Durairajasingham, Ex parte- Re Minister for Immigration

[1996] HCATrans 162

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 -

DURAIRAJASINGHAM

Prosecutor

GAUDRON J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON THURSDAY, 6 JUNE 1996, AT 9.31 AM

Copyright in the High Court of Australia

_______________________

MR S.W. TILMOUTH, QC:   May it please your Honour, I appear with my learned friend, MS E.A. WILKINS, for the prosecutor.  (instructed by Kessels & Associates)

MR S.J. GAGELER:   If your Honour pleases, I appear with DR J. RENWICK for the respondent.  (instructed by the Australian Government Solicitor)

HER HONOUR:   Yes, Mr Tilmouth.

MR TILMOUTH:   May it please your Honour, if this was an ordinary application for prerogative relief, we would simply be submitting to an order for remitter back to the Federal Court.  Ordinarily, of course, that would be - - -

HER HONOUR:   You have a preliminary step, have you not?

MR TILMOUTH:   Well, there may be several but I am not sure which one your Honour has - - -

HER HONOUR:   Yes, that is right.  First of all, if it were an ordinary matter, would you be entitled to an order nisi which might be remitted, more particularly, and assuming for the moment that it is such a one, were you have proceedings on foot in another court?

MR TILMOUTH:   Yes.  Your Honour has no doubt read the initial submission we put in.

HER HONOUR:   Yes.

MR TILMOUTH:   And the one we put in this morning.

HER HONOUR:   Yes.  But my understanding of fairly basic law is that you cannot go around proceeding in two courts at once with respect to the same matter.  It is said to be, generally, vexatious to proceed in separate courts with respect to the same controversy.

MR TILMOUTH:   Yes, or sometimes, with respect, forum shopping.  The reason for that extraordinary step in this case, your Honour - - -

HER HONOUR:   I understand your reasoning.  The question is whether it is permissible.

MR TILMOUTH:   We did it for this reason, your Honour:  under the Migration Act, if we did not issue within the 28 days there was simply no power to extend.  Under 476 of the Migration Act, if it applies to us, there are very limited grounds of review.  One of our arguments is that section 476 does not apply retrospectively so in respect to us, that the old AD(JR) regime is applicable.  We issued, therefore, in the Federal Court, to preserve that situation, although there are three decisions of single judges against us on that point.  That is the reason we proceeded in that court.

We issued in this Court at the same time, with the conscious view of openly letting the courts and the parties know what we were doing because if 476 applies to us, on the face of it, the application for prerogative relief in this Court is much wider than review under section 476, and that is why we took that extraordinary option because we are one of these transitional cases.

HER HONOUR:   As I said, I understand your reasoning.  The question is, is it a step that is permitted by law?

MR TILMOUTH:   In our submission, it would only be impermissible if it truly amounted to an abuse of process.

HER HONOUR:   It looks very much like it to me.

MR TILMOUTH:   With due respect, your Honour, that extraordinary step was only taken because, as I have said, there is an outstanding issue on 476.

HER HONOUR:   Let us be practical about this.  The basis of the rule which prevents you proceeding with the one controversy in different courts has been explained in relation to criminal cases and the rule against double jeopardy.  You just cannot go around facing the possibility that different courts will come to different answers with respect to the same controversy.  It is as simple as that.  You have to elect.

MR TILMOUTH:   May it please your Honour, I accept the principle.

HER HONOUR:   Then, when it is applied, the consequence is you must elect, is it not?

MR TILMOUTH:   With respect, the outstanding difficulty is whether or not section 476 applies to this case in the Federal Court.

HER HONOUR:   I understand your difficulty.  The principle, however, is clear.  There may be other means by which you can challenge the operation of 476.  Whether or not that is so, it does not seem to me to alter the fact that you cannot have separate proceedings with respect to the same controversy pending in separate courts.

MR TILMOUTH:   The further point I would make about that, with respect, whilst again accepting the general principle, there is also an outstanding issue whether it is for practical purposes the same controversy because that depends on the construction of 476 itself.  If 476 is confined and applies to our case then, arguably, it is not.  Would your Honour pardon me for a moment on the question of election?

HER HONOUR:   Yes, certainly.

MR TILMOUTH:   I am obliged, your Honour.  If we were forced to an election, we would elect for the proceedings currently on foot in the High Court because of the risk that 476 would confine our judicial review.

HER HONOUR:   Very well.

MR TILMOUTH:   Would your Honour prefer me to proceed at this stage on the matter or - - -

HER HONOUR:   Well then, the next question is whether you would, as one proceeding in any event, be entitled to an order nisi?

MR TILMOUTH:   In our submission, we would.  The question is only whether or not - - -

HER HONOUR:   The main basis of your relief is certiorari.

MR TILMOUTH:   In the end result it is, yes.

HER HONOUR:   And, perhaps, injunction.

MR TILMOUTH:   Yes.

HER HONOUR: Injunction brings you clearly within 75(v) of the Constitution.

MR TILMOUTH:   That is our argument, yes.

HER HONOUR:   I suppose you say, as you seek an injunction, you do not even have to establish jurisdictional error.

MR TILMOUTH:   That would be our submission, yes.  Any of the errors, particularly of law, would be sufficient at least to grant an order nisi, for practical purposes.

HER HONOUR:   Or to grant an injunction.

MR TILMOUTH:   Or to grant an injunction, rather, yes.  The difficulty we have, your Honour, apparent from the papers is this vexed question of section 485:  whether, on remitter, the Court can only remit part of the matter or whether or not it is entitled to remit the whole matter.  Our submission, in short, would be - - -

HER HONOUR:   There is no doubt about what the Court could do.  The Court can remit whole or part.  The question is what consequences attend the choice made.

MR TILMOUTH:   Yes.  I mention what the Court could do because in the case of Bedlington his Honour Justice Gummow seemed to think that perhaps 485 conditioned the power to remit.

HER HONOUR:   What does 485 say?  I have not been favoured with an Act apparently.

MR TILMOUTH:   We have a spare one here, your Honour, if that is convenient.

HER HONOUR:   Thank you.

MR TILMOUTH: Your Honour, as a precursor to 485, normally the matter could be remitted in whole to the Federal Court because of sections 39B and 44 of the Judiciary Act.  In that context, 485(1) provides that:

In spite of any other law, including section 39B of the Judiciary Act 1903, the Federal Court does not have any jurisdiction in respect of judicially-reviewable decisions or decisions covered by subsection 475(2), other than the jurisdiction provided by this Part or by section 44 of the Judiciary Act 1903.

Now, what that does, in our submission, is it puts aside for Migration Act cases the ordinary jurisdiction of the Federal Court under 39B and its effect is that the only jurisdiction on remitter of the Federal Court is that limited by this Part.

HER HONOUR:   And what does that leave us with?

MR TILMOUTH:   That means we are driven back to a prerogative writ which - - -

HER HONOUR:   No, you misunderstood my question.  What jurisdiction does that leave the Federal Court in this case?

MR TILMOUTH:   A partial jurisdiction to consider prerogative relief but severely confined to the grounds of relief that are specified in section 476, in our submission.  I say that, your Honour, because of section 485(3).  Subsection (2) is irrelevant to this case.  Subsection (3) provides:

If a matter relating to a judicially-reviewable decision is remitted to the Federal Court under section 44 of the Judiciary Act 1903, the Federal Court does not have any powers in relation to that matter other than the powers it would have had if the matter had been as a result of an application made under this Part.

HER HONOUR:   Yes, and what are they?

MR TILMOUTH:   They are the 476 powers, your Honour.  Section 476, your Honour, provides for the mechanism of review.  To summarise them briefly:  paragraphs (a) to (g) limit to some extent what would normally be available under Administrative Appeal(Judicial Review) criteria.  But subsection (2) is the key provision, your Honour.   Section 476(2)(a) excludes:

a breach of the rules of natural justice -

so if this matter was remitted, the natural justice limb would go.  Subsection (b) - - -

HER HONOUR:   Can I just interrupt you there?  Does it exclude actual bias, the ground of actual bias?

MR TILMOUTH:   No, but it excludes every other form of bias.

HER HONOUR:   Where does actual bias come in?  Back over - - -

MR TILMOUTH:   Section 476(1)(f), your Honour:

that the decision was induced or affected by fraud or by actual bias.

HER HONOUR:   Yes, thank you.

MR TILMOUTH:   Constructive, implied bias, or prejudgment, which is probably the better argument for us in this case, is excluded.

HER HONOUR:   Sorry, which?   Constructive bias?

MR TILMOUTH:   Constructive or implied bias or prejudgment.

HER HONOUR:   Well, prejudgment is actual bias, is it not?

MR TILMOUTH:   There is some difficulty about that on the cases.  Our argument is it could be and if we were confined with 476, certainly that would be our argument.  But, in any event, clearly, there is a marked restriction under the rubric of bias by virtue of subsection (f).  I have already mentioned that natural justice is excluded under (2)(a).  Under (2)(b), the Wednesbury principle is excluded. 

Furthermore, your Honour, under subsection (3), the question of an improper exercise of power is also limited and under subsection (d) - - -

HER HONOUR:   Is that relevant in this case?

MR TILMOUTH:   Yes, it is, your Honour, especially to the extent of ‑ ‑ ‑

HER HONOUR:   Which ground does it go to?

MR TILMOUTH:   Failing to take into account relevant considerations.  That is subsection (3)(e).  That appears to be excluded as well.  So, our point is, if your Honour pleases, on the face of section 485, if the matter is remitted, a large section of the argument - - -

HER HONOUR:   This assumes but does not put any argument to the question whether 476 applies in your case.

MR TILMOUTH:   That is true but, in our submission, it apparently clearly does, by construction of 485, because, your Honour, 485(3) simply refers to “a matter relating to a judicially-reviewable decision”.  Now, this matter, of course, relates to a judicially-reviewable decision.  Indeed, the application in the Federal Court was just such an application.  The definition of “judicially-reviewable decision”, your Honour, is in 475(1), and (1)(b) is relevant here, “decisions of the Refugee Review Tribunal”.      So that when one goes back to 485(3) - - -

HER HONOUR:   When did these provisions come into force?

MR TILMOUTH:   1 September 1994.

HER HONOUR:   With respect to decisions already made?

MR TILMOUTH:   On the current construction, your Honour, with respect to decisions made after that date.

HER HONOUR:   And this was such a decision?

MR TILMOUTH: Yes, this decision was made well after that date. In fact, the only step before that date, your Honour, was the original application for the protection visa. All other matters occurred post the Reform Act which introduced 476. So, your Honour, under section 485(3), the initial criteria, “a matter relating to a judicially-reviewable decision” is undemanding. It only refers in globo to that type of matter. And, of course, where it is remitted under section 44 of the Judiciary Act, in our submission, the only mechanism that such a matter could be remitted in the first place would be by invoking the jurisdiction of the High Court, the original jurisdiction on prerogative relief, so that, in my submission, the only subject matter that 485(3) can relate to is this sort of matter before the Court now.

Then, of course, the rest of the section says that the Federal Court only has the powers that it would have if the matter had been as a result of an application made under this Part.  In other words, the only powers that the Federal Court has on remitter is the powers it would have had if it was considering the case de novo as a review under section 476. 

Now, if that provision is valid, what it does, if the Court pleases, it means that if the High Court heard the matter, it could hear the matter entirely at large confined only by the ordinary principles relating to prerogative relief, whereas the Federal Court, on remitter, would be severely constrained to deal with it in a much more limited way.

HER HONOUR:   But, as occurred in the case which was heard by Justice Gummow, you can send part of it.

MR TILMOUTH:   I accept that, your Honour.

HER HONOUR:   Given the nature of this Court, as the final appellate Court and the Constitutional Court with an extraordinarily heavy workload, why would it not be remitted as to that part which the Federal Court could deal with?

MR TILMOUTH:   In a word, your Honour, that would be to severely fragment - - -

HER HONOUR:   Well, it may be to severely fragment but so be it.  That is the effect of the legislation.

MR TILMOUTH:   True.  I have another point to make about the legislation, may it please your Honour, but in a submission we filed this morning we have tried to demonstrate in paragraph 3 that effectively the Federal Court would be dealing with the case with one hand tied behind its back.

HER HONOUR:   That may be; that may be.

MR TILMOUTH:   In Bedlington, your Honour, the issue was neatly severable. It related to whether or not a delegation was a valid delegation. But, your Honour, we understand the practical difficulties and the workload of the High Court and such factors. But, your Honour, in our submission, there is a more fundamental point here and that is that if this Court remits a matter to the Federal Court it is still remitting its original jurisdiction to the Federal Court under the Constitution and when the Federal Court comes to consider, say, this case on remitter, in our submission, it is still exercising the original jurisdiction of the High Court.

HER HONOUR:   That may be; that may be, but it is not jurisdiction which is  exclusive.

MR TILMOUTH:   No, but it is jurisdiction - - -

HER HONOUR:   Well, it puts it in the same position as any other original jurisdiction, including diversity jurisdiction and any other matter that can be dealt with by a court exercising federal jurisdiction.

MR TILMOUTH:   Yes, that may be so but, with respect, my submission is, your Honour, that it is incompetent for the Parliament, in such provisions as 485(3), to say that the Federal Court only has those limited powers.

HER HONOUR:   That may be but that is not raised by this case.  Your very application assumes the competency of Parliament to do that.  If you want to challenge that, you bring a separate proceeding.

MR TILMOUTH:   With respect, your Honour, we have endeavoured to challenge this matter in this proceeding.

HER HONOUR:   Well, you can challenge it in the Federal Court if you leave the matter in the Federal Court, I dare say, but you do not challenge it by leaving the matter here because the basis for the matter being here assumes the competence of the provision.  What section is it?

MR TILMOUTH:   Section 485(3), your Honour.

HER HONOUR:   Yes.  Well, it assumes that.  You have no basis for - well, you have some basis but you have no basis, really, for any relief other than dismissal of your application in this Court on the ground that it is proceeding in the Federal Court, unless you accept 485(3).

MR TILMOUTH:   With respect, one of the reasons why we issued concurrently in this Court is because ‑ ‑ ‑

HER HONOUR:   I understand your reasons.  As I said, they may be other ways of challenging it, but that does not give you the right to have proceedings running around in different courts at different times, and nor does it allow you to raise issues in a proceeding that are not properly raised by it.

MR TILMOUTH:   Your Honour, with respect, our point about 485(3) is that - perhaps I will put it this way.  In our submission, this Court is able to remit the whole matter, despite 485(3).

HER HONOUR:   Do you want to take the risk of having it remitted in its entirety?

MR TILMOUTH:   The point about that would be, of course, then it would be up to the Federal Court to determine whether or not ‑ ‑ ‑

HER HONOUR:    Well, the point about that would be that you should proceed with your Federal Court proceedings which are on foot and I will dismiss this application.

MR TILMOUTH:   The problem with dismissal, with respect, your Honour ‑ ‑ ‑

HER HONOUR:   I know what your problem is.

MR TILMOUTH:   And there is also a time limit in this Court, with respect, your Honour, as well.

HER HONOUR:   I know what your problem is.  As I said, you have other ways of challenging 485(3), if that is what you wish to do.  But you do not challenge it by the course you seek this Court to adopt at the moment.

MR TILMOUTH:   Your Honour, with respect, we would submit that it would be perfectly proper in this case before you to state a question of whether or not 485(3) is a valid law of the Commonwealth.

HER HONOUR:   You have not asked that.

MR TILMOUTH:   In one of our draft orders, your Honour, with respect, we are seeking such an order.  One of the applications we make this morning is that that question be stated to the Full Court.

HER HONOUR:   Very well. 

MR TILMOUTH:   I have some draft minutes, if that is convenient, or draft suggested minutes.

HER HONOUR:   But how does it arise in this Court?  Let me follow that through.  How does that question arise in this Court?  I can see how it arises in the Federal Court or how it would arise in the Federal Court.  How does it arise in this Court?

MR TILMOUTH:   It would only arise in the Federal Court if the matter were remitted.

HER HONOUR:   No, it would arise in the Federal Court if your proceedings in the Federal Court remained on foot in that court.

MR TILMOUTH:   But they are not prerogative relief, your Honour; that is only judicial review.

HER HONOUR:   I see.

MR TILMOUTH:   The judicial review, subject to the retrospective point, would be clearly confined by section 476.  That issue is beyond doubt.  It arises in this Court because it touches the question of whether or not this Court has jurisdiction to remit part of the matter or whether it has jurisdiction to remit the whole matter.  If we went back to the Federal Court and this matter was dismissed, there would be no dispute between ‑ ‑ ‑

HER HONOUR:   Why do you say there is no jurisdiction to remit part?

MR TILMOUTH:   Because we submit that what is being remitted is the jurisdiction of the High Court and Parliament cannot limit the jurisdiction of the High Court, it can only limit the jurisdiction to the Federal Court.

HER HONOUR:   That does not answer my question.  Why do you say there is no power in this Court to remit part of the proceedings?

MR TILMOUTH:   Of course there is, under section 44.

HER HONOUR:    All right, of course there is.  Now, in this matter the question only arises as to the validity of 485(3) if the whole of the proceedings are remitted to the Federal Court and the Federal Court says, “We can’t deal with this”.

MR TILMOUTH:   That is true.

HER HONOUR:    All right.  So there is no point in stating a case now.  It is an academic question at this stage.

MR TILMOUTH:   I accept, your Honour ‑ ‑ ‑

HER HONOUR:    Whereas there are other ways of challenging 485(3).

MR TILMOUTH:   True, but we could not challenge it in the Federal Court until there was at least a remitter of this Court, because the issue would not have arises, because that court’s jurisdiction was limited through the Migration Act.

HER HONOUR:   Do you want to risk the consequences in this proceeding of it being held that 485(3) is valid?

MR TILMOUTH:   With respect, your Honour, that issue has to arise sooner or later.

HER HONOUR:   Yes.  As I have been trying to tell you, there are other ways of testing the validity of it.

MR TILMOUTH:   I accept that, your Honour, but, with respect, only on remitter of the whole case.

HER HONOUR:   No, not.  You have standing to bring a separate proceeding in this Court, surely, to determine the validity of that.

MR TILMOUTH:   That would simply be, with respect, a proceeding for, say, a declaration of invalidity.  But practically, we could achieve the same thing, with respect ‑ ‑ ‑

HER HONOUR:   By remitter of the whole matter.

MR TILMOUTH:   Either that or referring the question of the validity of the section as a discrete point.

HER HONOUR:    But the question of validity does not yet arise, does it?  It only arises once the reference has been made.

MR TILMOUTH:   Justice Gummow, your Honour, in the Bedlington Case, seemed to think that legislative restrictions on remitter flowed from 485, and that would appear to be - it was only an extempore ruling, of course, without extensive reasons.  But that would appear, on the face of it, to be saying that the issue arose at the remitter stage because there was only power to remit so much of the matter as the Federal Court had jurisdiction under 476 to hear.  So in that sense, if that is right, it does appear to arise at this stage.

Does your Honour have a copy of the Bedlington Case?

HER HONOUR:   I do.

MR TILMOUTH:   The passage I had in mind, your Honour, was page 12 at line 7 to line 19.

HER HONOUR:   Are you looking at the transcript or ‑ ‑ ‑

MR TILMOUTH:   Yes, I am, your Honour, 4 April 1996.

HER HONOUR:   Page 12?

MR TILMOUTH:   Yes, your Honour.  Your Honour can see there are short extempore reasons:

In this matter, the jurisdiction of this Court under section 75(v) of the Constitution is invoked. The effect of the relevant legislation is to restrict what otherwise would be the full power of remitter to the Federal Court of Australia.

Then his Honour devolves into the particulars of the case.  Then I go to the last sentence, your Honour:

The legislative restrictions upon remitter flow from section 485 of the Act.

Does your Honour see that sentence.

HER HONOUR:    Yes.

MR TILMOUTH:   So, with respect, what his Honour Justice Gummow seems to be saying is that section 485(3), and indeed 485(1), because it excludes section 39B of the Judiciary Act, conditions the power of ‑ ‑ ‑

HER HONOUR:   Let me ask you this again.  Do you want the whole matter remitted to the Federal Court?  Do you want to take the risk?

MR TILMOUTH:   Well, your Honour, with respect, I am not entirely sure what you mean by “the risk”.

HER HONOUR:   The risk is this:  if you are seeking remitter of the whole matter, now or later, and 485 is valid, you will be left in the Federal Court with precisely those grounds which you ‑ ‑ ‑

MR TILMOUTH:   I understand.

HER HONOUR:   Now, that is the risk you take and it seem to me that puts you exactly in the position that your present proceedings enjoy in the Federal Court and if that is where we are going at the end of the day, I might as well dismiss this matter.

MR TILMOUTH:   May it please your Honour, with respect, that leaves us in a difficulty, because as per the initial discussion, if we were forced to election we would force for election in this Court because, on the face of it, we have wider grounds for review and if there is a risk entailed, then our preferred application would be that this matter be considered by this Court on its merits.  But the horns of the dilemma we were on when we considered this was the difficulty of the workload of the High Court and so on, the usual qualifications on remitter, and we have already conceded that normally it would be a remitter matter.  But in the end result, if we are driven home, our application would be that the matter be considered in this Court on the merits.

HER HONOUR:   In its entirety?

MR TILMOUTH:   Yes.

HER HONOUR:   You can assume that as things presently stand that is not an application that would be granted.

MR TILMOUTH:   With respect, the reason for that, of course, is the very difficulty of 476 being construed to confine the application.  We normally would not make that application to hear it in this Court but the jurisdiction ‑ ‑ ‑

HER HONOUR:    I know, but I am telling you not only normally would it not be granted, and it will not be granted, as things proceed on the arguments you have advanced.  It is just not a possibility because it is inconceivable that this Court should be - it is intolerable that this Court should be placed in a position, as will occur if it takes this whole matter on board, where every migration case will come to this Court.

MR TILMOUTH:   That seems to be one of the effects of this legislation, your Honour.

HER HONOUR:    It is not.  It is undoubtedly one for which those who appear for people claiming refugee status would contend, in the light of the legislation, but it is not the inevitable consequence of the legislation at all.

MR TILMOUTH:   Our very strong submission is, your Honour, the unlimited judicial review or prerogative relief is available in this Court and that cannot be abridged by any legislation, whether that is remitted or not ‑ ‑ ‑

HER HONOUR:   But the matter can be remitted in part and those parts which, if the legislation is valid, cannot be dealt with by the Federal Court will remain with this Court.

MR TILMOUTH:   That is another option, with respect.  In one sense there is no point in - except preserving the full rights of the prosecutor.  A partial remitter, of course, has no effect in the sense that it is already before the Federal Court on the other review and, of course, a partial remitter would not raise the 485(3) point.

HER HONOUR:   Right, but, as I said, I think - if you want me to remit it in its entirety ‑ ‑ ‑

MR TILMOUTH:   No, your Honour, the risk is too much, but ‑ ‑ ‑

HER HONOUR:   I think you had better think about what you do want.

MR TILMOUTH:   Your Honour, we do not want it dismissed, with respect.  If it comes to it, we would accept the partial remitter, but we would ask for the remainder to stay with this Court pending the outcome of the Federal Court proceedings.

HER HONOUR:   Yes.

MR TILMOUTH:   If your Honour was minded, as you have indicated, not to refer the matter on the merits, then we would prefer a partial remitter and preserve our rights with respect to the balance of it.

HER HONOUR:   Yes.

MR TILMOUTH:   But your Honour understands, of course, that we maintain that there is a problem, a very significant problem, with 485(3).

HER HONOUR:   I understand that.

MR TILMOUTH:   And the question must arise sooner or later, with respect, in our submission.

HER HONOUR:   I understand that, but why do you seek to do it ‑ ‑ ‑

MR TILMOUTH:   The only way it could be agitated was to initiate proceedings in this Court, basically.  That is why both proceedings were issued.  It would not have arisen if proceedings alone were issued in the Federal Court.  There had to be a remitter.

HER HONOUR:   Yes, but it will only directly arise if there is a complete remitter.

MR TILMOUTH:   In the Federal Court, yes.

HER HONOUR:   I just want to be sure, do you ask me to remit it in its entirety?

MR TILMOUTH:   No, your Honour, because of the risk that it will be held to be a valid law with respect to the jurisdiction of the Federal Court.  We would prefer the balance of the matter to remain with this Court.  In fact, could I rephrase that.  There is no point, with respect, in remitting only part of it because it is already before the Federal Court.  So our submission would be the appropriate step, if your Honour was not prepared to refer the merits or the constitutional point, is simply to adjourn the matter pending the outcome of the ‑ ‑ ‑

HER HONOUR:   No, Mr Tilmouth, let me make it clear.  Under no circumstances are there going to be two proceedings on foot in two different courts with respect to the one matter raising the same issues at the same time.

MR TILMOUTH:   In that case, with respect, your Honour, the remitter would only duplicate, of course ‑ ‑ ‑

HER HONOUR:   Well, I will dismiss it.  Let there be no doubt about that.  If the proceedings are to stay on foot in the Federal Court the proceedings here will be dismissed, on the grounds that there are proceedings elsewhere raising the same issues.

MR TILMOUTH:   Yes, but your Honour understands, of course, the ability to deal with them is quite different.

HER HONOUR:   That may be, but it is nonetheless - the fact that you get different remedies in different courts has never been an exception to the principle that you cannot have two proceedings on foot in different courts at the same time. 

MR TILMOUTH:   I have made my submissions about that, your Honour.  Do I understand your Honour correctly that you would be prepared to remit part of this matter at this stage?

HER HONOUR:   No.

MR TILMOUTH:   Then perhaps I have misunderstood your Honour.

HER HONOUR:   I would not be prepared to remit anything while the proceedings are on foot in the Federal Court.

MR TILMOUTH:   I understand, your Honour.  Well, I think I need to take instructions, but I think they will be that we would opt for these proceedings.

HER HONOUR:   I will hear Mr Gageler at this stage and see what he has to say.

MR GAGELER:   Your Honour, this is a really rather odd application and the nature of the application appears to have changed significantly in the course of my friend’s argument.  As I understand the present position, he is contemplating electing to remove the Federal Court proceedings entirely and to proceed only ‑ ‑ ‑

HER HONOUR:   Yes, to discontinue them, I should imagine.

MR GAGELER:   To proceed only in this Court, and to ask your Honour to remit to the Federal Court so much of the current proceedings in the High Court as raise the questions already in the Federal Court in the current proceedings that he is about to discontinue.  Now, that is a very odd scenario, and the existence of an adequate alternative remedy ‑ ‑ ‑

HER HONOUR:   He says there is not an adequate alternative remedy.  There can be no doubt that proceedings in the Federal Court, if instituted in that court rather than remitted to that court, cannot agitate the various matters that Mr Tilmouth wishes to raise.  There is a difference between the consideration whether there was an adequate alternative remedy and the consideration whether proceedings may be on foot in two places at the same time. 

MR GAGELER:   Yes.  Your Honour, I accept and understand his desire to maintain in this Court those grounds of review which are not available in the Federal Court.  I accept what he says about the application of section 485(3) and I accept what he says that the operation of section 485(3) if the entirety of the matter were to be remitted to the Federal Court.

HER HONOUR:   That will not happen.

MR GAGELER:   And he is not asking for that.  What he is seeking primarily, as I understand it, is to have the Full Court of this Court consider the constitutional validity of section 485(3).

HER HONOUR:   How can that be done?

MR GAGELER:   Well, it could be done by way of case stated, but it is an inappropriate exercise of the  ‑ ‑ ‑

HER HONOUR:   Has the question arisen?

MR GAGELER:   It does not arise until such time as a remitter ‑ ‑ ‑

HER HONOUR:   It might arise if I were actually asked to remit the whole matter, but that takes a risk that ‑ ‑ ‑

MR GAGELER:   That is right, a risk which he says he is now not prepared to take.  Your Honour, my position remains as set out in the written submissions, that is that these proceedings should not be allowed to continue in the High Court, at least in any active state, while the questions remain to be resolved in the Federal Court and, in my submission, a partial remitter would be a fairly vain exercise given that it would achieve nothing more than what is already in the Federal Court and the existing proceedings are the appropriate way to achieve whatever resolution is there available.  And, of course, your Honour ‑ ‑ ‑

HER HONOUR:   I think, Mr Gageler, what you are submitting is, is it not, that the Federal Court proceedings which are on foot are an adequate alternative remedy.

MR GAGELER:   They are, your Honour.

HER HONOUR:   That is your submission?

MR GAGELER:   That is my submission.

HER HONOUR:   All right.  It is not one that is immediately attractive, but if you rely on it, you had better elaborate it.

MR GAGELER:   Your Honour, there are some contingencies to be dealt with in the Federal Court.  The Federal Court proceedings do not rely entirely on the provisions of the Migration Act which confer jurisdiction.  The Federal Court proceedings also seek to invoke the provisions of the Administrative Decisions (Judicial Review) Act.  Now, that is an argument which the prosecutor seeks to make in the Federal Court.  Against it there are some decisions of single Judges of the Federal Court.  In favour of it there is a notion that by lodging his application before the commencement of the transitional provisions on 1 September 1994 the prosecutor has an accrued right to judicial review in accordance with the law as it previously existed.

HER HONOUR:   Mr Tilmouth said that cannot be so today.

MR GAGELER:   No, I do not think he did, your Honour.  Certainly, in his written submissions in paragraph 4 he said that he wished to maintain the position that the AD(JR) review was available and that the question is a very live one for the Federal Court.  It is one that has been referred to the Full Federal Court in the decision of Dai, to which I have referred in the written submissions, which is, on my instructions likely to be dealt with sometime in September.

HER HONOUR:   If I do not misunderstand things entirely, Mr Tilmouth said that all that had happened before 1 September 1994 in this case was the making of the application.

MR GAGELER:   Yes, that is right, the making of the original application for refugee status.  Now, it may or may not be, your Honour, that that gives the prosecutor an accrued right to review in accordance with the old law.  That is an issue which, if not resolved by Dai, will be, to some extent, addressed by Dai.  He seeks to maintain - - -

HER HONOUR:   When is Dai listed for hearing?

MR GAGELER:   I cannot say it has been listed for hearing, your Honour.  It has been recently referred to the Full Federal Court.  It is likely to be dealt with in September, on my instructions, although, on my instructions - of course, my client is a party to the proceedings - it is likely that my client will be making an application for expedition, given that there are very many applications in a similar position and the issue is one of some importance.

HER HONOUR:   Now, let me follow this through:  assume Dai is decided against your client and the same issue is raised in the proceedings before this Court, is it not?

MR GAGELER:   Yes, although - - -

HER HONOUR:   And it would be able to be remitted to the Federal Court?

MR GAGELER:   Your Honour, it does not arise in the proceedings before the High Court because it is a question of the jurisdiction of the Federal Court under the Administrative Decisions (Judicial Review) - - -

HER HONOUR:   So, the proceedings are not identical?

MR GAGELER:   Certainly not in their jurisdictional basis, no.  Mr Tilmouth’s  proceedings in the Federal Court seek to invoke two sources of jurisdiction.  One is the jurisdiction under the Migration Act and the other is the jurisdiction of the Administrative Decisions (Judicial Review) Act, whereas the proceedings in this Court, of course, seek to invoke only section 75(v) of the Constitution.

HER HONOUR:   Yes, but the grounds are, are they not - bearing in mind that Mr Tilmouth seeks an injunction and not merely prerogative relief - the same, are they not?

MR GAGELER:   Your Honour, in so far as Mr Tilmouth, in the Federal Court, invokes the Administrative Decisions (Judicial Review) Act, he relies upon precisely the same grounds as he relies upon in this Court under section 75(v), yes. So if, ultimately, Dai is decided in his favour and his case in the Federal Court is not relevantly distinguishable from Dai, and he is successful in his jurisdictional argument in his Federal Court AD(JR) proceedings, then these proceedings in the High Court are totally unnecessary.  He will have his day in court on all grounds in the Federal Court in the existing proceedings.  Your Honour, the question of those grounds available in this Court, not available the Federal Court, depends on a number of contingencies.

HER HONOUR:   Yes, I follow.  So, we have been put in a position where it is a lucky dip either way.

MR GAGELER:   The prosecutor is put in a position?

HER HONOUR:   Yes, and this Court.

MR GAGELER:   Your Honour, in my written submissions, all that I propose - - -

HER HONOUR:   No, but in fact this Court is being asked, on either basis, on either way that the parties put this matter, to buy a pig in a poke.

MR GAGELER:   Your Honour, I was trying to be more considerate to the prosecutor than that.  All that I proposed was that - - -

HER HONOUR:   I am suggesting that that is what you are asking him to do as well.

MR GAGELER:   Your Honour, may I respond.  No, is the short answer.

HER HONOUR:   Well, in depends on Dai.

MR GAGELER:   In part, your Honour, but that is a matter which is properly before the Full Federal Court and it is frankly not a High Court question.  All that I propose, your Honour, is that the current application be stood over until after the conclusion of the Federal Court application.  Then if there is anything left to argue about - - -

HER HONOUR:   What would be happening in the Federal Court proceedings?

MR GAGELER:   Two things, your Honour:  one is obviously it would make sense for the hearing of the Federal Court proceedings to take place after the decision in Dai and in normal listing procedures of the Federal Court, that would occur.

HER HONOUR:   What would happen to the prosecutor himself in the meantime?

MR GAGELER:   He has a visa which entitles him to remain in the country until the conclusion of the proceedings.  There is no difficulty about that and there is no prejudice to him in dealing with the matter in the way in which I suggest.

So, your Honour, if the Federal Court proceedings occur, may I say what could happen.  One is that there is found to be jurisdiction under the AD(JR) Act.  In that case, all grounds can be agitated in the Federal Court.  There is no need to bother this Court any further.  If not, then, at the very least, at the same hearing, the prosecutor will be able to agitate those grounds clearly available under section 476 of the Migration Act.  Now, it is only if - - -

HER HONOUR:   Is there any difficulty about the commencement of these proceedings if no order nisi is issued, these particular proceedings in the High Court?  Are they commenced on filing?

MR GAGELER:   Your Honour, they appear under Order 55 of the Rules to be commenced by the filing of the affidavit.

HER HONOUR:   You would be happy to, I take it, assent to the proposition that you regard the proceedings as having been commenced on that date and you would take no point to the contrary?

MR GAGELER:   No, not at all.

HER HONOUR:   Well, you would be happy to - - -

MR GAGELER:   I assent to that proposition, your Honour.

HER HONOUR:   Thank you.

MR GAGELER:   Obviously, in so far as matters are resolved in the Federal Court, there would be an issue estoppel or res judicata and the prosecutor could not agitate in this Court grounds already dealt with.

HER HONOUR:   That is wholly insufficient.  I am prepared to stand these proceedings over on undertakings that no action, that there will be no further step taken in the proceedings, in the Federal Court if that is possible - perhaps you will need the concurrence of a Federal Court judge to that proposition - and that the prosecutor has the right to elect whether to proceed on the proceedings in this Court or the proceedings in the Federal Court when the decision in Dai is given.  But that would mean there cannot be, as I have said, proceedings concurrent in two courts.  The proceedings will have to be temporarily stayed, whether by consent or by order, in the Federal Court until an election is made.  Do you understand that?

MR GAGELER:   I understand it.  May I make a suggested variation to it, given that we are all here and given that one or other proceedings have to be stayed:  perhaps one way of dealing with it would be to, by consent, stay the current proceedings in this Court but give the prosecutor leave to reapply in this Court, if so advised, after the decision in Dai?

HER HONOUR:   No.  There has to be an election made.  Taking a step in the Federal Court after today must be seen as an election to proceed with those proceedings.  Taking a step in this Court after today must be seen as

an election to proceed in this Court.  Both proceedings must be stayed until an election is made.

MR GAGELER:   The election is the prosecutor’s election so what your Honour is putting is properly something for Mr Tilmouth to consider.

HER HONOUR:   Would you consent to that course because that is the course which would bring about the result that you seek?

MR GAGELER:   Your Honour is asking me would I consent to a course which puts the prosecutor to an election?

HER HONOUR:   Yes, to a future election, that is, after Dai is decided.

MR GAGELER:   I would have to take some brief instructions on that.  Would your Honour excuse me.  Your Honour, we do not see it as a matter where our consent is necessary.  We will accept that if that is the course that your Honour proposes.

HER HONOUR:   Very well, thank you.  Now, Mr Tilmouth, you have heard that.  What I am suggesting is that proceedings in this Court be stayed and in the Federal Court be stayed - your taking such action as is necessary to bring about that result in the Federal Court - until you elect which should proceed, the election to be made when the decision in Dai is known.

MR TILMOUTH:   And on the undertaking, of course, that your Honour mentioned from the respondent.

HER HONOUR:   Yes.

MR TILMOUTH:   It was the undertaking about - well, the question of preserving the prosecutor’s position.  Your Honour, as to the thinking behind that proposal, we have no difficulty.  The only point we would make is that Dai may not resolve the issue of the transitional provisions for this case.  Your Honour would see from paragraph 2 of the written submission we put in this morning that the current case reserved for the Federal Court deals with rather different facts.  All the facts in that case, your Honour, application, the hearing and so on, all occurred before 1 September 1994 but the decision was delivered after that date.  Now, of course, if Dai went against us, well, that would be the end of it because our case stands much more worse than Dai on its facts.  On the other hand, if the decision in Dai was favourable, that would not necessarily resolve our case because our case - - -

HER HONOUR:   No, but you will still have to elect.

MR TILMOUTH:   If your Honour proposes that order, yes, but my point is that it still - - -

HER HONOUR:   There are not going to be two proceedings.

MR TILMOUTH:   We have understood that point, hopefully, very loudly and clearly, but your Honour has understood, of course, as the debate indicates, that we were on the horns of a dilemma and still are because one way or the other might have left us with an incomplete remedy which was available to us on all accounts before 1 September 1994 and that has been the difficulty all along.

It would be obvious too, with respect, your Honour, the decision to issue both proceedings was not made lightly.  On the contrary, it was a very considered decision because of the difficulty.

HER HONOUR:   And a wrong one.

MR TILMOUTH:   Maybe, with respect, but we have to protect our client’s interests.  Anyway, your Honour has said your Honour understands the bases.  It may have been wrong but it was not an easy decision.  It was very difficult.  So, my only qualification is the question of Dai may not resolve the issue from our point of view.

HER HONOUR:   Yes.  Well, you will still have to elect.

MR TILMOUTH:   If that is your Honour’s order, so - - -

HER HONOUR:   It is not a question of my order.  You must elect.  You cannot have the proceedings current at the same time.  The best you can have is to have them stayed until it is decided which will proceed.

MR TILMOUTH:   Yes.  With respect, your Honour, we have, to an extent, a disagreement with that.  I have already indicated we do not challenge the general principle but our submission would be that the proceedings are only of that category if they are an abuse of process.  Our submission, of course, is the 476 procedure is a very inadequate remedy and ‑ ‑ ‑

HER HONOUR:   That may be an inadequate remedy but it is a proceeding and that is why you may elect this Court.

MR TILMOUTH:   May it please your Honour, in our submission, on the ordinary principles of judicial review the question of whether there is a sufficiently available alternative proceeding - - -

HER HONOUR:   It is not the question whether there is a sufficiently available alternative proceeding.  The question is whether there is an available alternative remedy, an adequate alternative remedy.  Thus far, I am proceeding on the basis that there is not an adequate alternative remedy.  That does not go to the principle of there being two proceedings or the impossibility of there being two proceedings in two courts with respect to the same controversy at the same time.  It is an entirely different principle.

MR TILMOUTH:   I understand, with respect, but I beg to differ.  My submission would be that it goes merely to the question of discretion.

HER HONOUR:   Do you want me to determine that because, if I do, it may well result in dismissal of your proceeding here?

MR TILMOUTH:   I understand that, your Honour, and I not willing to take that step.  One thing is clear, I have not being willing to take those risks.  But, your Honour, the only thing that does continue to trouble the prosecutor is that, assume for the moment that after the Dai decision is handed down and we elect to discontinue the Federal Court, the difficulty still remains, with respect, of the question of the ability of this Court to remit whole or part of the matter.

HER HONOUR:   And if you want me to remit whole at that stage, that can be done with whatever those consequences should be.

MR TILMOUTH:   Our point there is, your Honour, the first question to be decided is, before that arises, the proper construction of section 485(3) of the Migration Act and its constitutional validity.

HER HONOUR:   If you wish to bring separate proceedings during the stay to determine that matter, that is a matter for you.

MR TILMOUTH:   With respect, we have understood that point but we have tried to persuade your Honour that the same thing could be achieved by simply stating the question without the need for another duplicating proceeding.

HER HONOUR:   So that you can then elect to ask for it only to be remitted in part?  That is not how it is done.  If you want to make a firm election here and now that the matter will be remitted in its entirety to the

Federal Court, then we have a real question.  Without that election it is hypothetical.

MR TILMOUTH:   That is true, may it please your Honour, but the risk is ‑ ‑ ‑

HER HONOUR:   I know what the risk is but it is a matter for you to determine what course you want to take.  You have your options.

MR TILMOUTH:   May it please your Honour, the current proposal by your Honour has the great advantage of time and hopefully mature affection.  But your Honour has understood my points and where, with respect, the areas of disagreement are, but I am content to submit to that order or, if needs be, even apply for it at this stage but the dilemma is still present for the prosecutor.

HER HONOUR:   I know the dilemma, but as I said there was a way of dealing with it.

MR TILMOUTH:   I have understood that ‑ ‑ ‑

HER HONOUR:   The order should be this, should it not?

1.        That upon the prosecutor’s undertaking to take whatever steps are necessary to secure a stay of the proceedings in the Federal Court of Australia, pending the outcome of the decision in the matter of Dai Xing Yao v Minister for Immigration and Ethnic Affairs (No.VG 388 of 1993), and upon the respondent’s acceptance that the proceedings were commenced in this Court on the day upon which the initiating affidavit was filed, these proceedings are stayed to enable the prosecutor to elect whether he wishes to proceed in the Federal Court or in this Court, that election to be made within 14 days of the decision of the Full Court of the Federal Court in Dai.

2.        Either party to have liberty to apply on 7 days notice.

3.        Certify for the attendance of counsel in chambers.

4.        Costs of todays proceedings to be the prosecutor’s costs in the application.

Is there anything else which need be attended to?

MR TILMOUTH:   There is no further matter, thank you, your Honour.

HER HONOUR:   Very well.  I take it counsel will, without the necessity for any order, inform the Registrar as soon as may be as to what is to happen.

MR TILMOUTH:   Yes, we will give an undertaking, of course.

MR GAGELER:   Yes, your Honour.

HER HONOUR:   Very well.  We will now adjourn.

AT 10.32 AM THE MATTER WAS ADJOURNED