Das, Ex parte - Re Ruddock (M40-98 ) CHH

[2000] HCATrans 90

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 PHILIP RUDDOCK in his capacity as the MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

Ex parte -

SHIU PRAVEEN LATA DAS

Prosecutor

HAYNE J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON THURSDAY, 16 MARCH 2000, AT 9.44 AM

Copyright in the High Court of Australia

MR T.V. HURLEY:  If it please your Honour, I appear on behalf of the prosecutor in this matter.  (instructed by Nevett Ford)

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

HIS HONOUR:   Yes, now, where are we up to with Mr Das’s case?

MR HURLEY:   The matter was before your Honour some time ago ‑ ‑ ‑

HIS HONOUR:   Some considerable time ago.

MR HURLEY:   And it was adjourned pending consideration of the jurisdiction of the Federal Court to entertain any remitter of it.  The Federal Court has given a decision last December ‑ ‑ ‑

HIS HONOUR:   Applicant A.

MR HURLEY:   In Applicant A, your Honour, which is ‑ ‑ ‑

HIS HONOUR:   Where their Honours observed the point which I was told in the course of the hearing that, in this Court, did not exist, A fact which seems not to have come to the notice of their Honours, at least in their judgment, but there we are.  Yes.

MR HURLEY:   Your Honour, the first question that arises in today’s matter is whether this is a matter that can or should be remitted to the Federal Court, it being the court that has jurisdiction.  That is a point, your Honour, that itself is not uncomplicated.  Your Honour will recall in this that there was a primary decision to refuse a visa in Suva on 28 November 1996.  If I can outline the argument, your Honour.  The Australian supporter of my client sought internal review under provisions of the Migration Act that then existed from a body called MIRO, the Migration Internal Review Office.

That body decided, by a letter dated 19 December 1996, that the prosecutor meets the criteria for the tourist visa and also advised that the matter had been “remitted”, if I can put that word in parenthesis, to the decision‑making office in Suva for further processing against any criteria still outstanding.  At that time, your Honour, the Migration Act, in section 341, authorised a review officer to do four things, in section 341(2) (a) to (d).  The review officer could affirm the decision; the review officer could vary the decision.  This is paragraph (c), your Honour:

if the decision relates to a prescribed matter - remit the matter for reconsideration in accordance with such directions or recommendations of the review officer as are permitted by the regulations.

Or (d):

set the decision aside and substitute a new decision.

Your Honour, the order nisi that is before this Court is based on the proposition - your Honour will recall what I have just described, that the terms of the decision which are set out at exhibit SD5 to the affidavit of the prosecutor, sworn 27 May 1998, conclude by observing:

I have remitted her application to the primary decision office, Suva, for further processing against any criteria still outstanding.

Your Honour, this submission, even in outline, if I can submit to the Court photocopies of the relevant legislation, if that would assist your Honour and my learned friend ‑ ‑ ‑

HIS HONOUR:   While you are interrupted, where is this submission heading?  What is the point to which you are seeking to come eventually?

MR HURLEY:   The Full Court, in Applicant A, concluded it had no jurisdiction because that was an RRT reviewable decision.  It may be said here, your Honour, that the Full Court lacks jurisdiction because this was an IRT reviewable decision.  We say that - the Full Court, that it is not an IRT reviewable decision.

HIS HONOUR:   Well, what are you going to ask me to do?  To remit?

MR HURLEY:   To remit it as another decision relating to visas under section 475(1)(c).

HIS HONOUR:   If I do that, why should I not do it at your risk, that is, rather than express any view on jurisdiction, make the order for remitter, leaving the Federal Court to determine that question of jurisdiction for itself.

MR HURLEY:   There is no reason why your Honour should not do that.

HIS HONOUR:   It would be at your client’s risk, let there be no doubt of it, that if, in truth, the Court has no jurisdiction, your client takes a path that would seem to lead her nowhere.  But if that is what is asked, why should I not?

MR HURLEY:   Your Honour, that is the submission of the prosecutor, that the matter be remitted.  It is our submission that the Federal Court does have jurisdiction, as I was leading to, because it is a decision – the IRT, in essence, your Honour, only had jurisdiction to review decisions to refuse a visa.  This was a decision to grant a visa but grant it with a condition and we submit that the decisions in that, and other decisions concerning a visa, within section 475(1)(c), that the Federal Court has jurisdiction to determine.

HIS HONOUR:   Yes, well, if I can interrupt you there.  Mr Tracey, if that course is sought, what do you say I should do?

MR TRACEY:   Your Honour, subject to it being clear that the Minister’s rights, in all respects, are reserved, in the event that it is remitted and, in particular, that the Minister will be free to argue against jurisdiction if so advised, and be also free to invite the Court to refuse the application to make the order nisi on the basis that there is no arguable case, we would not oppose that course, your Honour.

HIS HONOUR:   Yes.  Do you, by any chance, have a form of words that you say would achieve the result which you would seek to achieve in this respect?  Do you want to pause and consider that?

MR TRACEY:   I would have thought, your Honour, if your Honour merely remitted the application to the Federal Court in the normal way, then it is implicit in that that the matter resumes, as it were, from here, in front of the Court and, therefore, the Minister’s position is protected.  I merely said what I did for the benefit of transcript.

HIS HONOUR:   Yes, I understand that.  What had occurred to me was to say that without determining any question touching the jurisdiction of the Federal Court of Australia in respect of this application, or remit the application.

MR TRACEY:   Perhaps your Honour might be disposed to add, or passing on the issue of whether orders nisi should issue.

HIS HONOUR:   If I remit the application for order nisi, then what has gone down is the application.  No order nisi is made and it seems to me that you are adequately protected.

MR TRACEY:   Yes, your Honour.

HIS HONOUR:   Well, let me, perhaps, return to Mr Hurley.  Mr Hurley, if I were to make an order in form to the general effect that, without determining any question touching the jurisdiction of the Federal Court of Australia in respect of this application, order remitter of the application for order nisi to that court and otherwise follow the common form of order for remitter, what do you say?

MR HURLEY:   That would be an appropriate order, your Honour.

HIS HONOUR:   Yes, there will be orders to that effect. 

I will order that the costs of this application and reserved costs be costs in the proceedings in the Federal Court. 

I will certify for the attendance of counsel.

But otherwise make a common form remitter order preceded by the words to the effect that, without determining any question touching the jurisdiction of the Federal Court of Australia in respect of this application, the application for order nisi is remitted to that court.

MR TRACEY:   If your Honour pleases.

HIS HONOUR:   Thank you.  Call the next of the matters, please.

AT 9.54 AM THE MATTER WAS CONCLUDED