Das, Ex parte- Re Ruddock

[1998] HCATrans 275

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M40 of 1998

In the matter of -

An application for Writs of Prohibition, Certiorari and Mandamus against THE HONOURABLE PHILLIP RUDDOCK in his capacity as the MINISTER OF STATE FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

Ex parte -

SHIU PRAVEEN LATA DAS

Prosecutor

HAYNE J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON WEDNESDAY, 19 AUGUST 1998, AT 9.35 AM

Copyright in the High Court of Australia

MR T.V. HURLEY:   If it please the Court, I appear on behalf of the prosecutor.  (instructed by Nevett Ford)

MR R.R.S. TRACEY, QC:   If your Honour pleases, I appear on behalf of the Minister  (instructed by the Australian Government Solicitor)

HIS HONOUR:   Mr Hurley, why should this matter not be remitted to the Federal Court?

MR HURLEY:   That is our submission, and I have prepared orders to that effect, your Honour.  We know of no reason why it should not be remitted to the Federal Court, your Honour.

HIS HONOUR:   Mr Tracey, why should it not be remitted to the Federal Court to be dealt with there?

MR TRACEY:   Your Honour, the difficulty is, and it is my friend’s difficulty, not ours, that the grounds upon which reliance is placed are grounds that are not available under Part 8 of the Migration Act in the Federal Court, save for, I think, one or two exceptions.

HIS HONOUR:   But is this a Part 8 case?

MR TRACEY:   It is, your Honour.

HIS HONOUR:   Can you explain to me why that is so?

MR TRACEY:   Yes, your Honour, section 475(1)(c) provides that a judicially reviewable decision is one that includes a decision relating to a visa.  In fact, there are two decisions that are attacked in this proceeding.  The first is a decision that the Minister or his delegate would not grant or even process an application for a resident visa, and there is an attack made on the grant of a visa in Fiji in so far as it contained what is known as Condition 8503 which is the condition that says that someone holding a visa that is subject to such a condition, when in Australia, may not make another application.

HIS HONOUR:   Can I just understand why those two are said to be decisions relating to visas.  Can I just look for a moment at the draft order that was submitted.  The prohibition that is sought prohibiting further proceeding upon the decision of 24 April 1998 to refuse to consider the application for permanent residence.  Do you have the draft order nisi?

MR TRACEY:   Yes, I do, but I understand our friend has a revised copy that he wishes your Honour to consider this morning.

HIS HONOUR:   If that is so, it is perhaps not fruitful to spend time looking at that version, is it?

MR HURLEY:   Your Honour, there is a housekeeping matter that I would seek to attend to and that is to file a supplementary affidavit which does two things, your Honour:  it places before the Court the actual application which was, in fact, rejected, which is only referred to in correspondence, which is perhaps a small point, and exhibit DS7 requests that the Court grant an order nisi in that form.  It is the same decisions, your Honour.  It sets out, hopefully in a specific way, the grounds that my client says arise from the decisions to date.

HIS HONOUR:   Yes.  Well, do you, Mr Tracey, object to my receiving the affidavit?

MR TRACEY:   Not at all, your Honour.

HIS HONOUR:   Yes.  Well then, looking at the draft order, exhibit DS7, to that, prohibition is sought in relation to the decision of 24 April:

to determine that the application.....was not a valid application for a visa -

and mandamus to require consideration of an application for spouse visa and various forms of declaration.  Well then, as I understand it, you contend that these are judicially reviewable decisions.

MR TRACEY:   Yes, your Honour.

HIS HONOUR:   What do you say follows from that fact?

MR TRACEY:   Your Honour, that being so, the provisions of section 485 of the Migration Act operate and, in particular, section 485(3), which was the subject of attention by his Honour Justice Gummow in Abebe - - -

HIS HONOUR:   And given the pendency of Abebe, what course do you now say I should follow in relation to the present application?

MR TRACEY:   Your Honour, our principal submission is that the application should be dismissed on the basis that there is no reasonable cause of action disclosed.  Alternatively, your Honour, we would submit that the appropriate order would be of a kind made by his Honour Justice Gummow in Abebe directing that the applicant make application to a Full Court.

HIS HONOUR:   Would this particular application, so far as you are aware, raise any different point or additional point that is not raised by Abebe?

MR TRACEY:   In so far as Abebe may be seen to raise the question of whether Part 8 could be construed or should be construed in such a way as to narrow the jurisdiction of the Federal Court on remitter, no, your Honour.

HIS HONOUR:   There would, of course, be different factual and, to some extent, regulatory substratum to it but the fundamental point or the point which led to the direction that it be returned before a Full Court is, at least at first blush, one that seems to be the same that is raised here, is it not?

MR TRACEY:   Yes, your Honour.

HIS HONOUR:   Which leads me to wonder - and I invite comment on it - whether, rather than multiplying the numbers of applications before the Full Court, it is better simply to stand this one over to await the outcome of Abebe or, if Abebe falls over, then to push this one forward into the Full Court.  What advantage do we get from putting this one up into the Full Court?

MR TRACEY:   None, your Honour, other than that if and when Abebe is determined, this one will no doubt be withdrawn by either party deciding that, in the light of Abebe, that course is appropriate.

HIS HONOUR:   The inclination of my mind at the moment, Mr Tracey, is to say we are better to simply adjourn this application pending the outcome of Abebe but, as I say, I would be glad of any assistance or comment that you have on that proposal.

MR TRACEY:   If your Honour was not persuaded that the application should be dismissed through want of any reasonable foundation for it, then we would not oppose that course, your Honour.

HIS HONOUR:   It I do not think bears directly on this but do you happen to have any information about the progress of Abebe in the list?

MR TRACEY:   I was hoping your Honour could tell me the answer to that.

HIS HONOUR:   Do not misunderstand me if I say I would be the last to know these things, Mr Tracey.  That is the sort of statement that is liable to be misconstrued, is it not? 

MR TRACEY:   I do not know, your Honour.

HIS HONOUR:   No.  In particular, do you know whether those for whom you appear are taking steps to see if the matter can be brought on reasonably promptly, because I take it there is going to be a backlog of these applications or applications like them that will be affected by it.

MR TRACEY:   I think that is right, your Honour.  Unfortunately Abebe is being run out of Sydney and my present instructor does not have knowledge of that but I am sure the answer can be found out fairly quickly by a phone communication should that be necessary.

HIS HONOUR:   It is simply that people are being put to expense, but people are also being left in a state of uncertainty, of course, whilst Abebe is pending.  Some of that is inevitable, but I would hope that if there is anything that the parties to Abebe can do to keep the thing moving, that those steps are being taken.

MR TRACEY:   That will certainly be communicated to our instructors, your Honour.

HIS HONOUR:   I am conscious of the fact it is a 24-hour day and a 7-day week and we have not yet invented the 36-hour day and the 12-day week, though sometimes I wonder.

MR TRACEY:   It just feels like that sometimes.

HIS HONOUR:   Mr Hurley, I am minded simply to adjourn the matter to a date to be fixed pending some indication of the fate of Abebe.  If Abebe falls over, presumably this one would be brought on and it may then become the vehicle.  If Abebe goes forward, then that case may well affect the outcome of this.

MR HURLEY:   Yes, your Honour.  All I could do is reargue Abebe in front of your Honour, which would not necessarily be a profitable exercise.

HIS HONOUR:   I think that is going to be argued presumably before a Bench of five or seven.

The application will be adjourned to a date to be fixed.

Either party shall have liberty to apply on - if I said 72 hours written notice, would that be suitable, gentlemen?

MR HURLEY:   Yes, your Honour.

MR TRACEY:   Yes, your Honour.

HIS HONOUR:   Either party shall have liberty to apply on not less than 72 hours notice in writing to the opposite party.

If I reserve the costs and certify, is that suitable?

MR HURLEY:   Yes, your Honour.

HIS HONOUR:   Is there any other matter then that is required?

MR TRACEY:   No, your Honour.

MR HURLEY:   No, your Honour.

HIS HONOUR:   Thank you for your assistance.  Those orders are made.  I will adjourn.

AT 9.45 AM THE MATTER WAS ADJOURNED