El Ess & Anor, Ex parte - Re MIMA & Ors

[2002] HCATrans 504

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry         
  Melbourne  No M96 of 2001

In the matter of -

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

First Respondent

The Officer of the Commonwealth at the Australian Embassy in Beirut in Lebanon who granted the Prosecutors’ visitor visas on 24 December 1996 (in his or her capacity as a delegate of the First Respondent for granting visas under the Migration Act 1958 (Cth))

Second Respondent

JAMES MAHONY (in his capacity as the presiding member of the Migration Review Tribunal for the purposes of the Migration Act 1958 (Cth)

Third Respondent

Ex parte –

FAWZIE MOHAMAD EL ESS

First Applicant/Prosecutor

MUSTAPHA MOHAMED EL ESS

Second Applicant/Prosecutor

HAYNE J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON THURSDAY, 28 NOVEMBER 2002, AT 10.35 AM

Copyright in the High Court of Australia

________________

MS D.S. MORTIMER:    If it please the Court, I appear on behalf of the prosecutors.  (instructed by Erskine Rodan & Associates)

MR C.J. HORAN:   If your Honour pleases, I appear for the respondent.  (instructed by Clayton Utz)

HIS HONOUR:   Now, Ms Mortimer, why should I not remit this?

MS MORTIMER:   Your Honour, we are in enthusiastic agreement with that proposition.

HIS HONOUR:   Then perhaps I shall hear from Mr Horan.  I should say, before hearing him though, that I have a certificate from the Deputy Registrar that she has been informed by Clayton Utz, solicitors for the third respondent, that the third respondent submits to any order of the Court, save as to costs.  Yes, Mr Horan.

MR HORAN:   The principal reason why this matter should not be remitted is that it seeks review of a decision which is almost five years old.

HIS HONOUR:   Yes, and you say it is manifestly hopeless and should fail.

MR HORAN:   Yes.

HIS HONOUR:   Now, those arguments may have some force.  They may have, indeed, considerable force, but for my own part it seems to me that if a matter of this kind can be dealt with by the Federal Court, absent unusual circumstances, the general rule should be that it should be.  I say that for this reason, Mr Horan:  the press of business in the Court is always large; the press of business in migration matters at the moment is especially large.  I could understand a possible point of view being taken by persons in the position of those for whom you appear that were they to consent to remitter they might thereby be taken as implicitly accepting that the case had sufficient merit to warrant remitter.  Do not therefore understand what I say as any express or implicit criticism of the course that has been taken in this matter.

I would hold the view quite strongly that a consent to remitter to the Federal Court does not and should not be taken, whether by opposite parties or the court to whom it is remitted, as expressing any view by the party consenting to or seeking remitter about the merits of the application that is to be remitted.  It may be that those who instruct you in matters of this kind may see it as desirable to make that explicit in correspondence.  For my own part, I would regard that as wearing a belt and braces rather than doing anything essential.  But given the press of business on the Court, absent unusual circumstances, if a case can be remitted to the Federal Court, there is much to be said for the view that the parties should seek it by consent.

I emphasise, I am making no criticism of the attitude that has been adopted by either party in this case.  It is not to be understood in that way at all, but it seems to me that even if a respondent is of the view that that which is advanced against it is untenable, absent unusual circumstances there should nevertheless be remitter.

Now in light of that pronunziamento, Mr Horan, what would you wish to say?

MR HORAN:   I am grateful for your Honour’s guidance and there perhaps is not much I could add.  As your Honour knows, the great majority of applications in this Court are either remitted or partially remitted.

HIS HONOUR:   Are remitted, yes.

MR HORAN:   And the only circumstance in which a different approach is considered is where there is what might be called a “short point” whereby

the matter can be disposed of in not too much more time than it would take to remit, the application can be finalised in this Court.

HIS HONOUR:   I understand why those for whom you appear would see the virtue in that and, ordinarily speaking, I would encourage it but the press of business is now such that I must actively seek to discourage it.

MR HORAN:   Yes.  Well, in light of those observations, your Honour, I would seek to put nothing further in favour of dismissal.

HIS HONOUR:   Yes.  Ms Mortimer, if I were to make an order for remitter in ordinary form, that is to remit the application for – it is still an application for orders nisi, is it not?

MS MORTIMER:   It is, your Honour, yes.

HIS HONOUR:   Make an order in ordinary form with the costs to be costs in the application, certifying for counsel.  Is there anything further you would seek?

MS MORTIMER:   No, we are content with that, your Honour.

HIS HONOUR:   Yes.  Mr Horan, do you wish to have anything said?

MR HORAN:   No, your Honour.

HIS HONOUR:   Very well, there will be orders in those terms.

AT 10.41 AM THE MATTER WAS CONCLUDED