F v Min for Immig & Multicultural Affairs

[1997] HCATrans 188

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S63 of 1997

B e t w e e n -

F

Plaintiff

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Defendant

MURRAY GERKENS (A MEMBER OF THE REFUGEE REVIEW TRIBUNAL)

Second Defendant

Application for interlocutory orders

GUMMOW J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 29 JULY 1997, AT 9.31 AM

(Continued from 16/6/97)

Copyright in the High Court of Australia

MR J.A. COOMBS:   I appear for F.  (instructed by H.S. Wise Gershov & Co)

HIS HONOUR:   You appear with Mr Gersten?

MR COOMBS:   Indeed.

MR J.M. GERSTEN:   I am a barrister of this Court, your Honour.

HIS HONOUR:   I will talk to Mr Coombs, Mr Gersten.  So, you appear with Mr Gersten?

MR COOMBS:   Yes, your Honour.

MR A.L. CAVANOUGH, QC:   If your Honour pleases, I appear on behalf of the first defendant.  (instructed by the Australian Government Solicitor)

MR G. PEEK:   If your Honour pleases, I seek your leave to appear today on behalf of the second defendant.   (of the Australian Government Solicitor)

HIS HONOUR:   You do not need leave to do that.

MR PEEK:   Indeed, your Honour.  Having been excused on the last occasion, the second respondent does believe that it may be of assistance to the Court, given some developments that have occurred.

HIS HONOUR:   Thank you.  Yes, Mr Coombs.

MR COOMBS:   Your Honour, I seek leave to file in Court an affidavit of F and an exhibit thereto.

HIS HONOUR:   Wait a minute.  Has this already been filed?

MR COOMBS:   No, it has not.

HIS HONOUR:   Did I not give directions about this?

MR COOMBS:   This relates to a matter that your Honour has not given directions on.

HIS HONOUR:   I see.

MR COOMBS:   We are availing ourselves of the opportunity provided by Order 55.

HIS HONOUR:   Have your opponents seen this?

MR CAVANOUGH:   No, your Honour.

MR COOMBS:   We have some copies here which we ‑ ‑ ‑

HIS HONOUR:   You had better show it to them.  Have you got copies for the other side?  I will need to know whether they object.

MR COOMBS:   I do not think, given the terms of Order 55, they are able to object. 

HIS HONOUR:   So at the moment this is an ex parte application, is that right?

MR COOMBS:   Yes.

HIS HONOUR:   There is a draft order nisi, is there?

MR COOMBS:   Yes, you have that before you, your Honour.

HIS HONOUR:   An affidavit of F?

MR COOMBS:   Yes.  There is also ‑ ‑ ‑

HIS HONOUR:   And exhibits by the same gentleman.

MR COOMBS:   Yes.  Your Honour should also have before you the affidavits of Ian George Cunliffe and also the affidavit of ‑ ‑ ‑

HIS HONOUR:   Let us take it one thing at a time.  So the affidavit may be filed in Court.  Now, is there any other evidentiary material relied on for the order nisi?  That is the first thing to get straight.

MR COOMBS:   Yes, there is the affidavit of Ian George Cunliffe, which I understand the Court has.

HIS HONOUR:   Sworn?

MR COOMBS:   It would have been sworn yesterday, I think.  Yes, dated the 28th.

HIS HONOUR:   Yes, but not yet filed.

MR COOMBS:   They are filed along with the draft order.  It is an ex parte ‑ ‑ ‑

HIS HONOUR:   I am just trying to establish whether the affidavit of Mr Cunliffe, sworn yesterday, has yet been filed.  I have a copy of it.  It does not have any stamp on it.

MR COOMBS:   It has been sent by facsimile from Canberra.

HIS HONOUR:   Now, is this relied on only for the order nisi or relied on in relation to the other action?

MR COOMBS:   No, it is relied on in both matters.

HIS HONOUR:   In both.  Is there any objection to this?

MR CAVANOUGH:   Your Honour, I have not had a moment to read it.  I cannot say.

MR PEEK:   I am in a similar position, your Honour.

HIS HONOUR:   I will defer that tender at the moment.  Now, in addition to the affidavit of Mr Cunliffe, is there anything relied on in the order nisi?

MR COOMBS:   There is the affidavit of Alan Shnider.

HIS HONOUR:   Yes, again sworn 28 July?

MR COOMBS:   Yes, it is. 

HIS HONOUR:   That has not been filed yet either.

MR CAVANOUGH:   Nor seen.

HIS HONOUR:   Nor seen by the opponents, so that stands in the same position at the moment as Mr Cunliffe’s affidavit. 

MR COOMBS:   If I can assist your Honour, as for the Order 55 proceeding, it is launched, as it were, by the affidavit of Mr Shnider so that you may wish to start with that.

HIS HONOUR:   Yes.  Just pardon me a minute, Mr Coombs.  Now, you still have your summons on foot, do you not, Mr Cavanough?

MR CAVANOUGH:   Yes, there is a summons on foot to dismiss the writ proceeding for want of form and prematurity and lack of substance and other ‑ ‑ ‑

HIS HONOUR:   Yes, that was stood over.

MR CAVANOUGH:   It was issued in between the last hearing and this.  It was foreshadowed at the last hearing.

HIS HONOUR:   Yes.  Your summons is 22 July, is that right?

MR CAVANOUGH:   Yes.  Your Honour, there is a lot of material here I see coming from the other side which I have not read yet.  I have had a chance to read the relief sought which appears to be, again, as in the writ, relief directed to seeking to have Mr Gerkens removed as the member constituting the Tribunal and nothing further.  I think that is so.  Perhaps I might just check ‑ ‑ ‑

MR COOMBS:   Sorry, what was the question again?

MR CAVANOUGH:   Is the relief sought that Mr Gerkens, in effect, be removed as the member constituting the Tribunal?  Is that the totality of the relief sought, in effect?

HIS HONOUR:   And there seems to be a mandamus that some letters be ‑ ‑ ‑

MR CAVANOUGH:   It is by Mr Gerkens, on the basis that the fact that he did not do so showed that he was not properly dealing with the matter.  That seems to be the thrust of it.  But I just want to know whether that is all that the case is about.

HIS HONOUR:   Is that right, Mr Coombs?

MR COOMBS:   Your Honour, the Order 55 case relates to section 75(v) of the Constitution. What we are seeking is, in the original jurisdiction of this Court, prerogative relief.

HIS HONOUR:   Yes.

MR COOMBS:   As I have said before, the claim for the order arises from the affidavit of Mr Shnider which goes to the behaviour of the Tribunal.

HIS HONOUR:   Now, am I right in thinking your client has before the Refugee Review Tribunal constituted under Part 7 of the Migration Act a current, but unfinished, proceeding?

MR COOMBS:   That is the case.

HIS HONOUR:   And in relation to that, the Tribunal is constituted by the gentleman for whom Mr Peek appears this morning and you seek the removal, in effect, of that Tribunal member from the Tribunal and you seek, what, someone else to be, in effect, replaced?

MR COOMBS:   Yes.  What we say is that the proceeding that has taken place before that Tribunal member is so tainted by matters of bias that ‑ ‑ ‑

HIS HONOUR:   Just before you continue Mr Coombs, there is at the moment no decision of the Tribunal disposing of your client’s matter, is there?

MR COOMBS:   There is no final determination.

HIS HONOUR:   No.  It is all pending.

MR COOMBS:   Yes, but the situation is that, given what has transpired, my client - and I think advisedly - believes that he has little or any chance, given the aspects of bias which we claim, of getting anything like a fair hearing and that his only relief is to come to this Court.

HIS HONOUR:   In addition to that though you have this action here commenced by writ in which you seem to seek that relief that you have just been indicating in the Order 55 proceeding plus other relief involving declarations as to invalidity of certain provisions of the Migration Act.  Is that still on foot?

MR COOMBS:   Absolutely.

HIS HONOUR:   Yes all right.

MR COOMBS:   What we say about that is that there are really two focuses.  One is the focus of the Tribunal and its proceedings and the Tribunal has failed, we say, to act in a proper or judicial manner even though it is constituted so to do.

HIS HONOUR:   Yes I understand the merits.  I am just trying to get the jurisdiction straight at the moment.

MR COOMBS:   Right.

HIS HONOUR:   Now gentlemen, are you familiar with the Law and Justice Legislation Amendment Act 1997, Act No 34 of 1997, which took effect from 17 April 1997 amended 39B of the Judiciary Act by inserting a new section (1A)?  I have copies here in case it has escaped attention.

Now, I will adjourn shortly so that your opponents can have a chance to look a these affidavits which have appeared this morning but I would also like you to consider - and this is really the first question - why there should not be a remitter of both the prerogative proceeding, at the moment ex parte, and the action commenced by writ to the Federal Court and if such remitter was to take place, should it be to the Federal Court in Sydney or Melbourne?  There would seem to be an earlier proceedings in the Federal Court in Melbourne.  I am just not sure which would be the appropriate destination.

MR CAVANOUGH:   May I say something about that, your Honour?

HIS HONOUR:   Yes.  Now you are from the Melbourne Bar, are you not?

MR CAVANOUGH:   I am, yes.  I want to say about that - perhaps if I may say, it may even find itself regarded as prior to consideration of that matter.  The reason I asked the question was in order to just ascertain, and I think we have now that, in effect, the relief, that is the substantive relief, is confined to an order which would, in effect, remove Mr Gerkens as the person hearing the matter. 

The constitutional claim, that is the claim to have declared invalid some provisions of the Migration Act, is subsidiary to that.  The only reason for its claim was because those provisions were seen to be in the way of a remittal of the claim to the Federal Court to be dealt with there.  They have no independent life. The news that Mr Peek has would rather make the whole of this case academic now as I understand it.

HIS HONOUR:   I had better hear from Mr Peek.

MR PEEK:   Yes, your Honour.  Without it all admitting the substance of the claim that is being made and the matters in the affidavit today, I have been instructed, your Honour, that Mr Gerkens has, in fact, resigned from the Tribunal, that resignation to be effective on 17 August 1997.  He is currently on leave.  He is not available at the moment, within the terms of the relevant legislation, to continue with the matter and arrangements are currently being made in any event to reconstitute the Tribunal to continue hearing Mr F’s claim.

HIS HONOUR:   Yes, you had better take that on board, Mr Coombs.

MR PEEK:   I am not in a position to provide you with evidence of that, your Honour, but the evidence from the plaintiff has only arisen today.

HIS HONOUR:   No.  Well, if you say it up here it will be taken as true.

MR PEEK:   Indeed, your Honour.  That is certainly on my instructions.

HIS HONOUR:   It would be a drastic consequence if it was not, I should think?  This is with effect from 17 August.

MR PEEK:   That is correct, your Honour. 

HIS HONOUR:   Yes, I see.  Thank you.

MR CAVANOUGH:   I think my learned friend said he is on leave now and will not be returning in effect.

HIS HONOUR:   Yes.

MR PEEK:   That is also correct, your Honour.

HIS HONOUR:   Do you wish to take some instructions, Mr Coombs?

MR COOMBS:   That may well be a good idea.

HIS HONOUR:   Yes, all right.  Now is there anything else you wanted to say before I adjourn.

MR CAVANOUGH:   It just seems to me that that leaves only two issues for the Court today, namely the claim for the suppression order and the

question of costs because it would seem absolutely and utterly futile to continue to have any of these proceedings in respect of the claims made and that leaves just those two issues as I see it.

HIS HONOUR:   Yes.

MR COOMBS:   With respect, I do not think the statement of claim is set aside just by the passing of Mr Gerkens.  I mean the question still is whether or not, given the material that we have, whether the Tribunal would be able to get away with the same - - -

HIS HONOUR:   Look, Mr Coombs, your client has an adverse decision from the Minister, does he not?

MR COOMBS:   Yes.

HIS HONOUR:   You seek to get a favourable one.  The only place you can get a favourable one is the Tribunal.  Why keep grumbling about the Tribunal?  I do not understand it.  If you obtained a declaration of invalidity of those section you are left with an adverse decision of the Minister which is unreviewable through the RRT.  You can then come to this Court, I suppose, at the end of that long saga - and you get remitted to the Federal Court.  I think there has to be some grip of reality in all of this, other than delay.

MR COOMBS:   Certainly, delay is not our motivation, your Honour.

HIS HONOUR:   I am pleased to hear that.  How long do you need to take instructions?

MR COOMBS:   Ten minutes; 15 minutes.

HIS HONOUR:   Yes, all right.  I will adjourn until 10 am.

AT 9.49 AM SHORT ADJOURNMENT

UPON RESUMING AT 10.31 AM:

HIS HONOUR:   Yes, Mr Coombs.

MR COOMBS:   I am indebted to your Honour for the amendment to the Judiciary Act.  It is uncertain in its terms whether or not that would mean that the Federal Court would be unfettered by Part 8 of the Migration Act.

HIS HONOUR:   The first question you face, Mr Coombs - I have given this matter a considerable amount of time this morning - is do you withdraw your application for prerogative relief that was made ex parte?  Now, that does not carry any costs with it because it was made ex parte.

MR COOMBS:   Yes, I do.

HIS HONOUR:   All right, well that has got rid of.  The second question then is, what is the position to be taken as to remitter of the action commenced by writ which has two branches to it.  One branch is the claim for declarations of invalidity and the other branch or branches really duplicate what was to be involved in the prerogative separate ex parte application.

MR COOMBS:   Not exactly.

HIS HONOUR:   There is a summons on to strike that out.  The question is do I now, on that summons, strike out - because you no longer press them - those portions of that statement of claim which assert non-constitutional grounds, those non-constitutional grounds all being bound up with the involvement in your pending proceeding in the Tribunal of Mr Peek’s client, and he now having departed with effect from 17 August.

MR COOMBS:   I think we do persist with our claim that the Court should prohibit the Tribunal from proceeding while the impediment of Part 8 is there.

HIS HONOUR:   Very well.  The question then is do I remit the lot and, if not, why not?

MR COOMBS:   The difficulty is that while there is Part 8, how can the Federal Court do justice to this matter?

HIS HONOUR:   It is not a question of doing justice. The question is does it or does it not have jurisdiction already under section 44(1) in the light of 39B, as it has now been extended? Secondly, is not, in any event, section 44(2) attracted? They are the questions that have to be faced and I would be grateful for submissions on them.

MR COOMBS:   Your Honour, I cede that matter to Mr Gersten who is my junior in this matter.  He has prepared on that issue.

HIS HONOUR:   Very well.  Yes, Mr Gersten.

MR GERSTEN:   May it please the Court, your Honour.  That the Parliament has intended that this Court have the power to remit under the amendment that your Honour graciously provided us this morning cannot be in dispute.  What is in issue, your Honour, is are the facts of this case such that they fit into the parameters envisioned by Parliament in the April 1997 amendments.

HIS HONOUR:   I do not understand that, Mr Gersten.  I do not understand that.  Are you saying that there is jurisdiction to remit or are you saying there is not jurisdiction to remit?  If there is jurisdiction to remit, there arises discretionary considerations.

MR GERSTEN:   If this Court is minded to remit on the basis that the Commonwealth is being sued as a party, as might be envisioned in 75(iii), I would suggest that there would not be.

HIS HONOUR:   Why is that?

MR GERSTEN:   Because the Minister is acting in his statutory capacity as an officer and he is not acting as the Commonwealth. Then, and in that event, I would suggest that there was a purpose for the inclusion of 75(v) in the Constitution when, for a certain point in time during the constitutional conventions of 1897 and 1898 they had been deleted. I would call the Court’s attention to Quick and Garren - - -

HIS HONOUR:   Before we get to Quick and Garren, more to the point, because it binds me, in the Banking Case, which has been approved on numerous occasions, lastly in Crouch v The Commissioner for Railways, 159 CLR at pages 40 to 41 - and this is pretty.....doctrine, one asks oneself whether, in substance, the Commonwealth is being sued even though it is not the party named in the record, and the Minister is administering the Act under executive arrangements made by the Governor-General pursuant to section 64 of the Constitution in March 1996. It can hardly be said he is being sued in his personal capacity. He is being sued as the executive charged with the administration of this statute, being in charge of a department of State created under section 64 of the Constitution. Now, what is the answer to that?

MR GERSTEN:   There is no answer to that other than this Court is correct if this Court were to opine and would appear to be the case that the statutory duty is sufficient to invoke the Minister as a party acting on behalf of the Commonwealth. I can only suggest to you that the only recourse to that argument might be had by reference to Mr Isaac’s attempts to delete 75(v) from the Constitution only to, I suppose, be called to account by his brothers in the convention and who then did insert it.

HIS HONOUR:   There is 90 years of decisions on these questions.  Now, alternatively if you are right that this is purely statutory, why is it not within paragraph (c) of 39B(1A) - the new section I handed up?

MR GERSTEN:   I would need to have a look at that.

HIS HONOUR:   It would arise under a law made by the Parliament on the theory, I think, you were putting and, therefore, section 44(1) would apply.

MR GERSTEN:   Is the Court suggesting that 44(1) be read in pari materia with the ---

HIS HONOUR:   Well, 44(1) asks the question, “Does the Federal Court have jurisdiction in relation to this sort of matter?”  Answer, “Yes, because the 39B(1A)(c) ---

MR GERSTEN:   Yes, I take the Court’s point.

HIS HONOUR:   Whereas section 44(2A) assumes a situation where the Federal Court does not already have jurisdiction, nevertheless even if it does not, this Court can remit provided the Commonwealth or a party being sued on behalf of the Commonwealth is a party. Then section 44(3) says that where there is a remitter under subsection (2A), the remitted Court - the Federal Court - “has jurisdiction in the matter”. There is a conferral in that situation by subsection (3) of the jurisdiction. Subsection (1) assumes it is already there.

MR GERSTEN:   I see.

HIS HONOUR:   Now, that would cover the whole of - and then, insofar as your complaining of the invalidity, that would be a question under the Constitution under paragraph (b).

MR GERSTEN:   Essentially as I discerned the matter, your Honour, the amendment to 39B is a recapitulation of the additional jurisdiction conferred on the High Court. It appears now that that has now been conferred upon the Federal Court. That being so, I am wondering whether or not - and I ask myself the question - would the arguments that one might address to the High Court be addressed to the Federal Court with regard to its jurisdiction to review these matters and I am mulling this in my mind as I stand speaking to you at the moment. Section 44(1) would not have worked for your Honour’s remittal because prior to the amendments, the Federal Court could not have dealt with it. However, the amendment allows the Federal Court to deal with it which obviates an objection to 44(1), so I would have to concede your Honour’s point in this regard. I would believe that the amendment deletes any argument in counter disposition to your Honour’s proposition with regard to 44(1).

HIS HONOUR:   Jurisdiction then exists, but you say as a matter of discretion it should not be exercised, is that the position?

MR GERSTEN:   No.  If the Court would permit me to or would entertain my addressing that particular issue, yes, I very much would like then to.

HIS HONOUR:   Yes.

MR GERSTEN:   I guess the - to me, perhaps - glaringly obvious position is were we to litigate this matter of invalidity in the Federal Court it would certainly be injudicious use of the judiciary’s time and efforts were we to be successful at the Federal Court level.  There would be every reason to expect an appeal to the Full Court were the Commonwealth unsuccessful there, or either party unsuccessful there, we would be back in front of the High Court and I cannot really understand why it would be - earlier this Court was mindful of suggesting the concept of delay.  I would ask the Court to disabuse itself of that particular issue.  If the applicants’ desire for a fair hearing takes time, it is not the applicants that originated those problems.  That being the case, it would be clearly a great deal more time for a decision either way in the Federal Court or the Full Court to wind its way up to the High Court again than just dispose of it in the High Court originally.

HIS HONOUR:   It that were true as a general proposition, Mr Gersten, look at section 75(iii) of the Constitution.

MR GERSTEN:   I do not have to, I ---

HIS HONOUR:   We would be sitting here trying every action involving the Commonwealth so as to assist litigants to get to the Full Court of the High Court as soon as possible.  It does not work that way.

MR GERSTEN:   Your Honour, I suppose that I would ask you to focus on the large picture if I might for a moment.

HIS HONOUR:   Yes.

MR GERSTEN:   That is, that Part 8 would purport to preclude the Federal Court from reviewing a decision of the Tribunal were that Tribunal to make a decision failing to accord natural justice, acting so unreasonable that no reasonable person could make a decision,  taking into account irrelevant considerations;  failing to take into account relevant considerations under circumstances that a reasonable applicant might view as apprehended bias and, I think, - well, I am quite certain, bad faith.  Now, that is the fundamental core of judicial review of administrative decisions or quasi judicial decisions - certainly a decision of the RRT which I submit to the Court is obliged to act judicially.

If we allow the Federal Court to place its imprimatur upon a decision of the Tribunal that did not have regard to such fundamental issues of judicial review as those just described it , indeed, might make in the eyes of some a mockery of a decision rendered or a judgment rendered by the Federal Court of Australia, so be it true, with the Full Court.  So the issue of whether or not a court may review a decision of the Tribunal based on those grounds can only reside with this Court - so Parliament has divined.  That being the case, I think I can assure this Court with a reasonable degree of certainty, that that will be sought by the applicant below and Mr Coombs will address this Court specifically in the facts that are compelling that would suggest why that be so.

The broad picture is whether or not this Court is to be made the de facto or practical immigration court of the Commonwealth of Australia or whether or not the Federal Court shall have its hands untied and act unfettered and act judicially with regard to judicial review of decisions made by the RRT.

HIS HONOUR:   Yes.

MR GERSTEN:   I would imagine I have put the case for the the exercise of your discretion as succintly as I might, your Honour.  Thank you.

HIS HONOUR:   Is there anything you wish to add on other points Mr Coombs?

MR COOMBS:   I think your Honour should, when considering this matter, consider what is in the affidavit of Mr Alan Shnider, in particular I will read to you the paragraph 3 which quotes from a complaint made by a Tribunal member about certain practices within the Tribunal.  It says, “Around August 1994, Professor Certoma” ---

MR CAVANOUGH:   Your Honour, I hesitate to rise, but it should not be thought that the reading of this is on the basis that there is no objection.

HIS HONOUR:   How do I get into any of these factual issues, Mr Coombs?

MR COOMBS:   It is fourth hand hearsay.

HIS HONOUR:   At the moment, I would like to know why I should not strike out - certainly, Parts III and IV of your statement of claim before remitting the balance.  What is left, looking at the relief you seek which is a good starting position?  Page 11 of the ---

MR COOMBS:   You are dealing with the amended statement of claim?

HIS HONOUR:   Yes.

MR COOMBS:   Part I?

HIS HONOUR:   Filed 28 July, Parts III and IV.

MR COOMBS:   Parts III and IV?

HIS HONOUR:   Yes, page 11.

MR COOMBS:   Page 11.  Which ones are you proposing?

HIS HONOUR:   Parts III and IV, that summary on page 11, the relief.

MR COOMBS:   No objection.

HIS HONOUR:   You cannot - as I understand it, there is no point in any injunction; the gentleman has retired.

MR COOMBS:   No, we do not object to that being - the difficulty is that it is the Tribunal and not just the particular member that would be the subject of the injunction.

HIS HONOUR:   That is not what it says.  I have been very patient but my resources are not inexhaustible, Mr Coombs.  You do not want an order preventing the Tribunal deciding your application, surely to goodness.

MR COOMBS:   What we want is an injunction against the Tribunal hearing the matter until the question of the invalidity has been determined.

HIS HONOUR:   You press 11, do you - paragraph 11?

MR COOMBS:   Yes.

HIS HONOUR:   It seems the best course at the moment, to my mind, is to remit the lot and leave this for some judge in the Federal Court to wrestle with your procedural obscurities, Mr Coombs.  Are you still pressing Part II?

MR COOMBS:   If the matter is remitted, your Honour, the question then is whether or not Part 8 of the Immigration Act is to apply to the Federal Court in this matter.

HIS HONOUR:   Yes.  You say, “in this matter”.  You have not got a reviewable decision yet.  We went around this track last time when Mr Walker was appearing.  You have got a pending proceeding.  You cannot go to the Federal Court under the Migration Act yet, that is why you have come here.

MR COOMBS:   The court below, the Federal Court, would not be constrained, your Honour would say, by the provisions of Part 8 of the Migration Act as regards this question?

HIS HONOUR:   It is a question arising under the Constitution in which they have jurisdiction under 39(B).

MR COOMBS:   Could Mr Gersten address the Court again, your Honour?

HIS HONOUR:   I think you have had enough - you consult with him if you wish and then you can make further submissions but I am not giving you two bites of the cherry again, Mr Coombs.

MR COOMBS:   Your Honour, it is another matter.  It is the distinction between a merits review and a constitutional issue.  Mr Gersten has prepared something on that, your Honour.

HIS HONOUR:   You consult with him and tell me what you want to put.

MR COOMBS:   Your Honour, if this Court remits to the Federal Court, as I understand what your Honour is saying, the Federal Court would be considering the question of the declaration of invalidity.  Is that right?

HIS HONOUR:   I am not here to answer questions, Mr Coombs.

MR COOMBS:   That is my understanding of what your Honour has said.  The difficulty that we see is this:  we brought an affidavit to this Court that suggests that there is an aspect of impropriety in the operation of the Tribunal and that - - -

HIS HONOUR:   The Federal Court can sort that out.

MR COOMBS:   What we say is - - -

HIS HONOUR:   It is an issue of fact, that is right, a serious issue of fact not likely to be made and it is one, if you can make it out, you can make it out in the Federal Court.  It is idealy suited as a trial court.

MR COOMBS:   Indeed, except that they are, as far as those matters are concerned, still constrained by the existence of Part 8.

HIS HONOUR:   Why?

MR COOMBS:   Because so much of what is in the normal course of events - improper behaviour - - -

HIS HONOUR:   I do not understand.  Is that a legal submission, Mr Coombs?  You say, “constrained by Part 8”, constrained on a remitter from this Court?

MR COOMBS:   They are not restrained on a remitter from this - - -

HIS HONOUR:   Are you saying restrained psychologically in some way?

MR COOMBS:   No, by Part 8 of the Immigration Act in respect of those matters.

HIS HONOUR:   In respect of what application that is before them under Part 8?  There is no application before them under Part 8.  That is, I understand, why you have come here seeking, (a) prerogative relief; and (b) declaratory relief based on constitutional invalidity.

MR COOMBS:   But the problem is that we would be there seeking prerogative relief of an administrative law character which those sections of Part 8 preclude so that that matter might then have to come back here.

HIS HONOUR:   Yes, Mr Coombs.

MR COOMBS:   So what we say is those matters have to stay.

HIS HONOUR:   Yes.  Do you say anything else?

MR COOMBS:   No, your Honour.

HIS HONOUR:   Yes, Mr Cavanough.

MR CAVANOUGH:   Your Honour, it is submitted that the only proceeding left, the writ proceeding, should be dismissed summarily as sought in our summons because there is now no longer any foundation for it ‑ there is no relief sought any more against Mr Gerkens.  To the extent that my learned friends says, “I want to press paragraph 11 of the claim for relief”, he has no standing any more.  There is just nothing on which to base it.  The Federal Court would immediately say and we would ask your Honour to say, “One does not have a case in the air; one does not have a case about whether these provisions are invalid when you no longer seek any relief”, it is as simple as that.  So it would just be pointless to send it back.  Both Mr Gerkens and, indeed, his predecessor - he was acting principal member - Professor Certoma, are no longer there, as I understand it, so it is just completely pointless.

The other matter is, if your Honour were minded to remit, I would not want the Court to be doing it on the basis of any concession or any perceived concession on our part that section 485(3) would have no part to play in the event that somehow or other there were able to be revived some attack on Mr Gerkens, despite the fact that he is no longer there.  Section 485 says:

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.

Now, your Honour, it may be that that is what my learned friend had in mind when he was making the submissions he made most recently but it is the submission of the Minister that that section would, notwithstanding that there has not been a decision, affect the Federal Court’s powers in relation to so-called conduct leading to a judicially reviewable decision as was the way in which this case was put below.

HIS HONOUR:   There is no, yet, judicially reviewable decision.

MR CAVANOUGH:   No, I understand that, your Honour.

HIS HONOUR:   You accept that proposition?

MR CAVANOUGH:   There has not yet been a judicially-reviewable decision made.

HIS HONOUR:   What does section 485 have to do with the case?

MR CAVANOUGH:   It is just that in the Ozmanian Case, your Honour, in the Full Court - that was the decision which led to this matter being ceased in the Federal Court and coming here - it was held that conduct engaged in, at least prior to a decision, was similarly caught by this section.  In other words, one could not get around that limitation merely by fixing on that pre-decisional conduct.

HIS HONOUR:   That was a case in which there had been a decision.

MR CAVANOUGH:   Yes, your Honour.  It was certainly read by my learned friend’s previous representatives as affecting, very likely, the outcome, should the matter be pressed in respect of conduct preceding a decision and, indeed, his Honour Justice Sundberg proceeded on that basis as he was asked to by the applicants and that is the basis on which the matter was put to him and he granted leave to discontinue.  So, it cannot be said to have no basis, your Honour, in my respectful submission, and that is where the difficulty may be.

Your Honour, it would certainly be my client’s submission, if it had to be made in due course, that that would be the appropriate approach.  It would otherwise involve an undue, if you like, loophole or method of getting around what appears to be the Parliament’s intention that there shall be no grounds of this sort taken in respect of judicially-reviewable decisions or “a matter relating to a judicially-reviewable decision”, the conduct leading to the decision would fall within that category.  That is the submission the Minister would make.

HIS HONOUR:   Now, do you say Parts II and III of the statement of claim should be struck out on your summons in this Court?

MR CAVANOUGH:   My submission is that all four parts should be struck out.

HIS HONOUR:   Yes, you may be right about that but you at least say Parts II, III and IV should be struck out?

MR CAVANOUGH:   Yes, certainly.

HIS HONOUR:   On what grounds?

MR CAVANOUGH:   On the grounds, first - well, before this latest news it was premature anyway to bring this application because the matters your Honour put last time to Mr Walker, namely, the desirability of allowing the decision to be made and that then one would have a proper foundation for any proceeding.  Indeed, the decision may or may not be against Mr F.  Secondly, there was no proper compliance with the procedural requirements despite what happened on the last occasion.  One did not have an order nisi application, as Order 55 would require, until this morning.  But, more particularly, now that Mr Gerkens has gone, there is just nothing left in respect of which relief is sought. 

It would be most invidious to have any proceeding remain on foot, particularly in the light of section 420 of the Migration Act itself which provides that:

The Tribunal, in carrying out its functions under this Act, is to pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick.

Now, this matter was commenced in the Tribunal - - -

HIS HONOUR:   In 1995.

MR CAVANOUGH:   Well, earlier than that, I think:  1993 or 1994, perhaps.  I will just check the actual - I have a draft of the chronology here that might assist.  As a matter of discretion, it really has got to the stage where that statutory object is far from being advanced by what has happened.  Would it help if I were to hand up a draft chronology of what has happened in this matter?

HIS HONOUR:   Have you got one for Mr Coombs?

MR CAVANOUGH:   Yes.  It is not fully complete.  It has been done in a great hurry.  It looks as if the RRT application was lodged on 30 December 1993 and, so, here we are in July 1997 without a decision.  I should say this also, that the Federal Court proceeding included this farrago of complaints that now have resurfaced in Mr Cunliffe’s affidavit.  They were omitted, all but the business about the letter, in the original form of the statement of claim and now they resurface again this morning.  There was no indication at all on the last occasion that there would be any raising of additional factual matters and yet here they are raised at the eleventh hour. 

Your Honour, I also wish to hand up, if I may, a further brief affidavit of my instructor deposing to what has happened between the last occasion and today.  Can I hand up the original of that, your Honour.

HIS HONOUR:   The affidavit of Dale Jennifer Watson, sworn 28 July 1997, may be filed in Court.

MR CAVANOUGH:   I thank your Honour for that leave.  It exhibits the correspondence.  Your Honour will see that on 14 July my instructor wrote to the other side referring to the matter noting that I had spoken to Mr Perram who was previously involved, noting:

Mr Perram indicated a difficulty in obtaining instructions as to any further action by the plaintiff prior to the matter coming back before the Court -

and then saying:

As you should be aware, it was discussed at the last directions hearing whether my client, the Minister for Immigration and Multicultural Affairs, would take steps to apply to have this matter dismissed summarily.  We have taken the view thus far that we would forestall such action until such time as we had been served with any further documentation -

et cetera.  Your Honour can see the thrust of it.  We wrote again and we were told it would be here “within a day or two”, and nothing came and we wrote again and it arrived this morning.  Now, your Honour, when one looks at the chronology and looks at that material, one starts to - - -

MR COOMBS:   I object to this.  There is an inference being drawn from this that it is not - - -

HIS HONOUR:   Yes.  I think the correspondence speaks for itself.

MR CAVANOUGH:   So, your Honour, there is no foundation; it was premature anyway; the whole substratum has gone; it would be a terrible waste of judicial time to have an inquiry in that situation into these constitutional matters.  They do not arise anyway.  It is not as though my learned friend has ever or is seeking to challenge the decision of the delegate in any court.  He has an RRT proceeding on foot and it really ought to be allowed to go on and finish.  Indeed, that is what is happening at the moment.

Your Honour, there is no stay in place and your Honour would, I would respectfully submit, not be likely to grant an order restraining the RRT this morning or nor would any other court in the near future.  Hence, the ground is shifting as we speak.  There is all the more reason not to let this proceeding somehow interrupt the final processes which are - - -

HIS HONOUR:   What do you say about this mandamus requiring a response to letters of 4, 6, 11 and 16 August 1995?

MR CAVANOUGH:   That is dealt with in our first affidavit of Ms Watson of 22 July and what we say is that it is completely without foundation in that the essence of the response was, “I know nothing adverse to you.  You do not identify for me what you say I have against you that I don’t tell you about.  I don’t know what it is.  I’m telling you, you know everything that I know and you have had FOI access to my file”.  It is just completely baseless.

HIS HONOUR:   Is not this statement of claim bad in form anyway?

MR CAVANOUGH:   Yes.  Certainly, the amended one certainly is.

HIS HONOUR:   In so far as it seeks these prerogative relief other than through the medium of Order 55?

MR CAVANOUGH:   Yes, Order 55, and that is a point I raised on the last occasion and would raise again.

HIS HONOUR:   Could you explain it to me again?

MR CAVANOUGH:   Order 55 requires that one proceeds by order nisi with an affidavit, ex parte.  So, the respondent is not troubled unless and until an applicant is able to persuade the Court by affidavit that there is some merit in the complaint that is sought to be made.  That is the whole point of the Order 55 procedure.  One does not resort to a writ procedure

and then have lengthy delays and defences and so forth, and the respondent is being put to time, trouble and expense in an administrative law matter of this kind.  One only uses the writ procedure for a proper declaration-type proceeding where there is no need for any staying of any procedure, no need for the quashing of a particular decision but there is appropriately a claim for relief in the nature of declaration or perhaps an injunction in certain cases.

HIS HONOUR:   Why should I not strike out so much of the statement of claim and the writ as appears in Parts II, III and IV on that footing?

MR CAVANOUGH:   Yes, in my respectful submission, your Honour should.  Your Honour, there are no other matters that I would seek to advance.

HIS HONOUR:   Do you wish to add anything to that, Mr Peek?

MR PEEK:   No, thank you, your Honour.  They are all issues on which I have been instructed to submit.

HIS HONOUR:   I take it from what transpired this morning that there is no requirement to put you to evidentiary proof as to the position of your client, namely, that he has resigned from the RRT; secondly, that that is effective on 17 August; thirdly, that arrangements are or will be in train to further deal with this particular pending application before the Tribunal otherwise constituted.

MR PEEK:   Yes, your Honour, I understand that to be the position as well.

HIS HONOUR:   All right, thank you.  Yes, Mr Coombs.

MR COOMBS:   Your Honour, my friend seeks to make light of matters that arise and are incorporated in the affidavit of Mr Shnider and Mr Cunliffe and, indeed, my client.  Now, there is a matter of significance and importance here.  It is that that Tribunal had a policy of having material before Tribunal members which was never and, by instruction, not revealed to applicants before the Tribunal. 

The fact that Mr Gerkens and Professor Certoma have gone does not necessarily reassure anybody that that policy is not still in place and, indeed, the answers that were got from Mr Gerkens in his time with the Tribunal simply, at the end of the line, says, “There isn’t anything that I don’t think you know”.

HIS HONOUR:   I understand what you are putting, Mr Coombs, but in the light of the very long lapse of time in this matter, why is not your position one whereby a decision is obtained from the Tribunal, which you say would be flawed, and then an attack is made?  If you are right, the decision will be fundamentally flawed.

MR COOMBS:   I refer your Honour to Wu Shan Liang’s Case.

HIS HONOUR:   Yes.

MR COOMBS:   What we are saying - - -

HIS HONOUR:   I know you refer me to it.  What about it?

MR COOMBS:   It says at page 272, about point 3:

In the present context, any court reviewing a decision upon refugee status must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision.

The difficulty that we have is that - - -

HIS HONOUR:   You are not responding to the question, if I may say so, Mr Coombs.  Why is not your client’s position protected adequately by obtaining a decision in the ordinary way?  You may be contented with the decision.  If you are discontented with the decision and you are right about its fundamental flaws, well then, you attack it.  What is the point, other than delay, by the intervention of these Court proceedings?  If there is an explanation I would like to hear it but I have not heard it yet.  October 1993 is a long time ago.  I accept there may be some delay on the other side ‑ ‑ ‑

MR COOMBS:   If my client’s seeking a fair and proper hearing takes that long, that is not his fault.  It has got to take that long.

HIS HONOUR:   He is seeking a decision that is favourable to him.

MR COOMBS:   But he is seeking a decision that is made fairly and properly.  If your Honour reads the affidavit of Alan Shnider, what it shows is, one, there is this policy ‑ ‑ ‑

HIS HONOUR:   I understand all that you say about the merits, Mr Coombs.  I am trying to concentrate you, and I am not succeeding.

MR COOMBS:   See, what we are saying is that the decisions they are making are flawed because of the procedures they have adopted.

HIS HONOUR:   But that is a generalised statement.  The question is there is no decision in your case yet.

MR COOMBS:   There is no decision now ‑ ‑ ‑

HIS HONOUR:   So it cannot be tested one way or the other.  You say there is apprehended bias.

MR COOMBS:   Yes, and it is, as it were, built into the way in which the Tribunal presently operates, as far as we can tell.  If the Tribunal as evidenced by Mr Shnider’s affidavit feels free to remove material from a report of proceedings because it referred to this matter of the suppressed material, what are we to make of that Tribunal?  You apprehend the bias because you are in front of that Tribunal and because it does that thing.  So that Mr F has every reason to apprehend bias and unfair procedure, given that that is what has occurred.

HIS HONOUR:   What is the answer to the submission that is made against you that Parts II, III and IV of your amended statement of claim are procedurally defective?

MR COOMBS:   We would simply seek to amend in Part III “First Defendant” be changed to the “Refugee Review Tribunal”.

HIS HONOUR:   That still would not fit the case, would it?  You seek prerogative relief against officers of the Commonwealth, you do not seek prerogative relief against a corporate body, if it is a corporate body.

MR COOMBS:   See, what we say is that my client was entitled to a fair hearing and, as matters stand, the process and procedures of the Refugee Review Tribunal are flawed and flawed in a way that Part 8 prevents review of.

HIS HONOUR:   That is your constitutional point.

MR COOMBS:   Yes.

HIS HONOUR:   All right, I understand that.  But why should that not be remitted to the Federal Court?

MR COOMBS:   Because of the problem that my friend adverted to, 485(3) of the Migration Act, because this involves conduct.

HIS HONOUR: It involves the Constitution. We have put it to you in plain terms. What do you have to say to a result whereby Parts II, III and IV of your amended statement of claim were struck out and the balance of it was remitted to the Federal Court, including so much of the summons to strike out as is sought to strike out of Part I?

MR COOMBS:   My understanding is - and perhaps your Honour could correct me if I am wrong - that the Federal Court would then be hearing the matter virtually with the powers of the High Court as to the disposition of the matter.

HIS HONOUR:   It would be hearing what was remitted to it.

MR COOMBS:   With the appropriate powers, not fettered by the Migration Act in so far as it might apply.

HIS HONOUR:   I cannot see how it would apply, that is the point.

MR COOMBS:   Could I simply confirm that you are saying that section 485(3) simply does not apply?

HIS HONOUR:   I will ask Mr Cavanough what he would say about that.

MR CAVANOUGH:   Your Honour, I have a real difficult about that.  I think the Solicitor‑General would want to be heard if your Honour were to make a formal decision to that effect.  In fact I have spoken to the Solicitor‑General and I know that that is so.  Now, if your Honour were merely to remit the matter and leave it to the judge of the Federal Court to determine the matter, of course that would be a matter for your Honour and whilst we would urge that the whole matter be dismissed preferably, if your Honour were minded to remit it despite the absence of the foundation, so be it.  But, your Honour, we would ask your Honour not to publish any considered decision to the effect that would bind the Federal Court on remittal as to the implications of 485(3).

HIS HONOUR:   There are many things requiring attention in this Court.  I will indicate what I propose to do, as follows:

1.  To strike out for the failure to comply with Order 55 Parts II, III and IV of the further amended statement of claim which was filed on 28 July 1997;

2. To remit to the Federal Court the balance of the further amended statement of claim, including the summons filed on 22 July 1997, the jurisdiction of the Federal Court in that respect being founded upon section 39B(1A)(b), thereby attracting section 44(1).

And on that footing, as I see it, section 485 has nothing to do with the matter.  There would be questions bound up in the summons as to standing but that would be a matter for the Federal Court dealing with the summons.

3.  I would certify for counsel in this Court on 16 June and today’s date. 

4.  Costs of the proceedings in this Court would be costs in the Federal Court. 

The costs in this Court would not include the ex parte application made this morning and then withdrawn.

5.  I will continue now up to and including 4.30 pm on 22 August 1997 order 4 appearing on page 21 of the transcipt of 16 June.

That deals with your name position.

6.  I would stand the matter over ‑ ‑ ‑

MR COOMBS:   Your Honour, before you complete ‑ ‑ ‑

HIS HONOUR:   I am not making any other orders at the moment.

MR COOMBS:   Just that as to the location of the matter, we would prefer it be in Sydney.

HIS HONOUR:   Yes, I will come back to that.

6.  I would stand the matter over before me in Sydney on Tuesday, 19 August at 9.30 am for any submissions as to why those orders should not then be made.

The remitter to the Federal Court I have indicated would be to the Federal Court in Sydney, unless I am persuaded to the contrary on the 19th.

MR CAVANOUGH:   If your Honour pleases.

HIS HONOUR:   Is there anything else, gentlemen?

MR COOMBS:   No.

MR CAVANOUGH:   No.

HIS HONOUR:   I will adjourn as indicated to Tuesay, 19 August 1997, at 9.30 am.

AT 11.28 AM THE MATTER WAS ADJOURNED
UNTIL TUESDAY, 19 AUGUST 1997