration and Multicultural and Indigenous Affairs and Another; Ex parte Applicant S180/2003 was called.

MR Z. CHAMI:   May it please the Court, I appear for the first respondent.  (instructed by Clayton Utz)

HIS HONOUR:   The Deputy Registrar certifies that he has been informed by the applicant for the second and third respondents that they do not intend to appear at the hearing of the matter and will submit to the order of the Court save as to costs.  There is no appearance by the applicant in this matter.  Accordingly, the usual orders will be made subject to allowing the applicant 14 days within which to apply to have them set aside.  I direct the Registrar to communicate with the applicant by certified mail in the same terms as I have directed in similar cases earlier.

At 11.09 am Re Minister for Immigration and Cultural and Indigenous Affairs; Ex parte Applicant S389/2003 was called.

APPLICANT S389/2003 appeared in person.

MR Z. CHAMI:   Your Honour, I appear for the Minister.  (instructed by Clayton Utz)

HIS HONOUR:   Do you speak English?

APPLICANT S389/2003:   …..

HIS HONOUR:   Is there an Urdu interpreter present?

ANDUR RAUF, affirmed as interpreter:

HIS HONOUR:   Is there any problem with the usual order being made?

MR CHAMI:   Your Honour, the only thing that I wanted to bring your attention is – does your Honour have the draft order nisi there?

HIS HONOUR:   Yes, I do.

MR CHAMI:   Your Honour will see that the applicant seeks to essentially ask the Court to review a decision of the Refugee Review Tribunal dated 22 February 2002, but the affidavit which was filed in support of the application at paragraph 11 refers to seeking the honourable Court’s intervention in respect of both the RRT decision as well as a Minister’s decision, and that is a reference to a section 417 application.  Your Honour, I ask the matter be remitted only to that extent which does not involve the section 417 application and for the section 417 part, if any, to be dismissed.  It is just unclear and that is why I bring it to your attention.

HIS HONOUR:   Can you say to the applicant that the Court proposes to remit to the Federal Court his complaint against the Refugee Review Tribunal decision? 

APPLICANT S389/2003 (through interpreter):   Yes.

HIS HONOUR:   And he does not oppose that?

APPLICANT S389/2003 (through interpreter):   No, your Honour.

HIS HONOUR:   If you could say to him that paragraph 11 of his affidavit suggests that he is also complaining about a decision by the Minister, that the Court has no power to remit that matter.

APPLICANT S389/2003 (through interpreter):   You know, I only want to raise the objection against the Refugee Review Tribunal.  I have nothing against the Minister.

HIS HONOUR:   Very well.  The usual orders will be made in relation to the applicant’s challenge to the decision of 22 February 2002 of the Refugee Review Tribunal.

MR CHAMI:   Would your Honour consequently dismiss that aspect of the section 417 application in this Court, just so it does not come back some time down the track.

HIS HONOUR:   Well, the order nisi does not refer to it.

MR CHAMI:   It does not.

HIS HONOUR:   I think it is probably covered by ‑ ‑ ‑

MR CHAMI:   I understand.

HIS HONOUR:   Yes, thank you.

At 11.13 am Re Minister for Immigration and Multicultural and Indigenous Affairs and Another; Ex parte Applicant S146/2003 was called.

APPLICANT S146/2003 appeared in person.

MR A. MARKUS:   May it please the Court, I appear for the first respondent.  (instructed by Australian Government Solicitor)

HIS HONOUR:   Do you speak English?

APPLICANT S146/2003:   A little bit.

HIS HONOUR:   Mr Markus, is there any objection to the usual order?

MR MARKUS:   No, your Honour.

HIS HONOUR:   Do you understand that your case, like lots of other cases today, is being taken out of this Court and sent to the Federal Court so that your complaints will be considered there?

APPLICANT S146/2003:   Yes.

HIS HONOUR:   Are you happy with that?

APPLICANT S146/2003:   Yes.

HIS HONOUR:   Very well.  The usual order will be made.  I should indicate that the Deputy Registrar has certified that he has been informed by the solicitor for the second respondent that the second respondent does not intend to appear at the hearing of the matter and will submit to the order of the Court save as to costs.

At 11.15 am Re Minister for Immigration and Multicultural and Indigenous Affairs and Others; Ex parte Applicants S151/2003 was called.

APPLICANTS S151/2003 appeared in person.

MR A. MARKUS:   I appear for the respondent, your Honour.  (instructed by Australian Government Solicitor)

HIS HONOUR:   Do you speak English?

APPLICANT S151/2003:   Yes.

HIS HONOUR:   I should say that the Deputy Registrar has certified that he has been informed by the solicitor for the second and third respondents that they do not intend to appear at the hearing of this matter and will submit to the order of the Court save as to costs.  Is there any problem with the usual order?

MR MARKUS:   No, your Honour.

HIS HONOUR:   Are you content for your case to be transmitted to the Federal Court for it to decide in due course?

APPLICANT S151/2003:   I do not object.

HIS HONOUR:   Pardon?

APPLICANT S151/2003:   I agree.

HIS HONOUR:   You agree.  The usual order will be made.

MR MARKUS:   Your Honour, I just note that there are four applicant/prosecutors but I take it that the applicant is speaking on behalf of all them.

HIS HONOUR:   Yes.  We should clear that up, thank you.  Mr Markus has drawn attention to the fact that there are four prosecutors.  You act on behalf of all of them, do you?

APPLICANT S151/2003:   Yes, I do.

HIS HONOUR:   And they all consent?

APPLICANT S151/2003:   Yes.

HIS HONOUR:   Very well.  The usual order will be made.

At 11.16 am Re Minister for Immigration and Multicultural and Indigenous Affairs and Another; Ex parte Applicant S300/2003 was called.

APPLICANT S300/2003 appeared in person.

MR A. MARKUS:   I appear for the first respondent, your Honour.  (instructed by Australian Government Solicitor)

THE INTERPRETER:   I am a Tongan interpreter, your Honour.

VILIAMI TUPOU, affirmed as interpreter:

HIS HONOUR:   I should say the Deputy Registrar has certified that he has been advised by the solicitor for the second respondent that the second respondent submits to the order of the Court save as to costs.  Is there any problem, Mr Markus, with the usual order being made?

MR MARKUS:   Yes, your Honour, there is.  If I could just very briefly refer to the draft order nisi, your Honour will see that the complaint relates to a request, in effect, to permit the applicant/prosecutor to bring a further protection visa application, that is, it relates to the exercise of a non‑compellable discretionary power under section 48B of the Migration Act.  That power is again a power that is listed under section 476(2) and, as is noted in paragraph 5 of the draft order nisi, accordingly the Federal Court and the Federal Magistrates Court do not have jurisdiction to deal with the application, but we say that for reasons which have already been discussed in Court, that is the High Court’s judgment in S134 of 2002, this again is a non‑compellable discretionary power and mandamus does not lie against the Minister.  Accordingly, in my client’s submission, the application is futile and should be dismissed.

HIS HONOUR:   The Minister is applying for the matter to be dismissed.  Is there any reason why it should not be dismissed?

APPLICANT S300/2003 (through interpreter):   I have a submission to make, your Honour. 

HIS HONOUR:   Thank you.  I understand that submission.  The applicant has filed a draft order nisi on 16 June 2003 in which he complains of a failure to exercise the power conferred by section 48B(1) of the Migration Act on the Minister.  He points out that it is not possible for the Federal Court to deal with his application because of section 476(2) of the Migration Act.  In that he is correct.  Because the remedy he is seeking is in the nature of mandamus against the Minister and because section 48B(2) does not create a duty on the Minister, it is inevitable that his application for a draft order nisi must fail in this Court as well.  Accordingly, it is dismissed.

At 11.22 am Re Minister for Immigration and Multicultural and Indigenous Affairs and Another; Ex parte Applicant S129/2003 was called.

MR I.G.A. ARCHIBALD:   I appear for the applicant, your Honour.  (instructed by the applicant)

MR A. MARKUS:   I appear for the Minister, your Honour.  (instructed by Australian Government Solicitor)

HIS HONOUR:   The Deputy Registrar has filed a certificate to the effect that he has been informed by the solicitor for the second respondent that the second respondent does not intend to appear at the hearing of this matter and will submit to the order of the Court save as to costs.  Is there any reason why the usual order should not be made, Mr Markus?

MR MARKUS:   No, your Honour.

HIS HONOUR:   You are familiar with the usual order?

MR ARCHIBALD:   Yes, your Honour, and it has been explained to the applicant and he agrees.

HIS HONOUR:   So you have no opposition?

MR ARCHIBALD:   No, your Honour.

HIS HONOUR:   In that matter I will make the usual order.

At 11.23 am Re Minister for Immigration and Multicultural and Indigenous Affairs and Others; Ex parte Applicants S86/2003 was called.

MS B. RAYMENT:   I appear for the first respondent, your Honour.  (instructed by Sparke Helmore)

THE INTERPRETER:   I am the interpreter.

HIS HONOUR:   You are an interpreter in Spanish?

THE INTERPRETER:   Yes.

HIS HONOUR:   Could you call Applicant S86/2003.  While that is being done, I should say that the Deputy Registrar has certified that he has been informed by the solicitor for the second and third respondents that they do not intend to appear at the hearing of this matter and will submit to the order of the Court save as to costs.  Assuming there is no appearance, is there any objection to the usual order?

MS RAYMENT:   No, your Honour, only that the first‑named applicant is actually a child.  The second‑named applicant is the mother who has brought proceedings before the Tribunal.

COURT OFFICER:   No appearance, your Honour.

HIS HONOUR:   Yes.  That is presumably a problem that can be fixed up in the Federal Court.

MS RAYMENT:   Yes, your Honour.

HIS HONOUR:   The solicitor appearing for the Minister has drawn attention to the fact that one of the applicants is a child and, in effect, that the record needs to be remedied in that respect.  I think that point is sound.  The Court will make the usual order in this case subject to allowing the applicant 14 days within which to apply to have the orders set aside.  I direct the Registrar to communicate with the applicant by certified mail in the terms indicated in earlier orders.

Now, there is no other matter in the list?  The Court will adjourn.

AT 11.26 AM THE MATTERS WERE CONCLUDED