Callover, Sydney

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney

CALLOVER OF 198 IMMIGRATION
MATTERS

GAUDRON J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON THURSDAY 6 FEBRUARY, 2003 AT 9.30 AM

HER HONOUR: Before calling the list it might be useful if I make a short statement, which is this, that on Tuesday last, 4 February, the Court gave judgment in the matter of Plaintiff S157 of 2002 v The Commonwealth. It was held in that case that the definition of “privative clause decision” in Part 8 of the Migration Act 1958 (Cth) refers to decisions involving neither a failure to exercise jurisdiction, nor an excess of the jurisdiction conferred by the Act. Accordingly, neither section 474 nor section 486A of the Act upon their proper construction bars or limits the exercise of the jurisdiction of this Court where it is alleged that there has been 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, the matters are listed today to enable the parties to show cause why I should not order that the proceedings now pending in this Court and shortly to be called, which were initiated after the coming into operation of the privative clause provisions of 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 that matter, and to the extent to which other allegations are made, any questions about the jurisdiction in the Federal Court to hear and determine those allegations will, at least in the first instance, be matters for that court to determine.

I would ask my associate, before I call the list, to hand out proposed orders that counsel, legal representatives and others can look at. I think then we could call the matter listed in block one.

MR J. BASTEN, QC: Your Honour, might I test your Honour’s patience perhaps for the last time and ask if we could deal with these matters in a slightly different order. I ask that because we have cracked the code for the listing order and I just wondered if it could be ‑ ‑ ‑

HER HONOUR: Which block do you wish – you might be testing my patience because I have ‑ ‑ ‑

MR BASTEN: If I am, I will not do it.

HER HONOUR: No. Which block do you wish to have called first? I presume it is only one block.

MR BASTEN: Block seven. It is because I am in matter No 1, which is in a slightly different category. It is being discontinued.

HER HONOUR: Then before I have the list called, is it convenient to call all the matters in block seven at once?

MR BASTEN: Yes, your Honour.

At 9.40 am Matters No S264 of 2001, Re: Minister for Immigration and Multicultural Affairs; Ex parte Applicants S264/2001; No S499 of 2002, Re: Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Tuncok were called.

MR J. BASTEN, QC: I appear for the prosecutor in the first of those matters, your Honour. (instructed by Christopher Levingston & Associates)

MR A. MARKUS: If your Honour pleases, I seek leave to appear for the Minister in both of those matters. (of the Australian Government Solicitor)

HER HONOUR: I do not think you need leave, Mr Markus. I think you appear as of right.

MR MARKUS: Thank you, your Honour. I am saying that because, strictly speaking, these are ex parte proceedings still.

HER HONOUR: I see, thank you.

MR BASTEN: Did your Honour want appearances in the other matter too?

HER HONOUR: No, I just wanted to make sure there were no parties for whom certificates had been filed, thank you.

MR BASTEN: The matter is one in which a visa has been issued. The matter is being discontinued. There will be a notice of discontinuance filed shortly.

HER HONOUR: That is in both of them?

MR BASTEN: No, in No 1, S264 of 2001. Could it simply be stood over to allow that to happen?

HER HONOUR: Well, I will just strike the matter out of the list, if that is ‑ ‑ ‑

MR BASTEN: Thank you.

HER HONOUR: What about the second matter?

MR D.J. PRINCE: Your Honour, I appear for the prosecutor in that matter. (of Christopher Levingston & Associates)

HER HONOUR: Yes, thank you, Mr Prince.

MR PRINCE: Your Honour, the proposed orders are perfectly suitable in this matter.

HER HONOUR: Thank you very much. In that case, I will make orders in matter S499 of 2002 in accordance with the draft orders which have been distributed.

MR PRINCE: I am sorry, your Honour. I am assuming my friend agrees with that course.

MR MARKUS: I think I would have said something if I did not, your Honour.

HER HONOUR: Yes, thank you, Mr Markus. Yes, very well, thank you. I think then we go back to block one, do we?

At 9.43 am Matter No S293 of 2002, Re: Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Maleau was called.

MS A.A. COTTER-MOROZ: I appear for the prosecutor, your Honour. (instructed by Ramrakha Jenkins)

MR A. MARKUS: I appear for the Minister. (of the Australian Government Solicitor)

HER HONOUR: Yes, thank you.

MS COTTER-MOROZ: Your Honour, the orders as proposed are perfectly suitable and the prosecutor wishes those orders to be made.

MR MARKUS: We agree with that, your Honour.

HER HONOUR: Very well. In matter S293 of 2002 orders will be made in accordance with the proposed orders earlier circulated. Block two.

At 9.43 am Matters No S294 of 2002, Plaintiff S294/2002 v The Commonwealth & Others and S295 of 2002, Plaintiff S295/2002 v The Commonwealth & Others were called.

MR A.A. TEES: I appear for both the plaintiffs, your Honour. (of AAT Legal)

MR A. MARKUS: If your Honour pleases, I appear for the first and third defendants. (of the Australian Government Solicitor)

HER HONOUR: Who is the second defendant? I am sorry, if you would just assist me with that, Mr Markus.

MR MARKUS: Your Honour, the second defendant is Australasian Correctional Management Pty Limited. They are separately represented.

HER HONOUR: Is there anybody in Court representing Australasian Correctional Services Management Pty Limited? Mr Markus and Mr Tees, it seems there is no appearance at this stage for Australasian Correctional Management Pty Limited. Perhaps I could ask whether either of you gentlemen oppose the making of orders as proposed.

MR MARKUS: My clients do not, your Honour. In fact, we say that that is the appropriate course. I should say, your Honour, these are essentially damages claims. They really have very little, if anything, to do with the two judgments that this Court has recently given. There are some procedural difficulties, but these are matters that clearly can be remitted pursuant to section 44(2A) of the Judiciary Act as the Commonwealth is a party and we say should be remitted to the Federal Court.

HER HONOUR: Mr Tees, do you object to that course?

MR TEES: Not in principle, your Honour, except to say, to be perfectly honest, we have not had enough time to assess the effect of the recent judgments. The only aspect of the prayers in the statement of claim which may be affected by it is the aspect delaying the departure of the plaintiffs pending the outcome of the damages claims in this Court, your Honour. Personally, I am of the view that the Federal Court could deal with that aspect of it, but there are some who disagree with me.

HER HONOUR: Who disagrees with you?

MR TEES: Well, counsel’s preliminary opinion was that only the High Court may have the power to intervene, but I am not at all certain of that in light of the judgments of the other day.

MR MARKUS: Your Honour, can I just very briefly respond to it this way. On remittal pursuant to section 44(2A) the Federal Court would be exercising this Court’s jurisdiction, so the issue would not arise. If this Court has the power, so does the Federal Court on remittal. Whether the orders are appropriate or not, I do not wish to take your Honour’s time up with that.

HER HONOUR: Yes. Well, that would seem to be right, would it not, Mr Tees?

MR TEES: On the face of it, yes, your Honour.

HER HONOUR: Well, at this stage we have no appearance for Australasian Correctional Management Pty Limited and it would seem to me appropriate that the matters be remitted to the Federal Court and I will indicate now that I would make that order unless, when inquiries are made by the Registry of those who entered an appearance on behalf of Australasian Correctional Management Pty Limited indicate that they oppose that course, the order will be made without need for you to attend further. I will formally list those matters again at the end. Yes, call block three.

At 9.49 am Matters No S29 of 2002, Re: Refugee Review Tribunal & Another, Ex parte Applicant S29/2002; No S30 of 2002, Re: Refugee Review Tribunal & Another, Ex parte Applicant S30/2002; No S49 of 2002, Re: Refugee Review Tribunal & Another, Ex parte Applicant S49/2002; No S50 of 2002, Re: Refugee Review Tribunal & Another, Ex parte Applicant S50/2002; No S51 of 2002, Re: Refugee Review Tribunal & Another, Ex parte Applicant S51/2002; No S52 of 2002, Re: Refugee Review Tribunal & Another, Ex parte Applicant S52/2002; No S54 of 2002, Re: Refugee Review Tribunal & Another, Ex parte Applicant S54/2002; No S56 of 2002, Re: Refugee Review Tribunal & Another, Ex parte Applicant S56/2002; No S57 of 2002, Re: Refugee Review Tribunal & Another, Ex parte Applicant S57/2002; No S58 of 2002, Re: Refugee Review Tribunal & Another, Ex parte Applicant S58/2002; No S59 of 2002, Re: Refugee Review Tribunal & Another, Ex parte Applicant S59/2002; No S63 of 2002, Re: Refugee Review Tribunal & Another, Ex parte Applicant S63/2002; No S64 of 2002, Re: Refugee Review Tribunal & Another, Ex parte Applicant S64/2002; No S65 of 2002, Re: Refugee Review Tribunal & Another, Ex parte Applicant S65/2002; No S66 of 2002, Re: Refugee Review Tribunal & Another, Ex parte Applicant S66/2002; No S67 of 2002, Re: Refugee Review Tribunal & Another, Ex parte Applicant S67/2002; No S68 of 2002, Re: Refugee Review Tribunal & Another, Ex parte Applicant S68/2002; No S69 of 2002, Re: Refugee Review Tribunal & Another, Ex parte Applicant S69/2002; No S70 of 2002, Re: Refugee Review Tribunal & Another, Ex parte Applicant S70/2002; No S71 of 2002, Re: Refugee Review Tribunal & Another, Ex parte Applicant S71/2002; No S72 of 2002, Re: Refugee Review Tribunal & Another, Ex parte Applicant S72/2002; No S74 of 2002, Re: Refugee Review Tribunal & Another, Ex parte Applicant S74/2002; No S75 of 2002, Re: Refugee Review Tribunal & Another, Ex parte Applicant S75/2002; No S77 of 2002, Re: Refugee Review Tribunal & Another, Ex parte Applicant S77/2002; No S78 of 2002, Re: Refugee Review Tribunal & Another, Ex parte Applicants S78/2002; No 79 of 2002, Re: Refugee Review Tribunal & Another, Ex parte Applicant S79/2002; No S80 of 2002, Re: Refugee Review Tribunal & Another, Ex parte Applicant S80/2002; No S81 of 2002, Re: Refugee Review Tribunal & Another, Ex parte Applicants S81/2002; No S82 of 2002, Re: Refugee Review Tribunal & Another, Ex parte Applicant S82/2002; No S91 of 2002, Re: Refugee Review Tribunal & Another, Ex parte Applicant S91/2002; No S92 of 2002, Re: Refugee Review Tribunal & Another, Ex parte Applicant S92/2002; No S93 of 2002, Re: Refugee Review Tribunal & Another, Ex parte Applicant S93/2002; No S94 of 2002, Re: Refugee Review Tribunal & Another, Ex parte Applicant S94/2002; No S95 of 2002, Re: Refugee Review Tribunal & Another, Ex parte Applicant S95/2002; No S96 of 2002, Re: Refugee Review Tribunal & Another, Ex parte Applicant S96/2002; No S97 of 2002, Re: Refugee Review Tribunal & Another, Ex parte Applicants S97/2002; No S98 of 2002, Re: Refugee Review Tribunal & Another, Ex parte Applicant S98/2002; No S99 of 2002, Re: Refugee Review Tribunal & Another, Ex parte Applicant S99/2002; No S100 of 2002, Re: Refugee Review Tribunal & Another, Ex parte Applicants S100/2002; No S101 of 2002, Re: Refugee Review Tribunal & Another, Ex parte Applicant S101/2002; No S102 of 2002, Re: Refugee Review Tribunal & Another, Ex parte Applicant S102/2002; No S103 of 2002, Re: Refugee Review Tribunal & Another, Ex parte Applicant S103/2002; No S105 of 2002, Re: Refugee Review Tribunal & Another, Ex parte Applicant S105/2002; No S110 of 2002, Re: Refugee Review Tribunal & Another, Ex parte Applicant S110/2002; No S138 of 2002, Re: Refugee Review Tribunal & Another, Ex parte Applicant S138/2002; No S141 of 2002, Re: Refugee Review Tribunal & Another, Ex parte Applicant S141/2002; No S143 of 2002, Re: Refugee Review Tribunal & Another, Ex parte Applicant S143/2002; No S144 of 2002, Re: Refugee Review Tribunal & Another, Ex parte Applicant S144/2002; No S160 of 2002, Re: Refugee Review Tribunal & Another, Ex parte Applicant S160/2002; No S179 of 2002, Re: Refugee Review Tribunal & Another, Ex parte Applicant S179/2002; No S182 of 2002, Re: Refugee Review Tribunal & Another, Ex parte Applicant S182/2002; No S183 of 2002, Re: Refugee Review Tribunal & Another, Ex parte Applicant S183/2002; No S197 of 2002, Re: Refugee Review Tribunal & Another, Ex parte Applicant S197/2002; No S198 of 2002, Re: Refugee Review Tribunal & Another, Ex parte Applicant S198/2002; No S199 of 2002, Re: Refugee Review Tribunal & Another, Ex parte S199/2002; No S219 of 2002, Re: Refugee Review Tribunal & Another, Ex parte S219/2002; No S220 of 2002, Re: Refugee Review Tribunal & Another, Ex parte S220/2002; No S221 of 2002, Re: Refugee Review Tribunal & Another, Ex parte S221/2002; No S222 of 2002, Re: Refugee Review Tribunal & Another, Ex parte Applicants S222/2002; No S224 of 2002, Re: Refugee Review Tribunal & Another, Ex parte Applicants S224/2002; No S248 of 2002, Re: Refugee Review Tribunal & Another, Ex parte Applicant S248/2002; No S254 of 2002, Re: Refugee Review Tribunal & Another, Ex parte Applicant S254/2002 and No S12 of 2003, Re: Refugee Review Tribunal & Another, Ex parte Applicant S12/2003 were called.

MR B.M. ZIPSER: In all of those matters, your Honour, I appear for the applicant and/or prosecutor. (instructed by Adrian Joel & Co)

MR J. BASTEN, QC: I appear for the active respondent in each of those matters except the last, your Honour. (instructed by Australian Government Solicitor)

MR A. MARKUS: If your Honour pleases, I appear for the second respondent Minister in the last of those matters. (of the Australian Government Solicitor)

HER HONOUR: Now, I hold a certificate from the Deputy Registrar, who certifies that she has been informed by the solicitor for the Refugee Review Tribunal that the Tribunal will submit to any order of the Court save as to costs in these matters. What do you say about the proposed orders, Mr Zipser?

MR ZIPSER: Your Honour, for all of those matters the applicant/prosecutor is satisfied with the proposed orders.

MR BASTEN: I think that is the position of the respondents in all of those matters, your Honour.

MR MARKUS: Yes, your Honour.

HER HONOUR: Yes, Mr Markus concurs. Very well. In each of those matters there will be orders in the form of the proposed orders circulated earlier this morning. Do you have another matter to mention?

MR BASTEN: May I, your Honour? Block fourteen. Mr Williams and I are in those matters.

HER HONOUR: You would like me to call that one?

MR BASTEN: Those two.

HER HONOUR: Yes.

At 9.58 am Matters No S42 of 2002, Re: Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Wong and No S243 of 2002, Re: Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Wong were called.

MR N.J. WILLIAMS: Your Honour, in those matters I appear with MR R.B. WILSON for the prosecutor, in each case the same prosecutor. (instructed by Peter Leung)

MR J. BASTEN, QC: And I appear for the respondent in each case, your Honour. (instructed by Blake Dawson Waldron)

HER HONOUR: There are no parties other than those that are presently represented, are there?

MR WILLIAMS: No, your Honour.

HER HONOUR: No, very well. Thank you.

MR WILLIAMS: Your Honour, in each case we have prepared short minutes. Apart from your Honour’s pro forma short minutes, there is one order that we seek and that is granting leave to file in Court an amended draft order nisi to put the proceedings into form before they return to the Federal Court. I seek that leave and hand up short minutes. We would seek only order 1 in each of those together with the draft order nisi in each case. Apart from that, we would seek the standard orders that your Honour has proposed this morning.

HER HONOUR: Do you consent to that, Mr Basten?

MR BASTEN: Yes, your Honour.

HER HONOUR: Very well. By consent leave is granted to the prosecutor in each of those matters, they being S42 of 2002 and S243 of 2002, to file an amended draft order nisi which has been handed to me and placed with the papers in each of these matters and in addition thereto there will be orders in accordance with the form of orders as proposed and earlier circulated to counsel.

MR WILLIAMS: May it please the Court.

MR BASTEN: If the Court pleases.

HER HONOUR: Thank you. You may be excused while we revert back to – yes, I think we can do block four.

At 10.00 am Matter No S302 of 2002, Re: Minister for Immigration and Multicultural Affairs & Others; Ex parte Applicant S302/2002 was called.

MR C.R. de ROBILLARD: In that matter I appear for the applicant, your Honour.

HER HONOUR: Yes, Mr de Robillard.

MR de ROBILLARD: We consent to the draft orders proposed by the Court, your Honour. (instructed by the applicant)

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

HER HONOUR: Yes.

MR CHAMI: Yes, I concur with my friend’s assessment.

HER HONOUR: Yes. Well, before making the orders, I should note that I hold a certificate from the Deputy Registrar, who certifies that she has been informed by the solicitor for the named members of the Refugee Review Tribunal in this matter that the named members of the Tribunal will submit to any order of the Court save as to costs. That having been noted, then I will make orders in accordance with the proposed orders earlier this day circulated to counsel.

MR de ROBILLARD: If the Court please.

HER HONOUR: Thank you very much. Block five.

MR D.H. GODWIN: I am sorry, your Honour, before the whole list is called through ‑ ‑ ‑

HER HONOUR: Yes.

MR GODWIN: ‑ ‑ ‑ I am appearing for the plaintiff in, I think, all of those matters but because there are so many of them and we were only given the Court list this morning we are still verifying our instructions, that we are in fact appearing for all of those matters. So if this block could be stood down the list while we complete that.

HER HONOUR: Certainly. I will stand it until the end of the list. Is that convenient?

MR GODWIN: Yes, your Honour.

HER HONOUR: It will not be later than midday though because I am supposed to be in Canberra this afternoon, if that is okay.

MR GODWIN: Thank you, your Honour.

HER HONOUR: If there is a problem about instructions, then we will think of something then.

MR GODWIN: Thank you, your Honour.

HER HONOUR: Thank you. Would you call block six then, please.

At 10.02 am Matter No S416 of 2002, Re: Minister for Immigration and Multicultural and Indigenous Affairs & Another; Ex parte Applicant S416/2002 was called.

MR D.H. PATCH: Your Honour, I appear for the prosecutor. (instructed by Allens Arthur Robinson)

MR A. MARKUS: If your Honour pleases, I appear for the respondents. (of the Australian Government Solicitor)

HER HONOUR: Again, I hold the certificate from the Deputy Registrar, who certifies that she has been informed by the solicitors for the Refugee Review Tribunal that the Tribunal will submit to any order of the Court save as to costs.

MR PATCH: We agree with the proposed orders, your Honour.

HER HONOUR: Yes, thank you. And you?

MR MARKUS: Yes, your Honour.

HER HONOUR: Yes. In that event, in matter S416 of 2002 there will be orders in accordance with the proposed orders as earlier circulated to counsel. Thank you. Block eight, thank you.

At 10.04 am Matters No S22 of 2003, Plaintiff S22/2003 v The Commonwealth of Australia, No S31 of 2003, Plaintiff S31/2003 v The Commonwealth of Australia, S418 of 2002, Plaintiff S418/2002 v Commonwealth and No S419 of 2002, Plaintiff S419/2002 v Commonwealth were called.

MS F.A. ROGERS: Your Honour, I appear for the plaintiff in all of those proceedings. (instructed by G. Shelton & Associates)

MS D.J. WATSON: I appear for the defendant in all of those proceedings. (instructed by Australian Government Solicitor)

HER HONOUR: There are no other parties other than those that are represented, are there?

MS ROGERS: No, your Honour. Your Honour, in relation to the first two of those proceedings, we seek orders that the matters be discontinued on 10 April 2003.

MS WATSON: Your Honour, if I could just explain. These matters were commenced by writ of summons. We have had discussions between the parties about these matters and what we thought was the appropriate way to deal with them is that the respondent has agreed to the matters being discontinued on that date with no order as to costs and in the meantime, if the plaintiffs then wish to commence other proceedings, either in this Court or another court, then that gives them the opportunity to do so before that time. The writs at the moment just seek bare declarations ‑ ‑ ‑

HER HONOUR: I cannot make an order discontinuing the proceedings. What I can do is I can stand the matters out of the list for the purpose of a notice of discontinuance being filed on or before 10 April. Would that be ‑ ‑ ‑

MS ROGERS: Your Honour, that sounds like a suitable course.

MS WATSON: That would be convenient, your Honour.

HER HONOUR: Very well. They will be stood out of the list to enable parties to file a notice of discontinuance by – did you say the 4^th?

MS WATSON: 10 April.

HER HONOUR: Yes, by 10 April 2003. Thank you.

MS ROGERS: Your Honour, in relation to the matters No 149 and 150 in block eight, the parties are agreed that those matters ‑ ‑ ‑

HER HONOUR: Wait a minute, 149 and ‑ ‑ ‑

MS ROGERS: I apologise.

HER HONOUR: Yes, 149 and 150 in the list. Yes, thank you.

MS ROGERS: Yes, your Honour. In relation to those proceedings, the parties are agreed that they should be discontinued.

MS WATSON: And I understand that there are some consent orders which have been sent to me but I have not received them yet. So, again, perhaps the appropriate order is that they be stood out of the list.

HER HONOUR: Very well. Again, the order will simply be that the matters are stood out of the list to enable the filing of a notice of discontinuance – or other consent order I will say.

MS ROGERS: Thank you, your Honour.

MS WATSON: Thank you, your Honour.

HER HONOUR: Thank you. Block nine, if they could be called.

At 10.07 am Matters No S440 of 2002, Re: Minister for Immigration and Multicultural and Indigenous Affairs and Another; Ex parte Applicants S440/2002 and No S191 of 2002, Re: Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicant S191/2002 were called.

MR L. BOCCABELLA: Your Honour, I appear for the prosecutors. (instructed by the applicants)

MR A. MARKUS: If your Honour pleases, I appear in the first of those matters for the Minister. (of the Australian Government Solicitor)

MS D.J. WATSON: I appear in the second of those matters for the Minister. (instructed by Australian Government Solicitor)

HER HONOUR: In the first of those matters, that being matter S440 of 2002, the Deputy Registrar certifies that she has been informed by the solicitor for the Refugee Review Tribunal that the Tribunal will submit to any order of the Court save as to costs. I think there are no parties other than those presently represented in matter S191, is that – yes, thank you.

MR BOCCABELLA: Your Honour, the prosecutors agree that the orders are appropriate for these matters.

HER HONOUR: Yes, thank you, and the respondents both do?

MR MARKUS: Yes, your Honour.

MS WATSON: Your Honour, the only thing that I do wish to raise is that the application for orders nisi was fully argued before Justice Kirby on the last occasion. He made a specific ruling that one of the arguments which was raised before him was unarguable and would not be fit for remittal, but I do not think that that argument, nor indeed any of the other arguments that were raised before him, are properly reflected in the orders nisi. There were certainly some arguments that were raised within the course of the argument. So there is a slight difficulty with S191.

HER HONOUR: Yes. In S440 I will make orders in accordance with the proposed orders earlier circulated to counsel. S191 I will hear from Mr Boccabella.

MR BOCCABELLA: Yes, your Honour, I appeared before his Honour Justice Kirby in that matter. His Honour in the end only made an intimation and I recall foreshadowing an argument that this was a matter that could be remitted notwithstanding other limitations as perceived at that time. I would submit the appropriate course would be to make the orders as proposed by this Court ‑ ‑ ‑

HER HONOUR: I think what Ms Watson is suggesting is you might like to amend the grounds in your order nisi before I remit. Is that ‑ ‑ ‑

MS WATSON: Yes, your Honour.

MR BOCCABELLA: Yes. Well, perhaps if we could have leave to that effect within the time scale that your Honour has intimated here we will do that.

HER HONOUR: Yes. Perhaps it is simpler if I note Mr Boccabella’s undertaking to amend the grounds of the draft order nisi by 21 February ‑ ‑ ‑

MR BOCCABELLA: Yes, your Honour.

HER HONOUR: ‑ ‑ ‑ and that having been noted, I will make orders as in the form of orders as proposed and circulated to counsel earlier in the day. So in S191 – so there will be no confusion – I note the undertaking of Mr Boccabella to amend the draft order nisi – well, perhaps it is an order nisi. Was an order nisi made?

MS WATSON: No, your Honour. Justice Kirby stood the matter over generally pending the outcome of the decisions on Tuesday.

HER HONOUR: To amend the draft order nisi by 21 February 2003. Thank you. Block ten.

At 10.11 am Matter No S214 of 2002, Re: Minister for Immigration and Multicultural and Indigenous Affairs & Another; Ex parte S214/2002 was called.

MR M.G. VINCENT: If the Court pleases, I appear for the prosecutor. (instructed by Griffins)

MR S. B. LLOYD: I appear for the Minister. (instructed by Sparke Helmore)

HER HONOUR: In this matter also I hold a certificate from the Deputy Registrar who certifies that she has been informed by the solicitor for the Administrative Appeals Tribunal that the Tribunal will submit to any order of the Court save as to costs. Can we make orders as proposed in these matters?

MR VINCENT: Yes, thank you.

HER HONOUR: Yes.

MR LLOYD: If it please the Court, your Honour.

MR VINCENT: Perhaps if we could also have leave to amend the draft order nisi.

HER HONOUR: You have not got an amendment?

MR VINCENT: Not to hand up at the moment, no.

HER HONOUR: I think what I should do is give you leave to file an amended draft order nisi, the amended draft order to be filed not later than 21 February 2003, and otherwise make orders in accordance with the proposed orders earlier circulated to counsel.

MR VINCENT: Thank you.

HER HONOUR: Thank you very much. Block eleven.

At 10.13 am Matter No S306 of 2002, Re: Minister for Immigration and Multicultural and Indigenous Affairs & Another; Ex parte Burgess was called.

MR R.F. WILKINS: Your Honour, I appear for the prosecutor in this matter. MR M.J. CRANITCH appears as my leader, but at the moment he does not appear. (instructed by Bruce Dennis)

HER HONOUR: I see. They are like that, are they not? I am sorry.

MR A. MARKUS: Your Honour, I appear for the Minister. (of Australian Government Solicitors)

HER HONOUR: There are no parties other than those represented?

MR WILKINS: That is so, your Honour, yes. Your Honour, we consent to the matter being remitted, but I gather my friend does not.

HER HONOUR: I see. We will hear from him. He opposes it.

MR MARKUS: Your Honour, we do not say that this matter cannot be remitted.

HER HONOUR: Cannot? You do not say ‑ ‑ ‑

MR MARKUS: We do not say cannot be remitted.

HER HONOUR: Yes.

MR MARKUS: We say that the matter is capable of being remitted. We say that the matter raises significant issues which will not be finally determined in the Federal Court. We think that the better course is for this matter is to proceed in the High Court.

HER HONOUR: Could you indicate to me the nature of the issues that you say are raised?

MR MARKUS: Yes, your Honour.

HER HONOUR: You will forgive me, but I had not any detailed knowledge of these matters yet.

MR MARKUS: I understand, your Honour. Your Honour, this is a matter which in some ways is fairly similar to the matter which the High Court determined approximately a year ago, in Re: Patterson Ex parte Taylor.

HER HONOUR: Yes.

MR MARKUS: It raises the aliens issue. There are some factual differences. This particular applicant prosecutor was 17 years old when he came into Australia and he has left the country on a number of occasions. But the feature that makes this matter important and interesting in a sense is that the applicant prosecutor was removed from Australia some time ago ‑ I should say prior to the judgment in Re: Patterson Ex parte Taylor. There is a question to how the principles enunciated by the High Court in Re: Patterson Ex parte Taylor can be applied to circumstances such as this particular ‑ ‑ ‑

HER HONOUR: Are there any factual issues in contention?

MR MARKUS: Your Honour, what I thought would be the appropriate course is for the parties to try to come up with some agreed statement of facts and for the matter to come back before this Court in the not too distant future with a view of trying to see if a case can be stated to the High Court. I should mention, your Honour, there are a couple of other matters in the High Court which seek to test different aspects of the issues following the Re: Patterson Ex parte Taylor judgment of this Court. There is a matter called Shaw in which his Honour Justice Gummow stated a case recently to the Full Court, and if I recall correctly there is another matter in Perth which is also before the Court. It may be that ‑ ‑ ‑

HER HONOUR: You would want all three to go together?

MR MARKUS: I do not want to go that far, your Honour, because that obviously depends on a number of issues.

HER HONOUR: Counsel, yes.

MR MARKUS: I am simply mentioning to your Honour that there are other matters raising issues regarding the aliens power, and this is a case which we think at this stage should stay in this Court, and the parties should explore the possibility of agreeing to some facts and maybe consenting to some orders so as to ensure that the matter can be best dealt with by a Full Court of this Court.

MR WILKINS: Your Honour, there are no factual issues between the parties. It is purely a question of law. I was agnostic about whether the matter stayed in this Court or was remitted to the Federal Court until my friend mentioned other matters. If it is going to be combined with other matters then obviously it has to stay here.

HER HONOUR: What I think I should do is stand the matter over to be re‑listed upon your application, Mr Markus, before a single Judge for further direction. So if you were to apply to have it re‑listed on two days notice to the other side, then the matter could come back before a single Judge for further consideration. Is that convenient?

MR WILKINS: Yes, your Honour.

MR MARKUS: It is yes, your Honour. Thank you very much.

HER HONOUR: Very well. This matter is simply stood over to be re‑listed upon notice from the solicitor or the legal representatives for the Minister for Immigration and Multicultural Affairs. So that comes to block twelve.

At 10.19 am Matters No S446 of 2002, Plaintiff S446/2002 v The Commonwealth of Australia & Another, No S491 of 2002, Plaintiff S491/2002 v The Commonwealth of Australia & Another, No S360 of 200 Plaintiff S360/2002 v The Commonwealth of Australia, No S361 of 2002, Plaintiff S361/2002 v The Commonwealth of Australia, No S381 of 2002, Plaintiff S381/2002 v The Commonwealth of Australia, No S397 of 2002, Plaintiff S397/2002 v The Commonwealth of Australia, No S415 of 2002, Plaintiff S415/2002 v The Commonwealth of Australia & Another were called.

MR M.T. JONES: Your Honour, I appear for the plaintiffs in those matters. (of Michael Jones)

MS D.J. WATSON: Your Honour, I appear for the Commonwealth in those matters. (instructed by the Australian Government Solicitor)

HER HONOUR: Yes, thank you, Ms Watson. I have a certificate from the Deputy Registrar who certifies that in matters S415/2002, S446/2002 and S491/2002 the solicitor for the principal member of the Refugee Review Tribunal has informed her that that member will submit to any order of the Court save as to costs. I think in the other matters the parties are all represented. There are no parties ‑ ‑ ‑

MS WATSON: Yes, that is correct.

HER HONOUR: Yes, thank you.

MS WATSON: Your Honour, in these matters, like the earlier matters I mentioned before your Honour which involved writs of summonses, the parties have agreed, or the defendant has agreed that if the plaintiffs discontinue by 10 April 2002 ‑ ‑ ‑

HER HONOUR: 2003.

MS WATSON: Sorry, 2003 with no order as to costs, that will dispose of the matters and the appropriate orders would be that the matters just stand out of the list.

HER HONOUR: Is that ‑ ‑ ‑

MR JONES: Yes, your Honour, that is ‑ ‑ ‑

HER HONOUR: Thank you, Mr Jones. Each of those matters will be stood out of the list to enable a notice of discontinuance to be filed by 10 April 2003.

MS WATSON: Thank you, your Honour.

HER HONOUR: Yes, thank you. Block thirteen.

At 10.22 am Matter No S407/2002, Re: Minister for Immigration and Multicultural affairs; Ex parte Huynh was called.

MR N.C. POYNDER: Your Honour, I appear for the prosecutor. (instructed by Anne O’Donoghue & Associates)

MR A. MARKUS: If Your Honour pleases, I appear for the Minister. (of the Australian Government Solicitor)

HER HONOUR: Thank you. And there are no other parties besides ‑ thank you.

MR POYNDER: Your Honour, the prosecutor would consent to the proposed orders.

MR MARKUS: And the Minister does, your Honour.

HER HONOUR: Very well. In that matter, S407/2002 orders will be made in accordance with the proposed orders earlier circulated to counsel. We might come back and see whether there is any luck with Mr Godwin.

MR GODWIN: Thank you, your Honour, for that. In fact we have confirmed our instructions now for the whole of the list of block five.

HER HONOUR: In that case if it is suitable I will have block 5 called.

MR GODWIN: I am grateful to your Honour.

At 10.23 am Matters No S437 of 2002, Plaintiff S437/2002 v The Commonwealth of Australia & Another, No S439 of 2002, Plaintiff S439/2002 v The Commonwealth of Australia & Another, No S454 of 2002, Plaintiff S454/2002 v The Commonwealth of Australia & Another, No S458 of /2002, Plaintiff S458/2002 v The Commonwealth of Australia & Another, No S459 of 2002, Plaintiff S459/2002 v Commonwealth of Australia & Another, No S460 of 2002, Plaintiff S460/2002 v The Commonwealth of Australia & Another, No S466 of 2002, Plaintiff S466/2002 v The Commonwealth of Australia & Another, No S468 of 2002, Plaintiff S468/2002 v The Commonwealth of Australia & Another, No S476 of 2002, Plaintiff S476/2002 v The Commonwealth of Australia, No S9 of 2003, Alapide v The Commonwealth of Australia & Another, No S17 of 2003, Plaintiff S17/2003 v The Commonwealth of Australia & Another, No S23 of 2003, Plaintiff S23/2003 v The Commonwealth of Australia & Another, No S25 of 2003 Plaintiff S25/2003 v The Commonwealth of Australia & Another, No S26 of 2003, Plaintiff S26/2003 v The Commonwealth of Australia & Another, No S269 of 2002, Plaintiff S269/2002 v The Commonwealth of Australia, No S271 of 2002, Plaintiff S271/2002 v The Commonwealth of Australia, No S273 of 2002, Plaintiffs S273/2002 v The Commonwealth of Australia, No S274 of 2002, Plaintiff S274/2002 v The Commonwealth of Australia, No S275 of 2002, Plaintiff S275/2002 v The v Commonwealth of Australia, No S280 of 2002, Plaintiff S280/2002 v The Commonwealth of Australia, No S281 of 2002, Plaintiff S281/2002 v The Commonwealth of Australia, No S282 of 2002, Plaintiff S282/2002 v The Commonwealth of Australia, S284 of 2002, Plaintiff S284/2002 v The Commonwealth of Australia, No S285 of 2002, Plaintiff S285/2002 v The Commonwealth of Australia, No S286 of 2002, Plaintiff S286/2002 v The Commonwealth of Australia, No S287 of 2002, Plaintiff S287/2002 v The Commonwealth of Australia, No S288 of 2002, Plaintiff S288/2002 v The Commonwealth of Australia, No S289 of 2002, Plaintiff S289/2002 v The Commonwealth of Australia, No S290 of 2002, Plaintiff S290/2002 v The Commonwealth of Australia, No S291 of 2002 Plaintiffs S291/2002 v The Commonwealth of Australia, No S297 of 2002, Plaintiff S297/2002 v The Commonwealth of Australia, No S299 of 2002, Plaintiffs S299/202 v The Commonwealth of Australia, No S300 of 2002, Plaintiff S300/2002 v The Commonwealth of Australia, No S301 of 2002, Plaintiff S301/2002 v The Commonwealth of Australia, No S303 of 2002, Plaintiffs S303/2002 v The Commonwealth of Australia, No S312 of 2002, Plaintiff S312/2002 v The Commonwealth of Australia, No S313 of 2002, Plaintiff S313/2002 v The Commonwealth of Australia, No S314 of 2002, Plaintiff S314/2002 v The Commonwealth of Australia, No S320 of 2002, Plaintiffs S320/2002 v The Commonwealth of Australia, No S328 of 2002, Plaintiff S328/2002 v The Commonwealth of Australia, No S329 of 2002, Plaintiff S329/2002 v The Commonwealth of Australia, No S330 of 2002, Plaintiff S330/2002 v The Commonwealth of Australia, No S331 of 2002, Plaintiff S331/2002 v The Commonwealth of Australia, No S332 of 2002, Plaintiff S332/2002 v. The Commonwealth of Australia, No S333 of 2002, Plaintiff S333/2002 v The Commonwealth of Australia, No S337 of 2002, Plaintiff S337/2002 v The Commonwealth of Australia, No S338 of 2002, Plaintiff S338/2002 v The Commonwealth of Australia, No S348 of 2002, Plaintiff S348/2002 v The Commonwealth of Australia, No S350 of 2002, Plaintiff S350/2002 v The Commonwealth of Australia, No S351 of 2002, Plaintiff S351/2002 v The Commonwealth of Australia, No S352 of 2002, Plaintiff S352/2002 v The Commonwealth of Australia, No S359 of 2002, Plaintiffs S359/2002 v The Commonwealth of Australia & Another, No S362/2002, Malik v The Commonwealth of Australia, No S364 of 2002, Plaintiff S364/2002 v The Commonwealth of Australia, No S365 of 2002, Plaintiff S365/2002 v The Commonwealth of Australia & Another, No S373 of 2002, Plaintiff S373/2002 v The Commonwealth of Australia & Another, No S374 of 2002, Plaintiff S374/2002 v The Commonwealth of Australia & Another, No S388 of 2002, Baig v The Commonwealth of Australia & Another, No S409/2002, Plaintiff S409/2002 v The Commonwealth of Australia & Another, No S410 of 2002, Plaintiff S410/2002 v The Commonwealth of Australia & Another, No S411 of 2002, Asfar v The Commonwealth of Australia & Another, No S412 of 2002, Plaintiff S412/2002 v The Commonwealth of Australia & Another, No S413 of 2002, Plaintiff S413/2002 v The Commonwealth of Australia & Another, No S424 of 2002, Plaintiff S424/2002 v The Commonwealth of Australia & Another, No S425 of 2002, Plaintiff S425/2002 v The Commonwealth of Australia & Another, No S426 of 2002, Plaintiff S426/2002 v The Commonwealth of Australia & Another, No S427 of 2002, Plaintiff S427/2002 v The Commonwealth of Australia & Another, No S430 of 2002, Plaintiff S430/2002 v The Commonwealth of Australia & Another were called.

MR D.H. GODWIN: I appear for the plaintiffs in all of those matters, your Honour. (instructed by Parish Patience Immigration Lawyers)

MS D.J. WATSON: I appear for the Commonwealth in all of those matters, your Honour, also. (instructed by the Australian Government Solicitor)

HER HONOUR: Yes. I hold a certificate from the Deputy Registrar who certifies that she has been informed by the solicitor for the Refugee Review Tribunal that in the various matters which have been called and in which it is a party, it will submit to any order of the Court save as to costs. Further, that she has been informed by the solicitor for the Migration Review Tribunal that in relation to the matters just called, in which it is a party, that Tribunal will submit to any order of the Court save as to costs.

MR GODWIN: Sorry, your Honour, I am just getting some last minute instructions.

HER HONOUR: That is all right.

MR GODWIN: In relation to all of the matters except for the matter of Alapide, which is ‑ excuse me, your Honour.

HER HONOUR: That gentleman or lady probably does not have a name anymore unfortunately.

MR GODWIN: No. Sorry, Your Honour. The position is that with all the matters this block is in the same position as the previous block in that a notice of discontinuance and no order as to costs will be lodged in the Registry. If the matters could be stood out of the list.

HER HONOUR: In all of them?

MS WATSON: Yes, your Honour.

MR GODWIN: In all of them.

HER HONOUR: Very well. In that case all the matters in block five will be stood out of the list to enable a notice of discontinuance to be filed on or before 10 April 2003.

MR GODWIN: May it please the Court.

MS WATSON: Thank you, your Honour.

HER HONOUR: Thank you. I will just make the note. We will go back, then, I think, to block 15.

At 10.31 am Matters No S256 of 2002, Re: Minister for Immigration and Multicultural and Indigenous Affairs & Ors: Ex parte Applicants S256/2002, No S311 of 2002, Re: Minister for Immigration and Multicultural and Indigenous Affairs & Ors: Ex parte Applicants S311/2002, S266 of 2002, Re: Minister for Immigration and Multicultural and Indigenous Affairs & Ors; Ex parte Applicants S266/2002 were called.

MR P.M. GWOZDECKY: Your Honour, I appear for the applicant/prosecutors in all three matters. (instructed by the applicants)

MR A. MARKUS: If your Honour pleases, for the Minister in the first two of those three matters, that is S256 of 2002 and S311 of 2002. (of the Australian Government Solicitor)

HER HONOUR: Thank you.

MS D.J. WATSON: I appear for the Minister in S266 of 2002, your Honour. (instructed by Australian Government Solicitor)

HER HONOUR: Thank you. I hold the somewhat lengthy certificate from the Deputy Registrar in relation to these matters. She certifies that in matter No S256 of 2002 she has been informed by the solicitor for the named officers of the Department of Immigration and Multicultural and Indigenous Affairs and the named members of the Refugee Review Tribunal that the named officers and named members will submit to any order of the Court, save as to costs.

In matter No S266 of 2002 she certifies that she has been informed by the named member of the Refugee Review Tribunal that that member will submit to any order of the Court, save as to costs.

In matter No S311 of 2002 she has been informed by the solicitor for the named member of the Refugee Review Tribunal that that member will also submit to any order of the Court, save as to costs.

Yes, Mr Gwozdecky.

MR GWOZDECKY: Thank you, your Honour. Your Honour, I would like to hand up an amended draft order nisi in those three matters. Perhaps you should take the matters that Mr Markus is involved in, 256 and ‑ ‑ ‑

HER HONOUR: I am sorry, I cannot hear you for the moment.

MR GWOZDECKY: I would like leave of the Court to hand up a draft amended order nisi in matter S266 of 2002 and S311 of 2002 and also in matter No S256 of 2002.

HER HONOUR: Yes, thank you.

MR GWOZDECKY: The applicant/prosecutor will consent to the proposed orders, save one aspect of S256 of 2002 which is a matter in relation to the Minister and that particular ground we would propose, as in the draft order nisi, remain in the High Court. That is ground 7 in amended draft order nisi, No S256 of 2002.

HER HONOUR: No S256. Yes, Mr Markus. Perhaps we need to deal with these separately, do we?

MR MARKUS: I think we do, your Honour.

HER HONOUR: Could we deal with matter No S256, first? Is that convenient?

MR MARKUS: Yes, thank you.

HER HONOUR: Yes.

MR MARKUS: Your Honour, I have had limited opportunity to study the amended draft order nisi but there is a couple of comments I would like to make in relation to what is being proposed. First, your Honour, I should say that my client’s attitude in relation to the matters I am instructed in is that this Court can and should remit as much as these proceedings as is possible. There appear to be some difficulties, just looking at this amended draft order nisi, your Honour.

First, I note that the parties named in this amended draft order nisi are different to the parties named in the original draft order nisi. I also note that the third respondent is said to be a party to these proceedings in her capacity as the principal member of the Refugee Review Tribunal. She is not in fact the principal member of the Refugee Review Tribunal, Mr Steven Karas is, to the best of my knowledge the principal member of the Refugee Review Tribunal.

The fourth respondent is – well, I am not quite sure what that means, your Honour. There is no named delegate. There is some suggestion that the delegate – of somebody who is not identified otherwise.

HER HONOUR: Would it not be sufficient just to have – it just seems to me it is sufficient to refer to the Refugee Review Tribunal and if the delegate – if it is a delegate of the Minister then it is sufficient just to name the Minister as a party, is it not?

MR MARKUS: I would have thought so.

HER HONOUR: But any way, we will ‑ ‑ ‑

MR MARKUS: Your Honour, just turning to the substantive issues. As the original draft order nisi was pleaded there were two decisions that the original draft order nisi sought to challenge. One was the decision of the Refugee Review Tribunal dated 26 February 2001. I do not have all of the documents with me but this time it appears that the RRT decision is said to be dated 20 March 2001. I do not think much depends on this, your Honour.

Insofar as the application seeks to challenge a decision of the Refugee Review Tribunal it should be able to be admitted. In relation to order 3, however, I do have some concerns, your Honour. A writ of mandamus is sought ‑ directed against all four respondents. If only the decision of the Refugee Review Tribunal is subject to challenge then the writ of mandamus ought not be sought against the first or fourth respondents.

The concern I have really is not that that is misconceived but what is really involved in the challenge because, as I mentioned, the original draft order nisi sought to challenge a decision made pursuant to section 417 of the Act, or, if I recall correctly, not to consider the exercise of the discretion available. In paragraph 7 of the grounds there is a reference to section 48B of the Migration Act which is also a discretionary power available to the Minister.

Your Honour, of course, would be aware that in the recent judgment of this Court in S157 of 2002 the Court made certain observations in relation to section 476(1), in particular, and the way that a primary decision is defined with reference to a privative clause decision in section 476(6) and in view of the Court’s comments my client, as a general proposition, accepts that a primary decision could be remitted by this Court to the Federal Court to ascertain that the decision is a privative clause decision, as this Court has held that term to apply, but nothing in subsection (2) which excludes the Federal Court’s jurisdiction under powers which are called non‑compellable discretionary powers refers to a privative clause decision.

So, it would appear to us that the Federal Court or the Federal Magistrate’s Court do not have power to deal with challenges made under those sections. Of course, your Honour, there is an additional question of whether this Court ‑ ‑ ‑

HER HONOUR: Whether it is challengeable, in any real sense.

MR MARKUS: Your Honour, in the other judgment, of course, at paragraph 48, the majority, and at paragraph 100, your Honour, joining with his Honour Justice Kirby, made it clear that those challenges are misconceived, in any event, but my difficulty with this document is that I do not know what this does, what is it that it seeks to challenge other than the RRT’s decision. Insofar as it seeks to challenge any decision made pursuant to section 48B of the Act, that part could not be remitted, your Honour.

HER HONOUR: You need to think about this a little further, do you not, Mr Gwozdecky?

MR GWOZDECKY: I think I do, your Honour. Just in reply to my friend, just to clarify things, the substantive decision of the RRT – he mentioned two dates. It was mentioned in the draft order nisi of 20 March 2001 and he said the decision of 26 February. It was handed down on 26 February but the date of the decision was 20 March, so there is nothing ‑ ‑ ‑

MR MARKUS: It is the other way around, your Honour. My friend is correct. I am just looking at it.

MR GWOZDECKY: So, there is not – I think that should clarify that. The ground 7, 48B case, is based on the fact that when the grounds in that – that is pleaded as that the RRT – it was an invalid application and in that respect the 48B request to the Minister to make a new protection visa application which was not exercised and not refused was invalid. Now, that is just an alternative way, I suppose.

HER HONOUR: Well, it is not just an alternative way, is it?

MR GWOZDECKY: No. That was actually originally pleaded in the original order nisi.

HER HONOUR: Yes, I know it was but what you really have to consider is whether in the light of the decision in – is it 157 ‑ ‑ ‑

MR MARKUS: I think it is in 134, your Honour.

HER HONOUR: 134.

MR MARKUS: Paragraphs 48 and 100.

HER HONOUR: Whether you can proceed with that claim at all. If you can proceed with it – well, if you intend to proceed with it then it may well be that there will have to be remitter of part and standover of part, which is not necessarily a satisfactory means of proceeding. Why do I not at this stage say that I give you leave – I am just dealing with S256 and this is just discussion, not definite – that I give you leave to file a draft order nisi by 21 February and leave to have this matter restored to the list on two days notice to see what course should then be taken. That is in S256. At first instance it looks as though you ‑ ‑ ‑

MR GWOZDECKY: Yes, I think that is a proper order, your Honour.

HER HONOUR: What would you say to that course?

MR MARKUS: I am in your Honour’s hands. I am a bit concerned about the cost of appearances time and again.

HER HONOUR: Yes, I – but there really is not – well, perhaps you can – well, could I say – well, we do not know what we are remitting, you see.

MR MARKUS: No, that is my concerning, your Honour. But I must say, your Honour, my instructions are, strictly speaking, that if there are proceedings currently before this Court which could be remitted only in part because another part of the proceeding seeks to challenge those ministerial discretions, as it were, that are not reviewable by the Federal Court or the Federal Magistrates Court, I was going to ask your Honour to refuse those parts of the applications for order nisi because in light of the High Court’s recent judgment in S134 it just seems to us that that cannot go anywhere and there is nothing to say about ‑ ‑ ‑

HER HONOUR: Yes, but I am going to have to give him a bit of natural justice in that regard which is usually regarded as a ‑ ‑ ‑

MR MARKUS: Well, two days of reading the judgment should have been enough, your Honour.

HER HONOUR: How much natural justice would you like, Mr Gwozdecky?

MR GWOZDECKY: I think your Honour’s proposed order would satisfy the content of natural justice.

HER HONOUR: No, but it does not satisfy Mr Markus. He says I should strike out ground 7 now as unarguable, basically, and then make orders remitting it. Do you want to think about that?

MR GWOZDECKY: Yes, I would like to think about that. I would oppose that order.

HER HONOUR: You have only a very short time to think about it. Let me just ask this. Are the other matters, S266 and S311 in the same position?

MR MARKUS: I do not believe so, your Honour. I think that S311 originally sought to challenge three decisions, one of which we could not really understand but we think it may have been a bridging visa decision. There was a section 417 decision that was also being challenged in the original draft order nisi. That does not appear to be the case on my quick reading of the amended draft order nisi. It seems that what is sought to be challenged this time is limited to the decision of the Refugee Review Tribunal dated 5 November 1998.

I should say, your Honour, that there appears to be some difficulty with the parties, again.

HER HONOUR: I see, that the person named as the second and third respondent is not only the same but is dead.

MR MARKUS: He is, your Honour. Of course, we would say that the appropriate course would be simply to name the Refugee Review Tribunal, if anybody needs to be named, and I think his Honour Justice McHugh has commented on the appropriateness of proceeding in that fashion.

HER HONOUR: Yes.

MR MARKUS: But, your Honour, there are respondents disappearing and appearing and, again, the third respondent may have had that capacity at some stage but he is certainly not the principal member of the Refugee Review Tribunal at present. He was not previously a party in that capacity so it seems that that is misconceived, your Honour. But, otherwise, in sorting out the parties, we think that this matter could be remitted in its entirety, as presently pleaded. It may be that paragraph 5 of the orders sought is again slightly misconceived because I am not quite sure what sort of an injunction could issue against the second and third respondents in that respect but that is something we can sort out in the Court below, your Honour.

HER HONOUR: Very well. That is the same in S266, as well? I am sorry. Ms Watson.

MS WATSON: Your Honour, it is basically the same. I have had a quick look at the proposed draft order nisi in the other matter and it would appear that it is in a fairly similar situation to S311 in that there are problems with the naming of parties and there are problems with the orders sought against particular parties but essentially there was a claim or a challenge to a purported failure to exercise a discretion under section 417 in the original draft order nisi. That has been dropped and it would appear that all that has been left is then a challenge to a Refugee Review Tribunal decision.

HER HONOUR: Very well. Mr Gwozdecky, in matters S266 and S311 what I propose is this that you should have leave to file amended draft orders nisi in each of those matters, such amended orders nisi to be filed by 21 February 2003 and the amendments to properly take account of the parties. You have heard what has been said about that. And that in those two matters, as well, orders be made remitting the matters to the Federal Court in accordance with the proposed orders that were earlier circulated to counsel. Matter S256 I am going to stand down in the list until 12 noon for you to have a further look at the matter. Is that all right?

MR GWOZDECKY: That is fine. Thank you, your Honour.

HER HONOUR: Thank you. It will stand down until 12 noon. Very well. Is that suitable?

MR MARKUS: Yes, your Honour. Thank you very much.

HER HONOUR: We now go to block sixteen.

At 10.53 am Matter No S336 of 2002, Re: Minister for Immigration and Multicultural and Indigenous Affairs & Anor; Ex parte Lorenzo was called.

MR S.D. RARES, SC: If your Honour pleases, I appear with my learned friend, MS R.A. PEPPER, for the applicant. (instructed by Teakle Ormsby Conn)

MS D.J. WATSON: I appear for the Minister. (instructed by Australian Government Solicitor)

HER HONOUR: Yes, thank you.

MR RARES: Your Honour, this matter raises another issue, besides the two ‑ ‑ ‑

HER HONOUR: Wait a moment. Very well, thank you. You appear for the Minister and the Commonwealth, do you not?

MS WATSON: Yes, I am sorry, your Honour, yes.

HER HONOUR: Thank you.

MR RARES: Your Honour, the question which we submit is suitable to make the matter remain in this Court is it raises the issue that your Honour and Chief Justice Mason and Justice Deane touched on but did not decide in Teo, namely, whether the bests interests of the children are, as a matter of common law, a primary consideration. In the material the Minister considered he was told that he could have regard to but was not bound, according to Federal Court decisions, by directions that he gives under section 499 of the Act, one of which was to say that under the directions the best interests of the children were a primary consideration. In our submission, the question is whether or not ‑ ‑ ‑

HER HONOUR: What sort of case is this?

MR RARES: This is a man who has lived in Australia since he was aged 15 in 1980. He has had a history of petty crime involved with drug addiction ‑ ‑ ‑

HER HONOUR: It is a deportation case?

MR RARES: Yes, section 501, failed the character test. He has two children both of whom are Australian citizens, one was a 14 year old and one was a nine year old and so the question really is whether or not what the Court discussed.

HER HONOUR: That does not seem to me to raise any great constitutional or important issue. What can it not be dealt with by the Federal Court and you have always you rights to seek special leave from a Federal Court decision.

MR RARES: Given that the Court has not decided that question but has touch on it ‑ ‑ ‑

HER HONOUR: There are a lot of decisions – a lot of questions and issues this case has to decide.

MR RARES: Yes. In our submission, that was what would make it suitable to remain.

HER HONOUR: But Teo – am I wrong in thinking Teo had – is what we call a legitimate expectations case?

MR RARES: Yes.

HER HONOUR: You are talking about something else. You are talking about the nature of relevant considerations, are you not, because the guidelines have been changed, have they not?

MR RARES: Yes, but in Teo Chief Justice Mason and Justice Deane in their joint judgment and your Honour, in your judgment, said, it had not been argued in Teo’s Case and therefore was not decided whether as a matter of common law the best interest of the child were a primary consideration for all decision‑makers. Nobody else has decided ‑ the matter is a matter of decision. The Court looked at it in U v U last year.

HER HONOUR: It sounds as though it not having been argued anywhere we might have the benefit of a decision of an intermediate court on it. It sounds like the sort of thing we would ordinarily welcome, does it not?

MR RARES: There are decisions of the European Court of Human Rights dealing with these issues, but obviously not in this country.

HER HONOUR: Yes.

MR RARES: That was the point that we would submit might cause the Court to retain it, otherwise it is a matter that clearly is able to be remitted in the courts with the draft orders. Those are our submissions, your Honour.

HER HONOUR: Yes. What do you say, Ms Watson.

MS WATSON: Our position is that it is a matter that should be remitted. There is no reason why it should not. The proposed orders are appropriate, in the circumstances.

HER HONOUR: It seems to me this matter ought properly be remitted. Even if it does have an interesting issue, this Court might be assisted by reading the views of others. Accordingly, I will make orders in that matter in accordance with the orders proposed and earlier circulated. Yes, thank you.

MR RARES: Thank you, your Honour.

HER HONOUR: Block 17.

At 10.58 Matters No S233 of 2002, Re: Refugee Review Tribunal v Anor; Ex parte Applicant S233/2002, No S370 of 2002, Re: Minister for Immigration and Multicultural and Indigenous Affairs & Or; Ex parte Applicant S370/2002, No S422 of 2002. Re: Minister for Immigration and Multicultural and Indigenous Affairs & Anor; Ex parte Applicant S422/2002, No S33/2003 Re: Minister for Immigration and Multicultural and Indigenous Affairs & Ors; Ex parte Applicant S33/2003, No S267 of 2002, Re: Minister for Immigration and Multicultural and Indigenous Affairs & Ors; Ex parte Applicants S267/2002, No S485 of 2002, Re: Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicant Ali Firlayis, No S387/2002, Re: Minister for Immigration and Multicultural and Indigenous Affairs & Ors, Ex parte Applicant S387/2002, No 432 of 2002, Re: Minister for Immigration and Multicultural and Indigenous Affairs & Ors; Ex parte Applicant S432/2002, No S462 of 2002, Re: Minister for Immigration and Multicultural and Indigenous Affairs & Anor; Ex parte Applicant S462/2002, No S463 of 2002, Re: Minister for Immigration and Multicultural and Indigenous Affairs & Ors; Ex parte Applicant S463/2002, No S464 of 2002, Re: Minister for Immigration and Multicultural and Indigenous Affairs & Ors; Ex parte Applicant S464/2002, No S487 of 2002, Re: Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicant S487/2002, No S511 of 2002, Re: Minister for Immigration and Multicultural and Indigenous Affairs & Ors; Ex parte Applicant S511/2002, No S276 of 2002, Re: Minister for Immigration and Multicultural and Indigenous Affairs & Ors; Ex parte Applicant S276/2002, No S421 of 2002, Re: Minister for Immigration and Multicultural and Indigenous Affairs Ors; Ex parte Applicant S421/2002, No S461 of 2002, Re: Minister for Immigration and Multicultural and Indigenous Affairs & Ors; Ex parte Applicant S461/2002, No S465 of 2002, Re: Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Kumar, No S469 of 2002 Re: Minister for Immigration and Multicultural and Indigenous Affairs & Ors; Ex parte Applicant S469/2002 were called.

MR R.W. KILLALEA: If the Court pleases, I appear for the applicants. (instructed by Low & Associates, Morgan Ardino & Co and Ian D. Graham & Associates)

MR S.B. LLOYD: If the Court pleases, I appear on S387/2002, S432 ‑ ‑ ‑

HER HONOUR: I think it would be sufficient to say you appear in those matters in which your name appears in the list.

MR LLOYD: Indeed, your Honour, that is what I appear in.

HER HONOUR: Yes, thank you. The same, Mr Markus for you, is that correct?

MR MARKUS: If your Honour pleases (of the Australian Government Solicitor)

HER HONOUR: I mean, if there is something wrong with the list, tell me.

MR MARKUS: No, the list is correct, your Honour.

MR Z. CHAMI: I appear in the balance of the matters that Mr Lloyd and Mr Markus do not appear, your Honour. (instructed by Clayton Utz)

MS D.J. WATSON: Except for the one that I appear in, your Honour. (instructed by the Australian Government Solicitor)

HER HONOUR: Yes, thank you. I can take it that you appear as set out in the list under the heading “Block Seventeen”. Now, I should indicate that I have a certificate from the Deputy Registrar who certifies that in matter No S462 of 2002 she has been informed by the solicitor for the named delegate that the delegate will submit to any order of the Court save as to costs; similarly, that in S469 of 2002 there are certificates in respect that the named delegate of the Department and the named member of the Refugee Review Tribunal to the effect that the named delegate and named member each submit to any order of the Court save as to costs.

She further certifies in matter No S387 of 2002 that the named members of the Refugee Review Tribunal and the Registrar of the Federal Magistrates Court and the named members of the Refugee Review Tribunal and the Registrar of the Federal Magistrates Court will submit to any order of the Court save as to costs.

Otherwise, she certifies that in the matters which have been called and to which the Refugee Review Tribunal is a party or named members of the Refugee Review Tribunal are parties, that she has been informed that they will submit to any order of the Court save as to costs.

Yes, Mr Killalea.

MR KILLALEA: Your Honour, we seek to amend five matters, your Honour, in which the Registrar of the Federal Court is named as the fourth respondent. They are matters No 387/2002, S421/2002, S432/2002, S464/2002 and S511/2002.

HER HONOUR: It is to delete the ‑ ‑ ‑?

MR KILLALEA: The Registrar of the Federal Court as the fourth respondent, so to delete the fourth respondent.

HER HONOUR: Very well. In respect of those matters and for that purpose I will give you leave to amend the pleadings by 21 February 2003.

MR KILLALEA: If the Court pleases. The applicants otherwise accede to the proposed orders.

HER HONOUR: Thank you.

MR LLOYD: The Minister does in my matters too, your Honour.

HER HONOUR: Thank you.

MR MARKUS: And in my matters.

MR CHAMI: We consent to the remittal, your Honour.

HER HONOUR: Yes, and in yours?

MS WATSON: The same, your Honour.

HER HONOUR: Thank you. Then in matters No S387/2002, S421/2002, S432/2002, S464/2002 and S511/2002, leave is granted to the plaintiff to amend the pleadings to delete the Registrar of the Federal Court as a party and, in addition thereto, there will be orders made as set out in the proposed orders earlier circulated to counsel. We can go to block 18, thank you.

At 11.05 am Matter No S196 of 2002, Re Minister for Immigration and Multicultural and Indigenous Affairs & Anor; Ex parte Du was called.

MR A. MARKUS: If your Honour pleases, I am the solicitor for the Minister in that matter. (of the Australian Government Solicitor)

Your Honour, could I also mention that matter on behalf of MR T. REILLY, counsel for the applicant/prosecutor.

HER HONOUR: Yes.

MR MARKUS: Your Honour, the parties agree that whilst this is a primary decision that – I am sorry, your Honour?

HER HONOUR: No, no, we are just sorting out whether you had announced appearance for both the Minister and the delegate and I think you ‑ ‑ ‑

MR MARKUS: I am sorry, your Honour, and I should have announced an appearance for the respondents.

HER HONOUR: Yes.

MR MARKUS: Yes, and I note, your Honour, that I have been entrusted with Mr Reilly’s signed certificate regarding the callover.

But, your Honour, in relation to this matter, we know that this is a primary decision that is sought to be challenged, but in view of the High Court judgment in S157/2002 and, in particular, what the Court has said at paragraphs 93 and following, we are of the view, that is, all of the parties, that the matter can be remitted to the Federal Court and we consent to the proposed orders.

HER HONOUR: Yes, and you have Mr Reilly’s consent to that?

MR MARKUS: I have Mr Reilly’s consent. He has even signed the form for my benefit but, your Honour, I do have his consent.

HER HONOUR: Thank you. It is sufficient if I say in matter S196/2002 orders will be made in accordance with the proposed orders earlier circulated to counsel.

MR MARKUS: Thank you, your Honour.

HER HONOUR: Thank you. Block 19, thank you.

At 11.08 am Matters No S321 of 2002, Re: Refugee Review Tribunal; Ex parte Applicant S321/2002, No S13 of 2003, Re: Refugee Review Tribunal & Anor; Ex parte Applicant S13/2003 and No S14 of 2003, Re: Refugee Review Tribunal & Anor; Ex parte Applicant S14/2003 were called.

HER HONOUR: Do I have an Indonesian Interpreter in Court?

MR THIAM HOK LEE, sworn as interpreter:

HER HONOUR: Thank you, Mr Lee. Now, I have called three matters by numbers. There should have been an appearance, I think, by three persons but I see two at the Bar table. Do you know if there is a third one here, I am sorry, or do they know if there is a third person who requires an Indonesian interpreter who is to come in from Villawood today?

THE INTERPRETER: May I approach to ask?

HER HONOUR: Yes, if you would please. It looks as though they are here now.

THE INTERPRETER: I am only a friend of this person.

HER HONOUR: Mr Lee, what it is proposed to do ‑ and I would be very grateful if you could tell the gentlemen who have come in for these proceedings in Indonesian – is to send their matters to the Federal Court where they can be heard in due course.

Could you ask them if they have any objection to that?

THE INTERPRETER: No, I have no objection.

HER HONOUR: Yes, thank you. Mr Markus, what do you say about that?

MR A. MARKUS: Thank you, your Honour. I should just say I appear in all three matters for the Minister. (of the Australian Government Solicitor)

HER HONOUR: Just before we go on, I have also, I think, almost lost it. Do we have certificates, I am sorry? You probably did. Thank you. Yes, I do hold the certificate from the Deputy Registrar who states that he has been informed in each of these matters by the solicitor for the Refugee Review Tribunal that the Tribunal will submit to any order of the Court save as to costs.

MR MARKUS: Your Honour, I would like to briefly say something about matter No S321 of 2002. Your Honour, I do not know whether your Honour has at hand an affidavit sworn by Ms Johanna Selth on 28 January this year? Your Honour, essentially it attaches various correspondence, but I will not ask your Honour to read that because it is very lengthy, but could I just summarise the position very briefly this way: the draft order nisi filed in this matter names only one respondent, that is, the Refugee Review Tribunal. Perhaps of greater concern, your Honour, is that the only order sought in the draft order nisi is certiorari. Whilst certiorari is available as relief in the ancillary jurisdiction of this Court, this Court does not have original jurisdiction under section 75(v) of the Constitution to grant certiorari. Much of that correspondence, your Honour, attached to the affidavit attempts to deal with that issue.

HER HONOUR: Yes. Apparently the gentleman concerned has had some trouble with the English language. Why ‑ ‑ ‑

MR MARKUS: I understand that, your Honour. I have just been handed a document is where I am leading to.

HER HONOUR: Yes.

MR MARKUS: I do not have a copy of it and this, I presume, is the original, but perhaps I could hand this up to your Honour. Yes, it is in matter No S321/2002. Your Honour, I am not sure that that cures the problem.

HER HONOUR: Not entirely but ‑ ‑ ‑

MR MARKUS: I am just not quite sure how much more assistance our office can be to the applicant to ensure that there is an application of a draft order nisi that properly seeks to involve this Court’s jurisdiction. We are concerned, your Honour, if the matter is remitted, it may not be able to be amended, that is the concern.

HER HONOUR: Yes, if I amend the order nisi to name the Minister as a respondent ‑ ‑ ‑

MR MARKUS: Thank you, your Honour.

HER HONOUR: ‑ ‑ ‑ and to seek mandamus and prohibition in respect of – do we know what decision it is?

MR MARKUS: Yes, your Honour, there is an affidavit which annexes a decision of the Refugee Review Tribunal made on 9 August last year and that appears to be the decision that is the subject of this proceeding.

HER HONOUR: Could I just ask: you have no objection to my amending it?

MR MARKUS: No, your Honour.

HER HONOUR: Could you explain to the gentleman who is known as S321, do you know that is?

THE INTERPRETER: No.

APPLICANT S321/2002 (through interpreter) That is me.

HER HONOUR: Would you ask him if that is his signature?

APPLICANT S321/2002 (through interpreter): Yes.

HER HONOUR: Thank you. Could you explain to him for me that his documents are not quite in order, but I can amend them if he agrees so that the matter can be remitted to the Federal Court. Does he agree?

THE INTERPRETER: I am asking whether nodding is a positive answer. Yes.

HER HONOUR: Yes, in matter S321 ‑ if you could tell this to the gentleman as I go ahead ‑ I will amend the draft order nisi to name as a respondent thereto the Minister for Immigration and Multicultural and Indigenous Affairs and to seek relief by way of mandamus and prohibition with respect to the decision of the Refugee Review Tribunal of 9 August 2002. The documents are to be treated as so amended.

MR MARKUS: Thank you, your Honour. I will take the order out and that will go down to the Federal Court with the other documents. Thank you.

HER HONOUR: Thank you. Now, is there any reason, Mr Markus, why we cannot make orders in respect of all these matters?

MR MARKUS: No, your Honour.

HER HONOUR: Thank you. It should be noted that the draft order nisi in S321/2002 is to be taken as amended in accordance with the indications in that regard made by me this morning. In each of the matters orders will be made remitting the matters to the Federal Court in accordance with the proposed orders earlier circulated in these matters.

Also, if you could explain to the gentlemen at the Bar table that all further proceedings will be in the Federal Court and I imagine that ‑ perhaps I can ask ‑ I think Mr Markus will file certain documents in this Court and the matters will then automatically go to the Federal Court. That is correct, is it not?

MR MARKUS: That is correct, your Honour, and the Federal Court in due will issue notices to proceed which will give a directions date.

HER HONOUR: The gentlemen will in due course hear from the Federal Court with respect to how their matters are to proceed in that Court. If they require information about the Federal Court, then perhaps they could be provided with details of the Federal Court. The Registrar of our Court, Ms Carlsund, if you could explain, will send to each of these gentlemen details of how they can make contact with the Federal Court if they so require.

Now, could you ask the gentlemen if any of them have any questions.

APPLICANTS S321/2002, S13/2003 and S14 of 2003 (through interpreter): No, I have none. No, I have none. No.

HER HONOUR: Thank you very much. So the orders are made and we will call the next lot of matters. You gentlemen may leave now. Thank you very much, Mr Lee, for assisting.

At 11.24 am Matters No S449 of 2002, Re: Minister for Immigration and Multicultural and Indigenous Affairs & Ors; Ex parte Applicant S449 of 2002 and No S494 of 2002, Re: Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicant S494 of 2002 were called.

HER HONOUR: Is there an Urdu interpreter in Court?

THE APPLICANTS appeared in person.

MR A. MARKUS: If your Honour pleases, I appear for the Minister in matter no S449 of 2002. (of the Australian Government Solicitor)

HER HONOUR: Thank you, Mr Markus. Could I swear the interpreter? I will note your appearance in due course, Mr Chami. Perhaps we will just swear the interpreter.

MR MATIN ABBAS, affirmed as interpreter:

HER HONOUR: Thank you, Mr Abbas, you may be seated for the moment. I note that Mr Markus appears in ‑ ‑ ‑

MR MARKUS: S449 of 2002.

HER HONOUR: Thank you, and Mr Chami in matter S494 of 2002. Could you ask the gentlemen at the Bar table if they are the persons whose cases have just been called.

THE INTERPRETER: Yes.

HER HONOUR: Yes. Now, could you also explain to them that the purpose of today’s proceedings is to remit their matters to the Federal Court for hearing and ask them if they have any objection to that course.

THE INTERPRETER: Yes.

HER HONOUR: They have an objection, or they are happy to have it?

THE INTERPRETER: We do not have any objection, but we do not have any solicitor and we do not have anybody to look after our case.

HER HONOUR: Yes.

THE INTERPRETER: At least we should be given some barrister.

HER HONOUR: I am in no position to give them a barrister today. When the matter goes to the Federal Court perhaps you can ask the Bar Association if they can make someone available then. Nothing is going to happen today other than make steps for their matters to be heard in due course, so nothing will affect them today, nothing will change today. In due course, if you could explain to this gentleman, our Registrar will provide them with the telephone number of the Bar Association to see if someone can help them.

Before we proceed further I should note that the Registrar certifies that she has been informed by the named members of the Refugee Review Tribunal in matter S449 of 2002 that those members will submit to any order of the Court, save as to costs. Thank you.

In your matter, Mr Markus, is there any reason why your matter cannot be remitted?

MR MARKUS: No, your Honour. The proposed orders appear to be appropriate.

HER HONOUR: Thank you, and Mr Chami?

MR CHAMI: I am in the same position, your Honour.

HER HONOUR: Yes, thank you, Mr Chami.

If you would tell the gentlemen who are at the Bar table that I propose to make orders sending their matters to the Federal Court and that Ms Carlsund, the Registrar of this Court, will forward them information as to the telephone number of the Federal Court and of the Bar Association so that they can see if the Bar Association can help them by finding a barrister pro bono and in due course they will hear from the Federal Court as to when their matters are to be called on.

Mr Markus and Mr Chami, I take it you will take all the steps necessary. The orders indicate that either side can, but I presume you will ‑ ‑ ‑

MR MARKUS: Of course, I will take care of them, your Honour; I will take charge of them.

MR CHAMI: In terms of my position, the order 3 which required at least the parties to submit an extra copy of the filed documents, it is usually the case, and I say this is no comment on the Court, but usually the applicant does not serve on the respondent all of the filed material; we only get part of that material, so I may be in a difficulty in terms of submitting another copy of the filed materials, because I do not ‑ ‑ ‑

HER HONOUR: I think we can lend it to you.

MR CHAMI: Thank you very much.

HER HONOUR: I am sorry, the real purpose of those orders is that the Court itself does not have the resources to do all that, but it will be lent to you.

MR CHAMI: Thank you, your Honour.

HER HONOUR: Yes. In each of these matters, if you will explain to these gentlemen, orders will be made in accordance with the earlier orders circulated in the Court and those orders will remit the matter to the Federal Court. Thank you very much, and thank you, Mr Abbas, for assisting the Court. Thank you, gentlemen. Just one moment, this has already been filed, this document.

If you could explain to them, when we are finished hearing these matters, when I am finished in Court, then this gentleman should go to the Registry and see either Ms Carlsund or her assistant, but it will have to wait until we are finished here. Thank you very much. Block 21.

At 11.30 am Matter No S200 of 2002, Re: Minister for Immigration and Multicultural and Indigenous Affairs & Anor; Ex parte Applicant S200 of 2002 was called.

MS D.J. WATSON: I appear for the Minister in that matter, your Honour. (instructed by Australian Government Solicitor)

HER HONOUR: Do I have Ms Maharaj, is it, and you are an interpreter? Would you come forward and be sworn thank you, Ms Maharaj.

MS NUTANS MAHARAJ, affirmed as interpreter:

HER HONOUR: Thank you, Ms Maharaj. Please be seated. I will need you to ask if there is in Court a person who has requested an interpreter of the Bengali language?

THE INTERPRETER: No, nobody, your Honour. It does not look like anybody ‑ ‑ ‑

HER HONOUR: It does not look like it. Ms Maharaj, we may have brought you out unnecessarily, for which I apologise, but I do thank you for your assistance in this regard. Thank you very much. You appear in this matter, Ms Watson, do you?

MS WATSON: I do, your Honour.

HER HONOUR: I have a certificate from the Deputy Registrar who certifies that she has been informed by the solicitor for the principal member of the Refugee Review Tribunal that the principal member of the Tribunal will submit to any order of the Court, save as to costs. I understand that the person whose application we are concerned with has not, in fact, contacted the Court in recent days. Do we know if the correspondence, in fact, got to the person?

THE COURT OFFICER: Yes, it was sent, but we have not received anything back from the applicant.

HER HONOUR: Was it sent by certified mail?

THE COURT OFFICER: No.

HER HONOUR: Do you know anything about the position of this?

MS WATSON: I do not, your Honour. Your Honour, this is a matter which your Honour actually heard the application for orders nisi and your Honour indicated that there was an arguable case for jurisdictional error but would stand the matter over until the decisions in S134 and S157 were handed down. The applicant at that stage had pro bono legal representation, but shortly after the application was heard I received notice from the solicitors who were on the record indicating that they no longer acted for the applicant and I have not received any further correspondence directly from the applicant since that time.

HER HONOUR: I think there is no reason why orders should not be made as proposed, is there, subject to allowing the applicant 14 days within which to apply to have the orders set aside.

MS WATSON: That would be appropriate, your Honour.

HER HONOUR: 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 drafts earlier circulated, to take effect, however, 14 days from the date of the letter and other dates to take effect 21 days thereafter.

MS WATSON: Thank you, your Honour.

HER HONOUR: I wonder if I just should say, to be on the safe side, liberty to either party to apply on seven days notice, just in case something miscarries in that process. Yes, thank you. Block 22.

At 11.40 am Matter No S448 of 2002, Re: Minister for Immigration and Multicultural and Indigenous Affairs & Ors; Ex parte Applicant S448 of 2002 was called.

HER HONOUR: You are a multi‑talented linguist, Ms Maharaj. We need not swear you again, thank you. You might just ascertain for me that the gentleman at the Bar table is the person whose matter has just been called.

THE INTERPRETER: Yes, your Honour.

HER HONOUR: Yes, thank you.

THE APPLICANT appeared in person.

MR S.B. LLOYD: I appear for the Minister, your Honour. (instructed by Blake Dawson Waldron)

Could you explain to the gentleman at the Bar table that the matter has been called on today to see if he has any objection to the matter proceeding to a hearing in the Federal Court.

THE INTERPRETER: No objection, your Honour.

HER HONOUR: Mr Lloyd, do you have any difficulty?

MR LLOYD: No, your Honour.

HER HONOUR: I will simply indicate at this stage that I will make orders in accordance with the orders proposed and earlier circulated in this matter. Could you explain to the gentleman that I have made orders that send the matter to the Federal Court, that Ms Carlsund will write to him today, or shortly, indicating how he can make contact with the appropriate people in the Federal Court and also the Bar Association if he wishes to seek their assistance. In due course he will hear from the Federal Court telling him when his matter will be called on. Thank you. Thank you, again, Ms Maharaj. Thank you, sir. We can now proceed to block 23.

At 11.44am Matters No S264 of 2002, Re: Refugee Review Tribunal & Anor; Ex parte Applicant S264 of 2002 and No S442 of 2002, Re: Minister for Immigration and Multicultural and Indigenous Affairs & Anor; Ex parte Applicant S264 of 2000 and No S451 of 2002, Re: Minister for Immigration and Multicultural and Indigenous Affairs & Ors; Ex parte Applicant S451 of 2002 were called.

THE APPLICANTS appeared in person.

MR EDILBERT RAJADURAI, sworn as interpreter:

HER HONOUR: Thank you, Mr Rajadurai. Would you ask the gentlemen at the Bar table in the Tamil language if they are the persons whose cases have just been called.

THE INTERPRETER: Yes.

HER HONOUR: Yes, thank you. Now, Mr Lloyd, you appear in the first two, 264 and 442. Thank you. Mr Chami, you are in no 451 of 2002?

MR CHAMI: Yes, thank you, your Honour, and might I indicate that the applicant in 451 is the gentleman sitting at the extreme end of the Bar table.

HER HONOUR: Thank you, and I have a certificate from the Deputy Registrar who certifies that she has been informed by the solicitor for the Refugee Review Tribunal that in S264 of 2002 it will submit to any order of the Court, save as to costs, and that she has been informed by the named members of the Refugee Review Tribunal in S451 of 2002 that they will submit to any of the Court, save as to costs.

If you would be kind enough to explain to the gentlemen at the Bar Table that the matter has been called on today to see if they have any objections to their matters being sent to the Federal Court for hearing and determination.

THE INTERPRETER: In this gentleman’s case, I need some legal assistance to argue my case in the Federal Court, your Honour.

HER HONOUR: If you could explain to him I cannot provide him with legal assistance, but I can get the Registrar to give him details of the Bar Association which might be able to provide him with pro bono legal representation, but the Court cannot give him legal assistance as such.

THE INTERPRETER: What is the name of that person?

HER HONOUR: Ms Carlsund will write back to them later. She will write to them shortly, I will give them that.

THE INTERPRETER: Yes, thank you, your Honour.

HER HONOUR: Mr Lloyd, Mr Chami, any reason why orders cannot be made as proposed?

MR LLOYD: Not in my applications, your Honour.

MR CHAMI: Thank you, your Honour, same position.

HER HONOUR: Yes, very well. I will indicate now that I make orders in accordance with the orders proposed, and if you could now explain to the gentleman, I have made an order that their matters go to the Federal Court.

THE INTERPRETER: Thank you, your Honour.

HER HONOUR: Ms Carlsund will write to them shortly, giving them details of the persons they can contact in the Federal Court and details of the Bar Association so that they can approach that association for pro bono representation.

THE INTERPRETER: Will the information be given by post or after these proceedings here?

HER HONOUR: By post, and they will also hear from the Federal Court in due course as to when their cases will be called on.

THE INTERPRETER: Thank you, your Honour.

HER HONOUR: Thank you. The gentleman are free to leave and I thank you for your assistance, Mr Rajadurai. We will go now to block 24.

At 11.50 am Matter No S443 of 2002, Re: Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicant S443/2002 was called.

MR LLOYD: Your Honour, I appear for the respondent in this matter. (instructed by Blake Dawson Waldron)

HER HONOUR: You appear in this matter, Mr Lloyd, and we do not even have a second party for whom there could be a certificate. You are all alone at this stage, Mr Lloyd, but we are seeing if the parties are ‑ ‑ ‑

MR LLOYD: There is a relatively quick answer to this matter, your Honour. I mean, there are two points. One is perhaps it is the only matter your Honour cannot remit because of section 476(2), but in due course I will seek to make an application that it be dismissed because of what was decided in S134. It is only a section 417 matter and ‑ ‑ ‑

HER HONOUR: Yes, I understand. Just let me find out if there is any appearance. I should note there appears to be no appearance for the prosecutor in this matter and the Registrar informs me that there has been no contact between that person and the Registry – well, that there has been no response. I think the appropriate course, Mr Lloyd, is simply to stand it out of the list with liberty to you to restore on seven days notice seeking whatever orders you think appropriate.

MR LLOYD: Certainly, your Honour. I suspect that my client would certainly prefer to see the matter dismissed, because he may well have a bridging visa which is extant pending the determination of the matter.

HER HONOUR: Well, I am sure that is right, but I unfortunately am in no position to deal with – I am sorry, I am just not in any position to deal with it today. So, I think at this stage, I can simply stand it out of the list and certify for the attendance of counsel. I am sorry I cannot deal with it today. Block 25.

At 11.53 am Matters No S325 of 2002, Plaintiffs S325/2002 v Refugee Tribunal & Another and No S10 of 2003, Re: Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicant S10 of 2003 were called.

HER HONOUR: Now, I take it, you are Ms Chitra Sharma and you can translate from English to Hindi and vice versa.

THE INTERPRETER: That is right.

HER HONOUR: Do you all need ‑ ‑ ‑

PLAINTIFF S325/2002: No, your Honour. I am the second plaintiff in matter S325 of 2002. I am representing all plaintiffs in this matter.

CHITRA SHARMA, affirmed as interpreter:

HER HONOUR: Thank you. Now, at this stage, we need not trouble you, but if you would remain there for the moment.

THE INTEPRETER Yes.

HER HONOUR: Now, in S325 the second plaintiff, you seek leave to appear for yourself and ‑ ‑ ‑

PLAINTIFF S325/2002: And the other two plaintiffs. The third plaintiff is a minor, is under the age of 18. I am his mother and tutor so I am appearing on his behalf. My husband here is the first plaintiff and he agrees that I appear on his behalf.

HER HONOUR: Very well. Leave is granted.

PLAINTIFF S325/2002: Thank you, your Honour.

HER HONOUR: Can I just come to the next matter, because I called it on. Ms Frances Milne, is that you? You seek leave to appear?

MS F. MILNE: Yes, it is. I think the applicant is happy to answer for himself, but I came in case he decided that that was too much.

HER HONOUR: Yes, thank you. Mr Lloyd, you appear in S325 of 2002?

MR S.B. LLOYD: That is so, your Honour. (instructed by Blake Dawson Waldron)

HER HONOUR: And, Mr Markus, you appear in S10 of 2003.

MR A. MARKUS: Your Honour, I appear in S10 of 2003. (of the Australian Government Solicitor)

HER HONOUR: I have a certificate from the Deputy Registrar in relation to the first matter saying that the solicitor for the Refugee Review Tribunal advises that the Tribunal will submit to any order of the Court save as to costs. In both these matters – and I will ask you to translate this to the gentleman second from the end in due course – the purpose of calling on the matters today is to see if you have any objection to the matters going to the Federal Court where they can be heard in due course.

APPLICANT S10/2003 (through interpreter): I think they should be sent.

PLAINTIFF S325/2002: Your Honour, due to the very short time since the judgments were published, I was not in a position to seek legal advice as to the consequences that might flow out of those judgments handed down on Monday.

HER HONOUR: The consequence is that your matter can now be heard.

PLAINTIFF S325/2002: Yes.

HER HONOUR: It was doubtful until those judgments that the matters could be heard.

PLAINTIFF S325/2002: So, your Honour, I understand from the defendant’s solicitors that they wish the matter to stay in the High Court. For this reason I would seek extra time to consider their submissions if that is possible.

HER HONOUR: We will hear from them later, but the other gentleman has no ‑ ‑ ‑

APPLICANT S10/2003 (through interpreter): No, he thinks they should be sent.

HER HONOUR: Thank you very much. Mr Lloyd, then you are in ‑ ‑ ‑?

MR LLOYD: S325.

HER HONOUR: And you want it to stay in the High Court?

MR LLOYD: Yes. Perhaps I could say two things. The first is that this case is not affected by the decision two days ago because it is a pre‑2 October 2001 decision. It is not a privative clause decision on any view. The reason why we consider it would be more appropriate to stay in this Court is because the precise RRT decision has been the subject of an order nisi application which was determined by a Full Bench of this Court and dismissed on natural justice grounds and now the applicants seek to use this slightly different procedure to pursue different natural justice grounds.

In those circumstances, we think, where a Full Bench of this Court has already heard a review of the exact decision, it is more appropriate that my client file, at least in the first instance, an application under Order 63 rule 2. If that application does not succeed, then the Court may then wish to remit the matter, but my client’s preference would be, accepting that the Court has the power to remit, that it have an opportunity to make an application for the present proceedings to be dismissed under Order 63 rule 2.

HER HONOUR: Very well. Now, did you understand what Mr Lloyd said?

PLAINTIFF S325/2002: I did have some difficulties following, your Honour, but I understand that basically the first reason would be my application does not fall within those concerned by the judgments because it was lodged before October 2002. May I please verify if this is correct?

HER HONOUR: Yes. Have I power to remit anyway? I mean, I am not too sure.

MR LLOYD: I think your Honour does because the decision was before but the application was after.

HER HONOUR: I see.

MR LLOYD: So your Honour does have the power to remit.

HER HONOUR: I think the best course with S325 then is simply to stand it out of the list and give you liberty to apply for such relief as you may be advised in due course. What do you say to that? I just simply stand it out of the list, make no decision as to what will happen today and Mr Lloyd will, in due course, take whatever action he thinks appropriate and you can respond to that.

PLAINTIFF S325/2002: May I please ask your Honour, am I still in a position, according to the order you intend to make, to apply later for the matter to be transferred in the Federal Court should I find out that it is the appropriate court to deal with it?

HER HONOUR: Yes, certainly.

PLAINTIFF S325/2002: Thank you, your Honour.

HER HONOUR: So, what I will do is I will simply stand the matter out of the list, grant liberty to either side to apply on seven days notice for such relief as they may be advised and certify for the attendance of counsel.

PLAINTIFF S325/2002: Thank you, your Honour.

HER HONOUR: That leaves you in exactly the same position really as you were in before.

PLAINTIFF S325/2002: Thank you, your Honour.

HER HONOUR: Yes. Now, when we come to S10 – that is your gentleman – Mr Markus, is there any problem about this one?

MR MARKUS: Yes, your Honour, there is. Does your Honour have a copy of the draft order nisi?

HER HONOUR: Not yet I do not, but I will have.

MR MARKUS: Your Honour, just very briefly, the draft order nisi seeks to ‑ ‑ ‑

HER HONOUR: I am sorry, you may be excused.

PLAINTIFF S325/2002 Thank you, your Honour.

MR LLOYD: May it please the Court. Thank you, your Honour.

MR MARKUS: Your Honour, the draft order nisi seeks to challenge a decision made by the Minister pursuant to section 48B of the Migration Act. That is the only decision that is sought to be challenged. So we run into a difficulty here, your Honour, in that section 476(2) of the Migration Act deprives the Federal Court and the Federal Magistrates Court from jurisdiction.

HER HONOUR: Yes.

MR MARKUS: Now, your Honour, it is my client’s position that in light of the judgment of the Full Court in S134 of 2002 this proceeding cannot survive.

HER HONOUR: But I do not know – I mean, there is reference in it to a decision of the Refugee Review Tribunal of 11 April 2002. I do not know if it ‑ ‑ ‑

MR MARKUS: I am sorry, your Honour ‑ ‑ ‑

HER HONOUR: It is not challenged, but there does not seem to be ‑ ‑ ‑

MR MARKUS: Your Honour is referring to a document which is the affidavit?

HER HONOUR: Yes.

MR MARKUS: I am simply looking at the draft order nisi and in that respect – your Honour, there is only one decision being sought to be reviewed.

HER HONOUR: Yes, I realise.

MR MARKUS: That is the section 48B decision. So, as far as I understand the applicant’s case, the applicant seeks to assert that there is some fresh evidence. So, in that sense, his case is that he should be allowed to make a new application for a protection visa, rather than that the RRT has erred on the evidence that was before it. I do not intend to address your Honour at length on the issue, but it seems to us that this application simply just cannot survive.

HER HONOUR: Yes. Well, I think what I will have to do is stand the matter over with liberty to you to make a substantive motion.

MR MARKUS: Well, the difficulty, your Honour, with that course, with respect, is that this is an application for an order nisi.

HER HONOUR: I see.

MR MARKUS: Your Honour, we are not really a party at this stage.

HER HONOUR: Well, that is right, you are not really a party. Could you explain to the gentleman that it is claimed that his case is really foreclosed by decisions of this Court because he seeks only to challenge the Minister’s refusal to exercise a discretion.

APPLICANT S10/2003 (through interpreter): I am trying to get some more evidence from India.

HER HONOUR: The evidence is not the problem; the problem is that it is said that the sort of decision he wishes to challenge cannot be challenged.

APPLICANT S10/2003 (through interpreter): I cannot do anything against the Minister’s decision?

HER HONOUR: That is what is put. I think this matter will just have to stand out of today’s list and be listed again. I know what you say but the gentleman has not ‑ ‑ ‑

MR MARKUS: Your Honour, I understand the matter has been listed for mention today and I understand what your Honour is saying. What I would ask, your Honour, because my client is not in a position to take any positive steps in relation to this matter, we say ‑ ‑ ‑

HER HONOUR: You would like a firm return date?

MR MARKUS: We would, your Honour.

HER HONOUR: Yes. Mr Markus, I can make it 19 March. That will be a firm date.

MR MARKUS: Thank you, your Honour.

HER HONOUR: What I need you to do is to explain to the gentleman at the Bar table that his matter will come on in this Court on 19 March, but it will then be argued that his application should be dismissed because of the discretionary nature of the Minister’s decision. Now, he may, if he can, like to obtain some legal advice between now and 19 March.

APPLICANT S10/2003 (through interpreter): Yes, I need some legal advice.

HER HONOUR: Yes, I cannot give him any, I regret, and, Ms Milne ‑ ‑ ‑

MS MILNE: Yes, I am sure we can get a barrister to give him some advice and understand the situation and just see what ‑ ‑ ‑

HER HONOUR: Yes. You will be provided with a copy of the transcript as it affects you today and I will ask the Registrar to post that to you as soon as it becomes available – it may be today or tomorrow. If you can find somebody, then you should take the transcript with you. Did you explain that, I am sorry? Yes, thank you very much for coming. Thank you, Ms Milne, I am sorry that you will have to wait until then to have the matter determined, and thank you very much, Ms Sharma, for your assistance.

Now, that leaves Mr Gwozdecky.

At 12.12 am Matter No S256 of 2002, Re: Minister for Immigration and Multicultural and Indigenous Affairs & Another; Ex party Applicants S256/2002 was re‑called.

MR GWOZDECKY: Your Honour, thank you for the brief period of natural justice to consider that point about ground 7, which was pleaded as a 48B challenge. Your Honour, just in reference to that, the decision was not a privative clause decision, in contrast to what my friend said, so whether it is caught by that provision – my friend’s argument may not be relevant in that respect. But would your Honour give leave to amend that particular ground so that it would be a seek a remitting of the primary delegate’s decision to the Federal Court? Is that ‑ ‑ ‑

HER HONOUR: Well, I can do it but it ‑ ‑ ‑

MR GWOZDECKY: Your Honour, I have not had a chance ‑ ‑ ‑

HER HONOUR: But how do you want to amend ‑ ‑ ‑

MR GWOZDECKY: I would withdraw ground 7 as it is pleaded.

HER HONOUR: You want to withdraw ground 7?

MR GWOZDECKY: I think I would withdraw ground 7 as it is pleaded, with leave to amend the claim so that the primary decision-maker could be remitted to the Federal Court.

HER HONOUR: Yes, thank you. Well, that seems to accommodate what you said, does it?

MR MARKUS: Your Honour, the difficulty with amending the application to challenge the decision of the primary decision-maker is that the decision of the primary decision-maker does not appear to be the operative decision. I am not quite sure what my friend has in mind. I may be misunderstanding what is going on here, your Honour, but there is a decision by the Refugee Review Tribunal that was no doubt preceded by a decision by a primary decision-maker. We say that the applicants ought not be allowed to challenge the decision of the primary decision-maker simply because it is not the operative decision. The Refugee Review Tribunal has already had a look at that.

HER HONOUR: Yes. I am just looking at what I read and I thought a ground specified that the Refugee Review Tribunal fell into error by repeating something of the primary decision-maker, but that, of course, does not solve the problem of ‑ ‑ ‑

MR MARKUS: Your Honour, if the Refugee Review Tribunal so fell into error, then ‑ ‑ ‑

HER HONOUR: Then he should be challenging the Refugee Review Tribunal.

MR MARKUS: ‑ ‑ ‑ the Refugee Review Tribunal fell into error. It is neither here nor there that a primary decision-maker fell into error.

HER HONOUR: Yes, I realise that, but are you sure that he is challenging the primary decision rather than the operative decision?

MR MARKUS: Well, I am not sure of anything, your Honour. I am reading this document and I am trying to understand what the applicants propose to do.

HER HONOUR: Well, I will tell you what we will do in that case ‑ ‑ ‑

MR GWOZDECKY: The so-called operative decision of the Refugee Review Tribunal is being challenged in the amended draft order nisi, but I suppose it is something the Federal Court may be able to sort out if it is a – it is just that ‑ ‑ ‑

HER HONOUR: Well, the Federal Court cannot sort out ground 7.

MR GWOZDECKY: No, I am sorry, ground 7 would be withdrawn as it is pleaded and I am just seeking leave to amend ‑ ‑ ‑

HER HONOUR: Well, Mr Markus, ground 7 – Mr Gwozdecky wants to withdraw ground 7 – are we talking about the same matter?

MR MARKUS: S256 of 2002, your Honour.

HER HONOUR: That is right, yes. Ground 7 is the one you objected to, you said I could not remit.

MR MARKUS: That is correct, your Honour.

HER HONOUR: Mr Gwozdecky wants to withdraw ground 7, or I can strike it out now if you like, and have the matter remitted, other matters to be sorted out in the Federal Court.

MR MARKUS: Yes, your Honour. The additional difficulty is in paragraph 3 of the orders sought, where mandamus is sought against four respondents, and my concern is that it cannot be ‑ ‑ ‑

HER HONOUR: Well, it cannot – that is right. The mandamus can only go to the Refugee Review Tribunal, right?

MR GWOZDECKY: Yes. Your Honour, I thought we dealt with that in your order saying that I had until 21 February to amend the parties.

HER HONOUR: No, they were the other two matters. I did not make orders in this matter.

MR GWOZDECKY: No, you did, your Honour.

HER HONOUR: Did I?

MR GWOZDECKY: You did, actually. You just brought back ground 7. You actually said that everything was going to be remitted and ‑ ‑ ‑

HER HONOUR: We are not going to worry about that.

MR MARKUS: Your Honour proposed some orders and no order has been made yet.

HER HONOUR: Yes. Why do we not say this: ground 7 is by consent dismissed, leave to the applicant/prosecutor to amend the draft order nisi by 21 February 2003, otherwise orders in accordance with the proposed orders earlier circulated in court. That solves it, does it not?

MR MARKUS: We hope so, your Honour. I should just say on the record that I understand that the amendments will go in part to the naming of the parties, in part to proposed order 3. Those are my concerns in that matter.

HER HONOUR: Yes, that is my understanding. Yes, thank you.

MR MARKUS: Thank you, your Honour.

HER HONOUR: Just in case there is any problem, the matter can be re‑listed upon application of either party on 48 hours notice.

That leaves, I think, block 2, which Mr Markus appears in, but I told Mr Tees I did not need to trouble him.

At 12.21 pm Matters No S294 of 2002, Plaintiff S294/2002 v The Commonwealth & Ors, No S295 of 2002, Plaintiff S295/2002 v The Commonwealth & Ors were re‑called.

HER HONOUR: Yes, Mr Markus.

MR MARKUS: Thank you, your Honour. I appear for the first and third defendant.

HER HONOUR: Yes, and this matter was earlier stood over to enable inquiries to be made of the second defendant in each of these matters and I now hold a certificate from the Deputy Registrar, who certifies that in both matters the second defendant is prepared to accept the proposed orders remitting the matter to the Federal Court as earlier circulated to the parties. That being so, I would propose to make orders in accordance with the draft orders earlier circulated.

MR MARKUS: If the Court pleases.

HER HONOUR: Thank you. I think we can now adjourn sine die.

AT 12.22 PM THE MATTERS WERE CONCLUDED

[2003] HCATrans 551

Key Legal Topics

Areas of Law

Civil Procedure

Legal Concepts

Abuse of Process

Stay of Proceedings