Durairajasingham, Ex parte - Re Min for Imm & Multicult Affs

[1999] HCATrans 423

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney   No S98 of 1996

In the matter of -

An application for Writs of Prohibition, Certiorari and Mandamus and an Injunction against THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS OF THE COMMONWEALTH OF AUSTRALIA

First Respondent

ROSLYN SMIDT sitting as the REFUGEE REVIEW TRIBUNAL

Second Respondent

SHUNMUGAM NGANASAMANTHAM in his capacity of principal member of the REFUGEE REVIEW TRIBUNAL

Third Respondent

Ex parte -

KUMARAKULASINGHAM DURAIRAJASINGHAM

Prosecutor

McHUGH J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON MONDAY, 29 NOVEMBER 1999, AT 10.00 AM

(Continued from 3/11/99)

Copyright in the High Court of Australia

_______________________

MR R.W. KILLALEA:   I appear for Mr Durairajasingham.  (instructed by Foliaki-Singh & Associates)

MR R.T. BEECH-JONES:   I appear on behalf of the Minister.  (instructed by the Australian Government Solicitor)

HIS HONOUR:   Well now, what is the situation?

MR KILLALEA:   Between us, we seem to be in agreement that the best way to proceed would be by way of - having it heard before the High Court.

HIS HONOUR:   I am sorry, that it should be heard before the High Court?

MR KILLALEA:   Yes, that the whole of the matter, that is that matter - so much of the matter that was recovered by the remitter and so much of the balance as remained in the High Court subject to that remitter and on account of the invalidity in the remitter.

HIS HONOUR:   Well, arguable invalidity.

MR KILLALEA:   Yes.

MR BEECH-JONES:   Could I just clarify that, your Honour?

HIS HONOUR:   Yes.

MR BEECH-JONES:   I may have inadvertently misled my friend.  What I suggested was that all the issues be heard together.  We would contend that the remitter was nevertheless valid but in the event your Honour does not agree with that, that your Honour then deal with the remaining grounds that were, in any event, remitted, without conceding that that was the case.  It should seemed as a matter of efficiency they could easily be dealt with together rather than splitting the issues up.

HIS HONOUR:   Yes.  Now, I take it there is no further evidence in this matter?

MR BEECH-JONES:   Your Honour, the only further merit evidence, if it was considered necessary, would be the issue whether there was a slip or omission in the making of the order.  I mean, if my friend was to concede that, we would not need that but otherwise to formally bring ourselves within the slip rule in relation to the remittal order - I mean, in my submission, it is pretty clear it was a mistake but we may need to put on a short affidavit to that effect, to demonstrate that - - -

HIS HONOUR:   Yes.  Well, I would be very surprised if the slip rule has anything to do with it.

MR BEECH-JONES:   Well, in the event - just to at least leave the argument open.  Subject to that, your Honour - and I have not raised it with my friend, but otherwise it would seem to me a matter quite suitable for reasonably full written submissions so as to save your Honour's hearing time.

HIS HONOUR:   Yes.  Well, subject then to possibly filing some affidavit on the slip rule, the matter is ready to be heard on argument?

MR BEECH-JONES:   Yes, your Honour.

HIS HONOUR:   Well, given the delay in the matter, the sooner it is heard the better.  What is an appropriate date?  Have counsel discussed this at all with Registry? 

MR BEECH-JONES:   No, your Honour.  I must say I did not know my friend was in it until he actually came into Court this morning but, needless to say, your Honour's and the Court's convenience - assuming your Honour is to hear it, the Court's convenience is the starting point.

HIS HONOUR:   Yes.  Unless counsel are inconvenienced, I would propose to hear the matter on 20 December.

MR BEECH-JONES:   That is convenient to me.  I do not know my friend's position.

MR KILLALEA:   Yes, that will be convenient, your Honour.  Now, is that the whole of the matter or just in relation to the remitter and as to whether that - - -

HIS HONOUR:   No, we would hear the whole argument.  You can reargue the points that were heard before Justice Davies.  But you should also deal with the question of the validity of the remitter because if it has been - I know we are going to have to decide this point, because if it has been validly remitted to Justice Davies, then he has made the decision on it and it is not for me then to go over it again.  If, on the other hand, I came to the conclusion it was invalidly remitted to Justice Davies, then I would decide the whole matter.  But you cannot avoid the question of remitter.  It goes to my jurisdiction as well as to Justice Davies.  So, I want argument on that as well.

MR KILLALEA:   Yes.

HIS HONOUR:   I do not want a two-stage process in this particular case.  I think enough time has gone by.  We must get to grips with the real issues in the case.

MR KILLALEA:   Yes.  I have shortly indicated to my friend this morning that it may be that there are other arguments as to why it should not have been remitted, one of them being that, in a sense, time had run out in the Federal Court and query, whether - - -

HIS HONOUR:   Well, if it goes to invalidity, if it is a discretionary ground, I do not think that would be of much assistance to me or relevance but it is a matter for you to deal with.  I would like quite extensive written submissions.  Regrettably, under this legislation which takes away so much of the jurisdiction of the Federal Court, this Court could easily turn into a trial court for immigration matters.  The Court is going to have to design procedures to minimise the impact on this Court's time brought about by this legislation and one of them is obviously to require written submissions as much as possible.  Is there anything further?

MR BEECH-JONES:   Your Honour, there is just one matter.  At the moment what your Honour has before you is an application for an order nisi.  It seems that perhaps that should become an application for an order absolute in the first instance rather than approach it on an order nisi basis, which is a bit - - -

HIS HONOUR:   Well, there is a question whether - I mean, ordinarily it goes before the Full Court.

MR BEECH-JONES:   I think your Honour, there is a power - - -

HIS HONOUR:   Yes, I know there is.

MR BEECH-JONES:   - - - to make provision that it become an order absolute.  Otherwise, we are in an interlocutory injunction test equivalent to ‑ ‑ ‑

HIS HONOUR:   Yes.  Well, you can address those issues in your arguments.

MR BEECH-JONES:   Thank you, your Honour.

HIS HONOUR:   You follow that, Mr Killalea?

MR KILLALEA:   Yes, thank you, your Honour.

HIS HONOUR:   Thank you, gentlemen.

AT 10.08 AM THE MATTER WAS ADJOURNED
UNTIL MONDAY, 20 DECEMBER 1999