CHI, Ex parte- Re Min for Immig and Multicultural Affairs and Anor

[1997] HCATrans 168

TRANSCRIPT
OF PROCEEDINGS
AUSCRIPT
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IN THE HIGH COURT OF AUSTRALIA

MELBOURNE OFFICE OF THE REGISTRY

No. M32 of 1997

Re:THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS and ANOTHER

Ex parte -

CAM MUI CHI

DAWSON J (In Chambers)

AT MELBOURNE, WEDNESDAY, THE 18TH DAY OF JUNE 1997

AT 9.35 AM

MR T.V. HURLEY:   I appear on behalf of the prosecutor and the applicant in today's proceeding.  (Instructed by Barlow & Company)

MR R.R.S. TRACEY QC:   I appear on behalf of the Minister.  (Instructed by the Australian Government Solicitor)

MR HURLEY:   Your Honour, I have prepared an outline of submissions for the Court and we have, as I have informed my friend, re-cast the order nisi to limit the order nisi that we seek from your Honour today.  If I can hand to your Honour a copy of the proposed order nisi and the submissions, it limits the grounds, your Honour, so that there are, beginning at the bottom of page 3, the first three paragraphs are the same, and raise the questions of construction of the relevant Migration regulation as does paragraph 4.  The other grounds relating to substantial justice, natural justice and other broader considerations are not pursued.  The order has also been redrawn to bring it to today's date.

HIS HONOUR:   You also seek remitter?

MR HURLEY:   Yes, your Honour, we do.

HIS HONOUR:   It may be that if it were a matter appropriate for remitter that the whole application go in to the orders nisi, but that is a matter that you can consider. 

MR HURLEY:   Yes, your Honour.

HIS HONOUR:   But there would probably need to be an extension of time for that to be done.

MR HURLEY:   Your Honour, I do not understand ‑ ‑ ‑ 

HIS HONOUR:   Anyway you can keep that in the back of your mind.  In the meantime if you would give me a few minutes just to read these submissions. 

MR HURLEY:   I apologise they were not available earlier, your Honour. 
HIS HONOUR:   Yes.

MR HURLEY:   Your Honour, the only other thing, I have extracted the relevant legislation of the former provisions of the Migration Act and the former regulations as are set out in the submission. 

HIS HONOUR:   I have here a copy of reprint number 6 of the Migration Act.  Does that contain the provisions on which you rely in the relevant form?

MR HURLEY:   No, your Honour, because the relevant provisions, we would submit, are those that existed before 1 September 1994, this being an application made before that date.  So the duty that we say arises is that which arose when the application was made on 26 January 1992, the regulations in that as in force at that date are those that have been preserved through two changes of the legislative scheme; the first in 1993 and the second in 1994.  So I do not believe that it is a significant issue, the actual form of the Act.  There have always been regulations and a duty on the Minister to decide applications.

HIS HONOUR:   That is going to the substance.  As to the jurisdiction which the Federal Court would have, the Act, as it is at the moment is the relevant ‑ ‑ ‑ 

MR HURLEY:   Reprint 6, your Honour, would ‑ ‑ ‑ 

HIS HONOUR:   Yes, fine.  All right.  Have you got a copy of the relevant regulations there?

MR HURLEY:   I have, your Honour, of the Migration Act before 1 September 1994 and the relevant 89 regulations.  My instructor has bought a copy of the Act but if your Honour has a copy ‑ ‑ ‑ 

HIS HONOUR:   Yes.  You do not contest that those are the relevant regulations, do you, Mr Tracey?

MR TRACEY:   No, your Honour. 

MR HURLEY: Your Honour, if I can turn to the submission at page 6, your Honour, this application is brought before this Court under section 75 paragraph 5 of the Constitution. The applicant seeks orders nisi for writs of prohibition, mandamus or prohibition or an injunction against two officers of the Commonwealth, the first being the relevant minister and the second being the person who constituted the Immigration Review Tribunal. In relation to the application for a mandamus, your Honour, we contend that the decision of the second named respondent, in determining the application on 12 August 1996 is affected by two related errors of law concerning the construction of the remaining relative ground of visa under the Migration (1989) Regulations.

The first error relating to the incorporation into the second respondent's analysis of terms of adoption other than that which, for the purposes of the regulations, is to be applied by regulation 2A.  The second error and perhaps encapsulating the first is that the second named respondent decided the application on the basis that he could not make a positive finding that the applicant was excluded.  The scheme of the relevant regulation, your Honour, is set out in reasons of the IRT which is exhibit CMC24 at page 3 going on to page 4. 

HIS HONOUR:   Page 3 and ‑ ‑ ‑ 

MR HURLEY:   Of exhibit CMC24 at the bottom of page 3 going on to page 4.  Your Honour, my client's son was entitled, we contend, to a preferential family visa because he was a remaining relative for the purpose of - your Honour the phrase item 2 in part 3 in schedule 2 is the IRT's shorthand.  The actual regulation, I think, provides for the purpose of these regulations - for the purposes of these regulations.  The member has interpolated there item 2 part 3 in schedule, if the applicant has a relative who (a) is a brother, sister or parent of the applicant who is an Australian citizen or permanent resident.

The son has, in this country, a brother, a sister and a parent.  So he would fall within regulation 9(1).  Over the page at page 4 of the reasons, your Honour:

Unless the applicant is disqualified under sub hyphen regulation 2.  Regulation 2 provides an applicant is disqualified if (a) -

which is the relevant paragraph -

the applicant or the spouse, if any, of the applicant resides in the same country not being Australia as an overseas near relative.

That term is defined in sub-regulation 3 as meaning a person who is a parent, brother, sister or non-dependent child and sub-paragraph (a) of the applicant or of the spouse, if any of the applicant.  My client's son was the applicant.  He has a spouse and the question that was agitated was whether that spouse had any parent, brother - relevantly parent or sibling in Vietnam being their country, their home country.

The member decided it on the basis that is set out on page 6 of his reasons in the last paragraph above decision:

On balance therefore I am unable to make a positive finding that she has no overseas near relatives. 

It is not entirely clear whether the member in that is saying he is having regard to an informal adoption of the spouse by one woman or he is having regard to the, we would say, speculation that the wife's parents may still be alive after the events in South Vietnam in 1975.  The legal point we submit is that there is an error in construing it on the basis we contend of without making a finding, of speculating that there is an overseas near relative.  That is the error that, in a nutshell, underpins it all.

HIS HONOUR:   Does the onus of proof have any part to play in proceedings such as this?  Is there an onus of proof?

MR HURLEY:   Well that is a very - there is no ‑ ‑ ‑ 

HIS HONOUR:   There is no answer to that question?

MR HURLEY:   Well, that is, we would say, if there is an onus of proof it is not on us.  We have not - we say that we have done what we can to assert that there is no - that the mother - that the parents and any siblings are not alive and that the foster mother is not - and there is not a mother, a parent for the purposes of these regulations.  We say we have done what we can.  We cannot prove the negative any further.  I believe it will be contended against us that there is an onus of proof to exclude us from the exclusion.  But it is very much that that is the point that we seek to agitate.

Your Honour, we contend that the decision of the second-named respondent is affected by that error or those two errors of construction and they are the grounds that are set out in paragraphs 1 to 4 of the order nisi that we seek.  The submission, your Honour, set out the contentions more elaborately on page 7 and at the bottom of page 7 we refer to the former provisions that require the Minister, the first named respondent, to determine the application.  If your Honour turns to the relevant legislation document that is submitted to the Court, section 23 is set out which enables the making of regulations which were given ultimately the name the Migration (1989) Regulations and they are set out further on, the relevant ones.

Under section 24 the former Act provided that:

The section applies where and only where (a) a person makes an application for a visa of a particular class in the approved form and in accordance with regulations and any fee payable in respect of the application is paid. 

Sub-paragraph 2 provides:

The Minister is not required to consider the application unless that is met.

Paragraph 3 provides:

Where it appears to the Minister that an applicant for a visa other than an exempt visa is under the regulations entitled to a grant of a visa of the class concerned then (a) the Minister should give the applicant written notice of the proposal and ask him if there were change in circumstances.

Then in paragraph (b):

If and only if the Minister becomes satisfied there has been no material change in the applicant's circumstances since the applicant was made the Minister shall, subject to section 28 grant the visa.

So we submit that - and we do not understand it to be disputed, that the Minister - there is a regulatory scheme, applications must be made for a particular class of visa.  If the applicant meets those criterion visa should or must issue subject to certain conditions such as health and character but principally meeting the requirements of the visa class.  They are set out, your Honour, in page 2 onwards of the names here.  The relevant definition of "adopted" and the heading "Interpretation adopted" sub-regulation 2A is set out.

It provides for the purposes of these regulations a scheme whereby adoption is taken to have occurred either formally or in paragraph (c) by other arrangements and we submit a fairly elaborate scheme is set out for the finding that persons are adopted.  Then regulation 9, remaining relative provisions set out and your Honour has seen in the reasons of the Tribunal that is set out there again.  Over the page on to page 4, there is a regulation that created classes of visas and then provided for the purposes of subsection 23(2) of the Act the classes of visas are: (a) the classes of visas specified in column 2 in schedule 2. 

Then your Honour schedule 2 is set out.  The relevant part, part 3, for special classes of visas.  My client was seeking item number 2, the preferential family.  The prescribed criteria were (a) the third one, your Honour, remaining relative.  So if he satisfied regulation 9, that he was a remaining relative then we would contend that he is entitled to a visa as a remaining relative.  Over the page, your Honour, there are prescribed criteria for classes of visas which provide that the grant of the visa subject to section 28:

A person is entitled to be granted a visa of a class specified of column 2 of an item in schedule 2 if the person satisfies a prescribed criteria in relation to that class of visas.

And regulation 34A(1) provides:

Subject to a sub-regulation 2 and any other provision of these regulations an applicant for a visa or an entry permit must satisfy the prescribed criteria in relation to a relevant class of visa or the entry permit other than public interest criteria and prescribed health criteria at the time of the application and as applicable at that time.

Then your Honour is set out the two salient provisions in the subsequent schemes. There is the 1993 regulations that save outstanding applications made under the then former regulations and the part of the 1994 Migration Reform Transitional Provisions regulations that save, again, outstanding applications that were unresolved before 1 September 1994 and then regulation 22 applications that have been made between 19 December 1989 and before 1 September 1994.

HIS HONOUR:   When was this application made?

MR HURLEY:   This application was made, your Honour, on 26 January 1992 and it is exhibit CMC2 to the ‑ ‑ ‑ 

HIS HONOUR:   26 January 1992?

MR HURLEY:   Yes, your Honour.  So it was made while the 1989 regulations were in force.  Your Honour, that is the legislative scheme, your Honour, insofar as it relates to the grant of the visas, the visa class.  Your Honour it is our contention, if I can take your Honour to the bottom of page 7 and the top of page 8, that the second named respondent is required to determine the applications according to the regulations and that is referred to section 24(3) of the Migration Act before 1 September 1994 or in the current provisions it is section 47.1(1), 65(1)(a) and (b). 

The decision of the second named respondent, which is the member of the IRT, of 12 August 1992 confirmed, perhaps he actually affirmed the initial decision made on 7 May 1993 which is CMC10.  I thank my learned friend.  In fact the decision of the second named respondent was 12 August 1996, not 1992.  Confirmed the initial decision made on 7 May 1993.  Such a decision remains a decision of the first named respondent.  Your Honour that is by virtue of section 349(3) of the current Act.  The decision of the second named respondent was to affirm the decision of the first named respondent by reasoning, we submit, contrary to the provisions of the 1989 regulations and is not a valid exercise of the power to decide. 

The question of whether the application made by the principal applicant who is the son, your Honour, should be granted has not been decided according to law and the duty to decide the application remains to be performed.  We refer to authority there, your Honour.  I do not know whether your Honour would be assisted by reference to the authority there.

HIS HONOUR:   No, I do not think you need go into that.

MR HURLEY:    Your Honour, we submit that as an ancillary remedy to mandamus we seek further in the alternative certiorari to issue to correct the errors of law in ‑ ‑ ‑ 

HIS HONOUR:   Where do you get the jurisdiction in this Court to grant certiorari?

MR HURLEY:   Your Honour, we seek it as an ancillary remedy to the remedy of mandamus.  We say that we submit to the Court that the ‑ ‑ ‑ 

HIS HONOUR:   This is Pitfield v Franki.

MR HURLEY:   Well, and the observations of this Court in Re Jarman; -ex parte Cook [No 1] of ‑ ‑ ‑ 

HIS HONOUR:   They threw some doubt upon certiorari as an available remedy, at least where a superior Court is concerned.  It is not so here.

MR HURLEY:   But not so here, but we would submit that they are observations of the Court in that to the effect that where a certiorari is sought an ancillary remedy, that it falls in the Pitfield v Franki situation and our primary submission is that the duty to decide the application according to law has not been discharged.  We seek certiorari as an ancillary remedy to remove the decision that currently stands so that that duty can be performed.  If your Honour would be assisted, I have got re Jarman.  It is only reported in the ALR and I have a copy of it.

HIS HONOUR:   No, no, I have read it recently.

MR HURLEY:   I think your Honour - well in that decision, your Honour, we would submit the Court has denied that certiorari would issue to a superior court but would issue, we would contend, we submit, in relation to an administrative tribunal where it is ancillary to another form of relief.  This Court has observed in Craig v South Australia, particularly at page 179 of the report, which I have a copy in Court, your Honour, that where an administrative Tribunal, at page 179, falls into an error by asking itself the wrong question or if it falls into an error which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material or to rely on irrelevant material or at least in some circumstances to make an erroneous finding or to reach a mistaken conclusion.  And the Tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers.

We submit that this is a tribunal as distinct from a court that has, we submit, misconstrued and asked itself the wrong question by misinterpreting the provisions of regulation 9 of the Migration (1989) Regulations.  So we contend therefore, your Honour, the decision of the IRT as its written statement, the entire - if not the entirety of exhibit CMC24 after the covering letter is the written statement which the Tribunal is required to give setting out its decision, it reasons, the material referred to and other matters by virtue of section 368(1) of the Migration Act. 

We again submit that misconstruction of a statutory provision is an error of law and refer again, your Honour, to authorities that your Honour is probably not going to be assisted by being taken to in detail.  In relation to discretionary considerations, your Honour, I believe my learned friend -that no issue is made in relation to that.  The affidavit material discloses, your Honour, that there are proceedings pending in the Federal Court but that there is a serious question as to whether those proceedings were started one day late in the context where the construction of the notifications provisions was clarified at approximately the time the application came to be lodged.

We would contend that the discretionary considerations here do favour the grant of such extension as is necessary and as is sought in page 2 of the order nisi and the first two orders are orders that seek an extension of time. 
  [10.00am]

Firstly, under order 60 rule 6 of the High Court Rules makes provision in respect of the power of the Court generally to extend time where in subrule 1:

A court or a justice may enlarge or bridge the time appointed by these rules or fixed by an order of the court or a justice for doing an Act upon terms, if any, as the justice of the case requires.

HIS HONOUR:   Yes.

MR HURLEY:   And the second paragraph, your Honour, refers to the High Court Rules, order 35, rule 30, your Honour that is, I regret to say, an error, it is order 55, rule 30, which enables your Honour to:

Where an application is made for writ of mandamus it shall be made within two months of the date of the refusal to hear, or within such further time as under special circumstances are allowed by the court or a justice.

HIS HONOUR:   Why should I extend time if you are out of time in respect of the relief you seek here?

MR HURLEY:   Well, your Honour, the submission is that the applicant is only - the applicant is in this court, your Honour, reluctantly, because of the course of events that have occurred in the Federal Court where the applicant is thought to be out of time by one day from - of the time limits provided in the Migration Act in section 478, I believe, your Honour, for making application to that court.  The applicant is out of time in that court for no default of her own, and in the context ‑ ‑ ‑ 

HIS HONOUR:   When you say through no default of her own ‑ ‑ ‑ 

MR HURLEY:   Personal default.  And if there be default on her solicitors it was in a context where the time limits were initially assumed to be the 28 days runs from notification, and it was initially assumed that the notification also was governed by the migration regulations, so you had 28 days plus 7, being the prescribed time under the regulations that deemed notice to be given.  Moore J, in a decision that I have in court and can take your Honour to, decided in July 1996, weeks for this application came to be determined, came to be filed, that in fact that extra 7 days does not apply to a time limit set by the Migration Act, it only ‑ ‑ ‑ 

HIS HONOUR:   Does that - what is that decision, Mr Hurley?

MR HURLEY:   It is the decision, your Honour, of - if I have - it is unreported, your Honour.

HIS HONOUR:   Yes.  You have a copy?

MR HURLEY:   I have a copy.  I must ask the court to excuse the notations on it.  It is a ‑ ‑ ‑ 

HIS HONOUR:   I do not think they are likely to inflame me or make very much difference.

MR HURLEY:   It is not - it is a - so your Honour, the point - there is an argument that the applicant asserts in the Federal Court that in fact she is not out of time and that application - that dispute which is described, your Honour, in the correspondence which is exhibited at CMC27.  The applicant's position, your Honour, is set out on the first page of CMC27.  The applicant - my client asserts that the scheme of the Act, your Honour, is that an applicant must get - must apply to the Federal Court within 28 days of notification of the decision. 

The applicant is defined in the relevant circumstance here as the applicant - the applicant can apply to Federal Court is defined to be the applicant to the relevant Tribunal.  The argument that is unresolved is whether the notification must be given to both applicants, that being the applicant in the Tribunal and where they are different, the applicant for the visa.  So, here the applicant in the Tribunal has to be the mother, who is my client here today, whereas the applicant for the visa is the son, because he is not in Australia. 

So, that is an argument that remains unresolved in the Federal Court in response to the notice of objection that the respondents have brought on in that court which hangs unresolved pending this application.  So, in answer to your Honour's question, we would contend that the applicant is not out of time in the Federal Court.  If she is out of time, it is only by one day.  It is one day that occurred in a context where the construction of the Act and the Regulations was not settled and changed, and that ‑ ‑ ‑ 

HIS HONOUR:   But essentially you say that the objection to competency is that which justifies your application to this court?

MR HURLEY:   Yes, your Honour.  That is - and your brother McHugh observed in the decision of Gallo's case that is report in the ALRs and is - as is set out in order 55 ‑ ‑ ‑ 

HIS HONOUR:   Gallo v Dawson, that is ‑ ‑ ‑ 

MR HURLEY:   Yes, your Honour, it is a decision - but your Honour was ‑ ‑ ‑ 

HIS HONOUR:   I notice that you have case of Gummow v Dawson.

MR HURLEY:   No, have we, your Honour.

HIS HONOUR:   They knew that, what is that one?

MR HURLEY:   It is an - I apologise, your Honour, for not having these submissions to your Honour earlier and for that error.  That is ‑ ‑ ‑ 

HIS HONOUR:   You mean it is per ‑ I have lost it now, which one?

MR HURLEY:   It is on page 6, your Honour, of the submission.   I have got it right at page 9, but ‑ ‑ ‑ 

HIS HONOUR:   I see, it is Gallo.

MR HURLEY:   It is correct on page 9, it is incorrect on page 6, your Honour.

HIS HONOUR:   Yes.

MR HURLEY:   So, your Honour, in terms of discretionary considerations, they are the discretionary considerations that we submit are - that there - that the broader considerations here are that my client does seek, as the affidavit material reveals, to sponsor her last remaining son, and the determination of that application, we contend, has been affected by errors of law and she has attempted to use the remedy that exists, but because of the restrictions of the Migration Act she is unable to - whilst there is great doubt as to the future of the proceedings in that court. Your Honour, we seek remitter in the draft order nisi on ‑ ‑ ‑ 

HIS HONOUR:   Where is the jurisdiction in light of part 8 of the Migration Act to order remitter?

MR HURLEY:   Your Honour, section 44 of the Judiciary Act gives your Honour power to remit a matter to a court that has jurisdiction, to remit all or part of a matter to a court that has jurisdiction.

HIS HONOUR:   Over the subject matter and parties, yes.

MR HURLEY:   And your Honour, it is clear, we submit, that the Federal Court clearly has jurisdiction over the subject matter, if I can take your Honour to section 475, subsection 1A of the Migration Act.

HIS HONOUR:   Perhaps if I ask Mr Tracey.  Is the jurisdiction contested?

MR TRACEY:   No, it is not, your Honour. 

HIS HONOUR:   You say I do have power to do ‑ ‑ ‑ 

MR TRACEY:   Yes, your do, your Honour.  It is by operation of sections 475 and 485 of the Migration Act.

HIS HONOUR:   That was the view I took in a case previously, you may have been in it, which was eventually settled.

MR TRACEY:   Yes.  Your Honour, the only issue that arises under the case as it is being argued today, is whether the Federal Court would have the power to entertain the matter as remitted and there was some doubt as to that in the way in which the grounds were originally cast, but now that they have been contracted to pure error of law grounds, we do not apprehend there is any difficulty with the Federal Court's jurisdiction.

HIS HONOUR:   Well, that assists you to some extent.

MR HURLEY:   It does, your Honour, but there is ‑ ‑ ‑ 

HIS HONOUR:   I think - the section is what, again?

MR HURLEY:   Your Honour, section 475, subsection 1 paragraph A defines a judicially reviewable decision to include a decision of the IRT, being the second named respondent and sections 485 and 486.  We would submit in 485 provides, despite of any other law, included section 39B, the Federal Court of the judiciary - the Federal Court does not have any - this is 485, subsection 1:

The Federal Court does not have any jurisdiction in respect of judicially reviewable decisions ...(reads)... or by section 44 of the Judiciary Act.

So the power of this court to remit, we submit, is preserved by section 485, subsection 1.  Subsection 3 ‑ ‑ ‑ 

HIS HONOUR:   But the power of this court to remit would be dependent upon the Federal Court having jurisdiction, and the jurisdiction of the Federal Court would depend upon section 39B, which on one reading, subsection 1 overrides.

MR HURLEY:   Well, your Honour, section 486 also gives the Federal Court jurisdiction in respect of judicially reviewable decisions, but it takes - of which this is section 475(1)(a).

HIS HONOUR:   Yes, but the jurisdiction it has with respect to judicially reviewable decision is the jurisdiction under part 8, is it not?

MR HURLEY:   Yes, your Honour, but it has that jurisdiction and ‑ ‑ ‑ 

HIS HONOUR: And this purports to exclude any application for prerogative relief, other than under section 75 which of course cannot be excluded.

MR HURLEY:   Yes, your Honour.  Well ‑ ‑ ‑ 

HIS HONOUR: I think the scheme really is - I will not take it any further, but the scheme - it is not very well expressed at all, but the scheme is that since the High Court cannot be excluded by reason of section 75(5) from the granting of prerogative relief, it seeks to confine applications to the granting of prerogative relief to the High Court but in the realisation that the High Court is not likely to be - is not a suitable body to determine a flood of applications of this sort, and therefore it attempts to preserve the remitter jurisdiction, but only remitted to the Federal Court, and that is the purpose of section 486 to exclude remitter to any other court and that would be sufficient for your purposes, but that seems to be the scheme.

MR HURLEY:   Yes, your Honour, and subsection 84, subsection 3, contemplates that matters will be remitted, so ‑ ‑ ‑ 

HIS HONOUR:   But it must be - the jurisdiction which the Federal Court exercises, must be a jurisdiction which is actually conferred by the order for remitter under section 44.  In other words, by section 44 of the Judiciary Act, because it is a jurisdiction it does not otherwise have because of subsection 1 of section 485, or at least that is one way of viewing it.

MR HURLEY:   Your Honour, it is an issue that ‑ ‑ ‑ 

HIS HONOUR:   In view of Mr Tracey's attitude it does not arise, well it does, I mean, by concession one cannot confer jurisdiction, but it would seem to be a correct decision - concession.

MR HURLEY:   So, your Honour, we seek, or that is they are the submissions on behalf of the applicant prosecutor to your Honour.  We submit that the questions of construction that we contend arise from the decision of the second named respondent, are those set out in paragraphs 1 to 4 between pages 3 and 4 of the draft order nisi as filed today with the amendment in paragraph - on page 2 that we seek an extension of time under order 53 and not 35. 

And we seek consequential orders, your Honour, that the matter be remitted - received in the Federal Court and that any steps taken in this court be taken - the matter proceeds if steps in this courts ...(indistinct)... steps in that court.  So, unless I can assist your Honour further, they are the submissions on behalf of the applicant in this matter.

HIS HONOUR:   Yes, thank you, Mr Hurley.  Mr Tracey.

MR TRACEY:   If your Honour pleases, the minister does not object to the making of the order nisi in the form in which it has been amended, and nor does the minister object to remittal ‑ ‑ ‑ 

HIS HONOUR:   Extensions of time.

MR TRACEY:   I am sorry, your Honour.

HIS HONOUR:   Nor does he object to the extension of time.

MR TRACEY:   Nor does he oppose the enlargement of time to allow that to occur.  Your Honour, the errors of law that are alleged are arguable and the minister would wish to have the benefit of the Federal Court's construction of the regulations, in particular in relation to the question of the requirement that an applicant satisfy, not only positive requirements which seem to be what are contemplated by the legislation, but negative requirements as well that are imposed by the regulations.

There is no authority on the point to date, and it would certainly assist in the construction of these regulations for there to be a clear decision of the Federal Court in that regard.  Your Honour, as to the matter of power, the concession is made upon the basis that if the Federal Court does not have jurisdiction, then the whole scheme of part 8 - I go back a step. 

If the Federal Court does not have jurisdiction to entertain the matter as remitted, the whole scheme of part 8 is to no avail because it would create the situation in which the door is supposedly left open to cater for 75(5) of the constitution, and this court's powers allow this court ‑ ‑ ‑ 

HIS HONOUR:   But I mean, this court would be the only court that could entertain ‑ ‑ ‑ 

MR TRACEY:   Indeed.

HIS HONOUR:   ‑ ‑ ‑ the application, it is something which this court would not view with great enthusiasm.

MR TRACEY:   Indeed, and plainly it was the intention, whether it has been achieved by careful drafting, or may be a drafting that is open to question, but we would say that ‑ ‑ ‑ 

HIS HONOUR:   It is just that I, at one time, wrote a more or less elaborate judgment to be told on coming back by you that the matter had been settled on just this point, but ‑ ‑ ‑ 

MR TRACEY:   Well, your Honour, I think it was ‑ ‑ ‑ 

HIS HONOUR:   I do not think that requires me to air the matter if you concede that there is jurisdiction here.

MR TRACEY:   We do, your Honour.  And it is for those reasons that we do not oppose the application, if your Honour pleases.

HIS HONOUR:   Well, that does not seem to call for any reply, does it Mr ‑ ‑ ‑ 

MR HURLEY:   No, your Honour, I do not propose to make a reply.

HIS HONOUR:   Very well.  Just give me a moment.  Why do you need an injunction, Mr Hurley?

MR HURLEY:   In relation to page 3, your Honour.

HIS HONOUR:   I see the relief you are claiming - it is an injunction, it would not seem to be necessary, would it?

MR HURLEY: Your Honour, it is - the phrase taken from section 75(5) of the constitution.

HIS HONOUR:   Yes, but you do not have to claim everything that is set out there.  You are not seeking an injunction, are you?

MR HURLEY:   No, your Honour, no.

HIS HONOUR:   No, if I can take you to the draft order, page 2, you are not seeking an injunction, the second last line, that should be deleted, should it not?

MR HURLEY:   On page ‑ ‑ ‑ 

HIS HONOUR:   Two, of the draft order.

MR HURLEY:   Yes, your Honour, yes that - yes, your Honour.  And likewise in paragraphs (b) and (c)

HIS HONOUR:   And what about paragraph B on - apart from that, on page - paragraph (b) on page 3, what - you are not seeking a writ of mandamus there, are you, you were seeking a writ of prohibition?

MR HURLEY:   Prohibition, your Honour.

HIS HONOUR:   But you are not seeking prohibition, are you?  Well, you could be.  Are you?

MR HURLEY:   Well, we seek, your Honour, to restrain the minister from acting upon the effect of the decision.

HIS HONOUR:   So, it is a writ of prohibition?

MR HURLEY:   Yes, your Honour. 

HIS HONOUR:   And again in (c) an injunction should disappear and on page 5, the first paragraph, if I make an order nisi, or orders nisi, that will disappear will it not, and the further proceedings in this application for a writ of mandamus, a writ of prohibition and a writ of certiorari ‑ ‑ ‑ 

MR HURLEY:   Yes, your Honour.

HIS HONOUR:   ‑ ‑ ‑ be remitted to the Federal Court the applications for orders nisi, delete an injunction.  Yes. All right, now if you go to page 2, the reference to order 35, rule 30, should be order 55, rule 30.

MR HURLEY:   Yes, your Honour.

HIS HONOUR:   And the second last line, the words "or an injunction" should be deleted.  On page 3, (b) should read, "a writ of prohibition" rather than mandamus and the words, "or an injunction" should be deleted, and in (c), the words "or an injunction" should be deleted.  On page 5, the words "an order nisi for" should be deleted and for the words, "for an injunction" should be substituted "and a writ of certiorari" and the word "and" before writ of prohibition should be deleted.  And a comma after mandamus and the word "a" substituted for the word "and".  And in paragraph 2 the words "and an injunction" should be deleted.  And with those amendments, I will make the order in the form sought.

MR HURLEY:   If it please your Honour.

HIS HONOUR:   Is there anything else required, gentlemen.

MR TRACEY:   No thank you.

MR HURLEY:   No, your Honour.

AT 10.22 AM THE MATTER WAS ADJOURNED
INDEFINITELY