Falamaki v Wollongong City Council

[2002] HCATrans 240

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P40 of 2002

B e t w e e n -

DHAN GURUNG

Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

Application for an injunction

CALLINAN J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

FROM PERTH BY VIDEO LINK TO BRISBANE

ON TUESDAY, 7 MAY 2002, AT 11.36 AM

(Continued from 26/4/02)

Copyright in the High Court of Australia

MR V.G. DE ALWIS:   May it please your Honour’s Court, I appear for the applicant.  (instructed by Migrant Lawyers)

MR P.R. MacLIVER:   If it please the Court, I appear for the respondent.  (instructed by the Australian Government Solicitor)

CALLINAN J:   Mr de Alwis, what precisely is the material that you rely on?  Do you have an affidavit?

MR DE ALWIS:   I rely on the affidavit which was filed earlier.

CALLINAN J:   Which affidavit is that?

MR DE ALWIS:   There is no new affidavit but I rely on the facts as stated in Mr Peter Corbould’s affidavit, your Honour.

CALLINAN J:   All right, thank you.  You rely upon Mr Corbould’s affidavit, an undated notice of motion which is an application for special leave, a summons seeking an injunction, your affidavit of 26 April 2002 and an affidavit that you swore in October 2000, is that right?

MR DE ALWIS:   Yes, that is correct, your Honour.

CALLINAN J:   All right.  I just want to ask Mr MacLiver a question.  Mr MacLiver, would you come to the rostrum, please.  Mr MacLiver, do you have any objections as to the form or any of the material filed on behalf of the applicant?

MR MacLIVER:   Your Honour, I could take objection to it.  I only, though, would take objection on the ground of relevance.

CALLINAN J:   All right, I will reserve that question, Mr MacLiver, and perhaps we will proceed upon the basis it is in until I rule upon it.

MR MacLIVER:    Thank you, your Honour.

CALLINAN J:   It is provisionally in anyway.  Thank you, Mr MacLiver.

MR MacLIVER:   Thank you.

CALLINAN J:   All right, Mr de Alwis, I have received your summary of argument, I have read it.  What submissions do you want to make in addition to that.

MR DE ALWIS:   Thank you.  In addition, there is not much, but what I have to say is that my client must be given further time to prepare a fuller case and make all the submissions fully and completely to your Honour and for that purpose - and also for the purpose of my client having to give me instructions to protect his rights, an injunction may be granted.  Your Honour has a discretionary power.  I also emphasise the fact that by granting such an injunction no prejudice whatsoever would be caused to the respondent at all and grave prejudice, irreparable, irremediable damage would be done to my client by deporting him and also the rights of the child convention against torture, cruelty and the other international covenant of civil and political rights ‑ international covenant…..cultural rights, also they be ignored if he is deported because they have not been taken into account up to now and I would say that he is entitled to make an application for a spousal visa.  As I submitted earlier, your Honour, the marriage is not yet ended and it cannot be said that it is irretrievably broken down either.  The very spirit of the family law in Australia is to protect the family and to encourage reconciliation and to see that the family unit survives.

In addition to the child’s right ‑ child is Australian citizen because the mother is Australian citizen and he was born here, and the mother is an Australian citizen and the sister is a permanent resident so they will all be aggrieved if my client is deported or removed.

All I have to prove as I have mentioned there, your Honour, is that there is a prima facie case, an arguable case. If I succeed in persuading your Honour’s Court that the power your Honour’s Court and the Federal Court have to grant an extension of time was withdrawn by these provisions, and my argument that it is, in fact, an infringement of the suppression of powers as well as a contravention of section 51 of the Constitution which states that:

The Parliament shall . . .  make laws for the peace, order and good government –

and it is my submission that his Honour Justice French misdirected himself in saying that there is nothing wrong in passing the Migration Act provisions in this manner which may be in conflict with the Racial Discrimination Act and the equal opportunity laws as well as the human rights legislation in Australia which are all Commonwealth laws.  I have, in fact, worded it a little too hard I believe, I am sorry about that.  I meant to water it down but I did not have time for that today.  My position is that it will not be good sense or it will not very logical to say that the Commonwealth can pass one legislation, for example in this case, the Racial Discrimination Act and then pass legislation that discriminates against one section of the population which is migrants and…..and suffice to say that those are the basic arguments I have raised but I have to do a lot of research to prepare the case, particularly because this is the High Court. The High Court must be given all the necessary material I can ‑ ‑ ‑

CALLINAN J:   Mr de Alwis, it is very unusual ‑ there may be one or two examples, I cannot remember them, but it is very unusual for this Court to grant special leave on an application in respect of a judgment by a single justice, that is to say, to grant special leave when the applicant has not sought to appeal and had his case dealt with by an intermediate Court of Appeal, in other words, in this instance, by the Full Federal Court.

MR DE ALWIS:   With great respect, your Honour, I was asked to choose between a single judge appellate jurisdiction or the Full Court appellate jurisdiction and at that time I elected ‑ in fact, I believe they said that Justice Carr may sit in the appellate jurisdiction so his Honour Justice Carr reviewed it, or at least went into the question as to whether his Honour can grant leave to appeal from Justice French’s decision.

CALLINAN J:   All right, yes.

MR DE ALWIS:   So therefore that barrier has been crossed and therefore your Honours would have all the jurisdiction to issue this grant of special leave case.

CALLINAN J:   The Court has jurisdiction anyway, but it is very rare, in fact, in the ordinary case that it will exercise it in respect of a single judge’s decision, but you have made a response to that, yes.  What else do you have Mr de Alwis, what other submissions do you want to make?

MR DE ALWIS:   Your Honour, also briefly that there are very important issues, particularly matters about treaty and the international obligations which are under section 75 of the Constitution, I think. May I read the particular part of the Constitution, your Honour?

CALLINAN J:   Yes.

MR DE ALWIS:   May I draw your Honour’s attention to section 75 of the Constitution?

CALLINAN J:   Yes.

MR DE ALWIS: Section 75(i) is:

In all matters:

(i) arising under any treaty –

and I have brought issues on five treaties, Rights of the Child Convention, covenants Against Torture and Cruelty and International Covenant on Civil and Political Rights, International Covenant on Economic and Cultural Rights and also last, but certainly not the least at all, the Universal Declaration of Human Rights and it is very clear that the way these laws have been amended may be in breach of particularly Article 8, your Honour.  It says that:

Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law. 

So that covers the whole gamut of the issues in this case.

Also, Article 5, it says:

No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. 

Up to now nobody has come before your Honour’s Court and said that to separate the father from the son or the wife from husband or the husband from the wife, at least in this case, would be a poor thing to do.  It will be my submission later on, if this allowed, if the special leave is granted, your Honour, to persuade your Honour’s Court and certainly convince your Honour’s Court that to get any further thing to separate the father from the son and even the two spouses from each other.  Given the fact that Nepal is a very small, very poor developing Third World country, if this man goes there, it is doubtful that he will be able to even afford to see the child even once in his lifetime and also he has to pay child maintenance, child support for this child until he is 18 years old.  He is only 1½ years now.

I am sorry, your Honour, I fell that I am talking slowly. I have very bad throat, I apologise for that.  I will be certainly saying that it would be a gross violation of the Universal Declaration of Human Rights as…..which is the International Covenants on Human Rights and…..Protocol.  I need ed to fax all these copies but I was too ill, your Honour, I could not do it.  I tried to get a counsel to do this today but there was no counsel who was willing to do it.  I waste my time….my fee.  I hope to get legal aid for him and I have an indication that he will get legal aid because of the importance of the issues in this matter and also due to the fact that he will be deported if he loses this case and therefore he may be entitled to legal aid.  If not from NSW, New South Wales Legal Aid Commission or the WA Legal Aid Commission,…..all that from the Family and Legal Aid Service in Canberra, I have approached them too and even though access in WA might consider.  So I believe he will be able to raise some funds if a little time is given and it is very important because I have raised these very important issues.  I have done public and private international law and human rights for the last 30 years, your Honour.  I was a…..in my country and that is where I started and I did private international law at Monash University, postgraduate studies.

If I am given a little time, I might take another about two or three weeks at least to recover and also for the doctors to find out why I collapsed suddenly and I collapsed twice now and I was found unconscious at a bus stop and I was taken to the hospital a few weeks ago and again the same thing happened in….but the doctors are not able to find out why it is or I will be able to wear a monitor now so that the doctors have a better picture before them.  The doctors say it is not a very, very serious thing, I should be able to work, but I must avoid stress and unfortunately I get…..attacks of angina so I can do the best for this client if I am given a little time.  It would be impossible for me ‑ ‑ ‑

CALLINAN J:   But , Mr de Alwis, I did give you time.

MR DE ALWIS:   Sorry.

CALLINAN J:   I did give you time.  I have given you more than a week.

MR DE ALWIS:   That is right, your Honour, in fact, I was very ill even during that time.  For four days I was bedridden after that, your Honour, I could not even move on the bed because, I mean, I have to endure a lot of pain, excruciating pain every day.  I am more worried about my heart condition and I have already undergone angioplasty in 1996 and about five angiograms already, the last one in November last, and I also have a stint in my heart which is getting filled up unfortunately because my body cannot synthesise cholesterol.  I get it from my mother ‑ ‑ ‑

CALLINAN J:   Mr de Alwis, it is all very well your coming here and telling me that you hope or expect that your client will receive legal aid, but where is the evidence of that before me?  Where is an intimation from any legal aid authority that your client might get legal aid?  These things should not be stated just from the Bar table, they are matters of evidence.  Have you written to any of these legal aid authorities, or have you only spoken to them?

MR DE ALWIS:   I have telephoned, your Honour.

CALLINAN J:   Where is the evidence of that, Mr de Alwis?  You cannot just come to the Bar table ‑ ‑ ‑

MR DE ALWIS:   I can give you solicitor’s undertaking and ‑ ‑ ‑

CALLINAN J:   No, it is not good enough, Mr de Alwis.  Factual matters need to be proved by affidavit and one reason for that is that the maker of the affidavit can then be liable to be cross-examined.  It is just not good enough to say things from the Bar table.

MR DE ALWIS:   I understand that, your Honour, but it was completely beyond my control and even now ‑ ‑ ‑

CALLINAN J:   No it is not.

MR DE ALWIS:   But yes, for fuller argument, such a time has to be given so, therefore, my client may be allowed to stay here and give me instructions or another counsel……he can afford and that is what I propose to do and, unfortunately, Legal Aid will not even consider until I get special leave from your Honour’s Court for it in order to ‑ ‑ ‑

CALLINAN J:   There you are, you see, you have just contradicted yourself.  Legal Aid will not consider the matter until you get special leave.

MR DE ALWIS:   It is not - special leave to appeal.  Yet, if I get special leave to appeal ‑ ‑ ‑

CALLINAN J:   Do you know how many applications for special leave succeed?  It is a very small percentage.

MR DE ALWIS:   Yes, your Honour, but I am quite confident that I can persuade your Honours if given the opportunity.  There is much more research that has got to be done and I could not do it.  In fact, I tried to get my law clerk to do it.  She does not understand very much.  She is only a law student.  So I have been handicapped, and the fact is that this man must be here in Australia to give his instructions to me or to anybody.  So, therefore, what I am asking is an injunction preventing him from being deported ‑ ‑ ‑

CALLINAN J:   But your client stayed on in Australia four years after his visa expired.  He made no attempt to contact the authorities.  He did absolutely nothing.  He was here as an illegal person for four years.

MR DE ALWIS:   According to him, the story is a little different, your Honour.  He says that he told the Immigration Department that he got married too and that he has a child as well, even ‑ ‑ ‑

CALLINAN J:   Yes, but that has nothing to do with the question whether he was here illegally or not.  The fact is that his visa expired and he stayed on for four years.  It was only when he was detained that he made applications to the Court.

MR DE ALWIS:   Your Honour, once – this is just my experience as answer – I appeared for a man from England who had overstayed by some 14 years and he got married and he was illegal ‑ he came only for 3 months ‑ and he got married much later, but he did start a de facto relationship and then he was allowed to be for a bridging visa and also make an application for a spousal visa later on.  He was released by the IRT and he made the application for a spousal visa later on.  That was a man who overstayed 14 years.  I know there was another man who had overstayed nine years.  So if there is spousal visa possible, then that may be considered and also ‑ ‑ ‑

CALLINAN J:   But your client has not made an application for a spousal visa; even assuming he can, which I think is doubtful, he has not made an application for one.

MR DE ALWIS:   I know that, your Honour.  In fact, some of these people are very ‑ ‑ ‑

CALLINAN J:   Yes, but they must comply with the law like anybody else, Mr de Alwis.  You are a lawyer, you know that.

MR DE ALWIS:   Yes, ignorance of the law is no defence at all, I have told him that too and ‑ ‑ ‑

CALLINAN J:   For four years he was living in this country when he had no visa and no right to be here.

MR DE ALWIS:   But his child is there so, therefore, there are exceptional circumstances and also the fact that the rights of the child upon which all these other conventions must be taken into account, they have not been even taken into account at all and normally all these detainees, the moment they are taken to the detention centre are given an advice sheet which sets out the kinds of visas that they can apply.  In fact, one of them is a spousal visa.

CALLINAN J:   All right, what section can he apply for a spousal visa under, what section  of the Act, Mr de Alwis?

MR DE ALWIS:   Class 100 is in the regulations, your Honour, entitles him to apply for a spousal visa within the country as well.  In fact, there are two different visas.  If he applies from another country ‑ ‑ ‑

CALLINAN J:   Now, which regulation is that, Mr de Alwis?

MR DE ALWIS:   Spouse is subclass 100 and 100.1 says “Interpretation” “Primary criteria” are given in 100.2, and 100.21 says “[No criteria to be satisfied at time of application]” and 100.22 “Criteria to be satisfied at time of decision”.  There is a matter that, in fact, must be taken into account, that is the fact that he is ‑ ‑ ‑

CALLINAN J:   No, but what does the regulation say about spousal visas?  You say it is at class 100, is it 100.1 or 100.2?

MR DE ALWIS:   Subclass 100.

CALLINAN J:   Subclass 100.  What is the regulation, Mr de Alwis?

MR DE ALWIS:   I cannot find the – classes of B class which are in Schedule 1 of the Regulations and then subclass 100.  Class is given in Schedule 1, Part 1 is “Permanent visas”.  Then you have subclass, which is subclass 100, the spouse visa and:

In this Part:

sponsoring spouse, in relation to an applicant, means the person who was specified as the applicant’s spouse or intended spouse –

intended spouse would be ‑ ‑ ‑

CALLINAN J:   All right, Mr de Alwis, your client has never made an application for one of those visas. 

MR DE ALWIS:   My position is, your Honour, it is never too late, even now.

CALLINAN J:   Why he has not made it in the last week, if it is not too late?  Why did he not make it when these proceedings were started in the Federal Court?

MR DE ALWIS:   In fact, I have got one prepared, your Honour ‑ ‑ ‑

CALLINAN J:   No, it is not an answer to my question, Mr de Alwis.  Why has he not made one?  He has had years to make one.  When was he married?

MR DE ALWIS:   It was of the fact that he was in detention.

CALLINAN J:   When was he married?

MR DE ALWIS:   In 19 ‑ ‑ ‑

CALLINAN J:   He could have made one then, whenever it was.

MR DE ALWIS:   In 19 – I think in 1996, your Honour.

CALLINAN J:   All right, it does not matter, it is a long time ago and he has made plenty of time to make an application for a spousal visa if he can make it.

MR DE ALWIS:   Certainly, your Honour.

CALLINAN J:   Is there anything you want to add, Mr de Alwis, to your submissions?

MR DE ALWIS:   Yes, also that if I succeed in persuading your Honour’s Court that the Court has powers to grant an extension, in fact the law that we apply is the law at that time and, therefore, the…..clause provisions will not apply to him…..and if that be so, then the High Court has powers, in fact, under section 35, like did happen earlier and then he can ask for an extension of time before the Federal Court and ask the Federal Court to grant an extension so that this question of whether the IRT should have granted that one day’s time to lodge his application should be allowed.  Also, if I succeed in persuading your Honour’s Court that this…..are bad in law, then even the IRT will be able to grant him that one day’s extension easily.

Further, his position is that he actually posted the application on the 25th and therefore they had in fact received it on the 26th but, unfortunately, it was in the office and it went to the particular officer who was handling it only later on.  He takes the position that he posted it by express mail and there was a guarantee given by Australia Post that it will be delivered the following morning because it was within the metropolitan area of Sydney.  In fact he sent it from one suburb of Sydney to another suburb of Sydney and, therefore, he was in fact within time, he says, and therefore the IRT’s decision was erroneous and I believe it is subject to the Federal Court in that case that the IRT should have heard the case.

If that be so, then he gets a student visa again and if he gets the student visa, he becomes lawful non-citizen.  If he becomes a lawful non‑citizen, then he can apply for permanent residency here.  In fact, he can ask an exemption.  As I have stated in my submissions, he can ask for an exemption on two grounds, that there was domestic violence.  I would be.….your Honour’s Court that abducting the child from one State to another was a grave domestic violence matter and also because there is a child too.  In fact, that has been the policy of the Minister for a long time, if there is a child, then if the spouse does not sign the sponsorship, then he is exempted from giving that sponsorship.  In fact, during my day – I was doing migration agent’s work from 1985 to 1992 – and we have always succeeded in those.  There are so many reported cases in the IRT as well as….the Federal Court to the respondent to and normally it is not taken any further than the IRT.  If the IRT agrees, then usually the Department allows that and takes action and the application is entertained.  It is my experience that the urgency according to statistics, 100 of those applications have been successful, particularly because of the child and then because of the spousal visa where he gets married to an Australian citizen.  As your Honour kindly pointed in ‑ ‑ ‑

CALLINAN J:   Mr de Alwis, I have the regulations now and I am looking at Schedule 2 which is at page 87 of the copy of the regulations that I have and on my first reading of it, it looks to me as if a spouse visa can only be applied for and granted outside Australia.  Is that right, is there any provision for a spouse visa to be granted after entry into Australia?

MR DE ALWIS:   Yes, your Honour, on-shore or off-shore.

CALLINAN J:   Whereabouts is that?

MR DE ALWIS:   The regulations are at page 356 of the Migration Regulations, this copy, 1994.

CALLINAN J:   What regulation number is that, Mr de Alwis?

MR DE ALWIS:   Schedule 2, subclass 100, that is at page 356, your Honour.

CALLINAN J:   I have a different copy.  Is there a regulation 100.211?

MR DE ALWIS:   According to this, it is 100.221, your Honour, “Criteria”.

CALLINAN J:   It is 100.221, yes.  That is a travel‑only visa, is it not?  Is that a travel‑only visa?

MR DE ALWIS:   No, your Honour, it is part of subclass 100 and ‑ ‑ ‑

CALLINAN J:   What does 100.221 say?

MR DE ALWIS:   It says:

Criteria to be satisfied at time of decision

100.221       (1) The applicant meets the requirement of subclause (2), (3), (4) or (4A).

(2)      The applicant meets the requirements of this subclause if:

(a) the applicant:
(i) is the holder of a Subclass 309 (Spouse Provisional)) visa; or –

that is the….visa –

. . . 
(b) the applicant is the spouse of the sponsoring spouse; and

(c) subject to subclauses (5), (6) and (7), at least 2 years have passed since the application was made.

(3)      The applicant meets the requirements of this subclause if the applicant:

(a) first entered Australia as the holder of a Subclass 309 (Spouse (Provisional)) visa and either:
(i) continues to be the holder of that visa . . . 

(b) would meet the requirement of subclause (2) except that, after the applicant first entered Australia as the holder of the visa mentioned in paragraph (a), the sponsoring spouse has died; and

(c) satisfies the Minister that the applicant would have continued to be the spouse of the sponsoring spouse if the sponsoring spouse had not died.

(4)      The applicant meets the requirements of this subclause if:

(a) the applicant first entered Australia as the holder of a Subclass 309 (Spouse (Provisional)) visa ‑

I believe that is when they have intended spouse visa, but it is this case, where he can go, they go.  Further down:

(c) after the applicant first entered Australia as the holder of the visa mentioned in paragraph (a) – either or both of the following circumstances applies:

(i) either or both of the following:

(A) the applicant;
(B) a member of the family unit of the sponsoring spouse or of the applicant or of both of them;

has suffered domestic violence committed by the sponsoring spouse ‑

that is why I refer to that.  Then:

(ii) the applicant:

(A) has custody or joint custody of, or access to; or
(B) has a residence order or contact order made under the Family Law Act 1975 relating to;
at least 1 child in respect of whom the sponsoring spouse:
(C) has been granted joint custody or access by a court; or
(D) has a residence or contact order made under the Family Law Act 1975; or
(E) has an obligation under a child maintenance order made under the Family Law Act 1975, or any other formal maintenance obligation.

Now, my client satisfies, I believe, all those requirement, your Honour.  That is why I said abducting ‑ in fact, has not been taken in a court decision but it would be my submission that abducting a child amounts to domestic violence committed by the sponsoring spouse.  The sponsoring spouse would be the wife who is the Australian citizen and there are also very…..In fact, I have contacted the wife.  She wants to give joint custody, but now ‑ ‑ ‑

CALLINAN J:   Mr de Alwis, do not tell me matters from the Bar table that should be in evidence please.  You cannot come along and make statements about factual matters without proving them.  You have had plenty of time to obtain an affidavit from your client and, indeed, from his wife to put these matters in proper form.  Do you understand about affidavits and proving facts instead of getting up at the Bar table and making statement?  I really do take exception to that.

MR DE ALWIS:   Sorry, I apologise, your Honour.  I thought it would be a relevant fact.  The wife is rather ‑ ‑ ‑

CALLINAN J:   No, it may be a relevant fact.  If it is a fact, it should be proved, not stated by you at the Bar table.  Do you not understand what I am saying to you?

MR DE ALWIS:   Yes, I must take fair amount of responsibility, but I was not aware, your Honour ‑ ‑ ‑

CALLINAN J:   No, it is not a question of taking a fair amount of responsibility, it is a question of complying with the rules and putting matters before the Court in a proper way.  You tell me you are a very experienced solicitor.  You should know better than to do that.

MR DE ALWIS:   I am sorry, I apologise, but I was trying to send a point to your Honour that if he is granted an injunction, then he will have time to prepare order, and give me instructions and I have to, in fact, call him on a mobile phone which is supplied by them.  Communication is extremely difficult thing and this ‑ ‑ ‑

CALLINAN J:   You could have made the affidavit yourself and put these facts on information and belief instead of telling me from the Bar table.

MR DE ALWIS:   I have.

CALLINAN J:   No, you have not told me anything about his spouse sponsoring him or anything of that kind and whether she will or whether she will not.  In any event, continue with your submissions.

MR DE ALWIS:   Yes.  Now because of the situation, in fact, there is presumed custody and joint custody and he has access easily to go ‑ because he is in detention only that he cannot have access, and that is why I have asked for a bridging visa to be issued so that he can visit ‑ he can move to Melbourne and visit his child and have access, exercise his rights under the Family Law of Australia.

In fact, I also, submit, your Honour, as I have said in my affidavit, he would be entitled to joint custody orders and also any child support orders or even, I would say, spousal maintenance orders by the court – by the Family Court in favour of him.  They are a married couple.  They are ‑ de factos.  So therefore he has better rights and until he gets a job and he establishes himself here, he may be entitled to even spousal maintenance and as your Honour is aware, the test of time is only two years, so he has passed the test for having a genuine and…..marriage of two years.  Even now the marriage is not dissolved.  Therefore the marriage must be presumed to be existing and the respondent’s delegate has not taken that into account,  He has…..as if the marriage is at an end and it has irretrievably broken down, and that would be wrong conclusion by the primary decision‑maker and, therefore, too I would be entitled to address the Federal Court on that aspect as well.

So, therefore, I submit, your Honour, that his Honour Justice Carr would have granted leave to appeal to that court from the refusal by Justice French to grant an injunction and that your Honour has the power now to grant that injunction because he has exhausted the appeal rights in the Federal Court and also due to the fact that there are matters arising under a treaty.  There are four treaties that I already mentioned.

HIS HONOUR:   Well, you have told me that.  Is there anything further, without repeating yourself?

MR DE ALWIS:   Yes, your Honour.  …..to make sure that I have.  I have already mentioned in my submission that all of – his Honour Justice French and his Honour Justice Carr misdirected themselves on the burden of proof and if it is only the – on, your Honour, balance of convenience that I have to prove, I have, in fact, done that.  I have discharged my duty and I have placed sufficient evidence before both – for the Court to be able to grant that injunction.

HIS HONOUR:   All right.  Thank you, Mr De Alwis.

MR DE ALWIS:   And also, just a last point:  the fact that Justice French has accepted the application and it is on foot, it is for a hearing – a directions hearing next and now if he is deported, he will not be able to give me specific instructions and it will be very difficult me also to get instructions from him if he is in Nepal, even for the main case which is on foot now.  So therefore I reiterate, your Honour, that no…..would be caused by granting this injunction and grave difficulties will be caused to my client if the application is not allowed.

HIS HONOUR:   All right.  Thank you, Mr De Alwis.  Yes, Mr MacLiver.  Just before you start, Mr MacLiver, I am little concerned that I might not have the right regulations in front of me.  Can you tell me what the latest of the regulations are, what the latest date is for them?

MR MacLIVER:   I am sorry, your Honour.  In what respect?

HIS HONOUR:   Well, I have Migration 1993 Regulations. Is there a subsequent set of regulations?

MR MacLIVER:   Yes, your Honour.  Unfortunately those were the previous regulations.  There were substantive new regulations that came into effect in 1994 at the same time as substantial amendments to the Migration Act commenced on 1 September 1994.

HIS HONOUR:   Right.  Just looking at these, Mr MacLiver, in Schedule 2 part 801, there is provision for spouse after entry permit.  Is there a like part in the new regulations?  Mr De Alwis was reading, I think, from part 300, or part 200, I think.

MR MacLIVER:   Yes.  There would appear to be currently, your Honour, at least three categories of classes for spouse visa:  class 100, or subclass 100, subclass 801 spouse visa and a subclass 820 spouse visa.  So there are ‑ ‑ ‑

HIS HONOUR:   Now, class 100, does that apply to applicants before or after entry, Mr MacLiver?  I am just wondering what the categories are.  I am trying to get a current set of regulations.  I am sorry I did not have them.

MR MacLIVER:   Certainly, your Honour, in relation to a class 100 visa, one of the requirements or criteria is that the applicant is a holder subclass 309 spouse (provisional) visa.  So that clearly there is a third category of visa, subclass 309 spouse (provisional) visa, as well as 100 and a class 820 and 801.  Your Honour, with respect, we would submit, your Honour, that the fact that there are these various classes of spouse visa and it is, in a sense, irrelevant to the question which your Honour has to determine today, that my learned friend ‑ ‑ ‑

HIS HONOUR:   Well, why do you say that?  Say there is a category of visa for which he could apply.

MR MacLIVER:   There are two points to that, your Honour.  Let us make that assumption.  Firstly, this case is not about spouse visas.

HIS HONOUR:   No, I know it is not.

MR MacLIVER:   The original application which has led to proceedings in this Court and which are still presently on foot and unamended is an application to review a decision to cancel a spouse visa.  His Honour Justice French, for the reasons which he set out, which are annexed to Mr Corbould’s affidavit, refused to grant an interlocutory injunction pending the hearing and determination of that application.  For the reasons which his Honour gave, there was no merit in the substantive application and his Honour Justice Carr on appeal, or upon an application to seek leave to appeal ‑ ‑ ‑

HIS HONOUR:   Look, I understand that, Mr MacLiver.  I understand what you are saying and there is no doubt a great deal of force in what you are saying.  But I am a little interested in the anterior question whether, if properly advised, he could still make an application for a spouse visa or, indeed, any sort of a visa.  Now, I know what you are saying to me and it is a powerful submission, but it is a matter of concern to me that there is a child in the country of whom he is the father and I do not think it is entirely irrelevant to the exercise of any discretion that I might have, assuming I have it, that he might be able to apply for a visa.

MR MacLIVER:   Well, your Honour, the relevant provisions of the Migration Act in relation to persons such as the applicant applying for a further visa, there are two relevant provisions of the Act, your Honour.  Firstly, section 48 of the Migration Act.

HIS HONOUR:   Now, I just hope I have that.  I have that reprinted with amendments up to 2001, Act No 157 of 2001, is that the most current?

MR MacLIVER:   Yes.

HIS HONOUR:   Right.  Which section, Mr MacLiver?

MR MacLIVER:   Section 48, your Honour.  Section 48(1) provides that:

A non‑citizen in the migration zone who:

(a)  does not hold a substantive visa; and

(b)  either:

(i)  after last entering Australia, was refused a visa, other than a refusal of a bridging visa or a refusal under section 501, 501A or 501B . . . ; or

(ii)  held a visa that was cancelled . . . 

may, subject to the regulations, apply for a visa of a class prescribed for the purposes of this section, but not for a visa of any other class.

Now, the applicant comes within this category, not because he had a visa that was cancelled, because, as your Honour will see from Mr Corbould’s affidavit, the applicant never held a spouse visa and none was ever cancelled, but he did apply for a further student visa in 1997 and that application was refused.  So, therefore, he is a person who comes within the provisions of section 48(1) and, therefore, can only apply for a visa of a kind that is prescribed and the relevant regulation dealing with ‑ ‑ ‑

HIS HONOUR:   Just let me get a grip on section 48, Mr MacLiver.  He is “A non‑citizen in the migration zone”, is that correct?

MR MacLIVER:   Yes.

HIS HONOUR:   He “does not hold a substantive visa”, that is correct also?

MR MacLIVER:   Yes, he does not hold any kind of visa.

HIS HONOUR:   And he “was refused a visa” – well, does he come within (b)(i)?

MR MacLIVER:   Yes, (b)(i), “after last entering Australia, was refused a visa”.

HIS HONOUR:   And “other than a refusal of a bridging visa”.  Was it a bridging visa that was refused?

MR MacLIVER:   No, your Honour.  It was a student visa.  He was originally granted a student visa for two years to do a particular course.

HIS HONOUR:   Yes.  I think he had a bridging visa initially, did he not, and then he was given a student visa, is that right?

MR MacLIVER:   No, it is the other way around.

HIS HONOUR:   The other way around.

MR MacLIVER:   He originally was granted a student visa to attend a course at a particular institution.  Towards the end of the time for that visa he applied for a further student visa and pending the determination of that application he was granted a bridging visa, which is a common course, so that while a person’s substantial visa application is being processed and determined the person remains in Australia legally by holding a bridging visa.

HIS HONOUR:   Well, Mr MacLiver, his bridging visa, did it just expire?  It was not cancelled or did it expire or what was the situation?

MR MacLIVER:   No, that just determines ‑ a bridging visa – the regulations provide for a bridging visa to be in force at the time of the application and for subsequent review.  Once that has been finished, then that visa will expire and I think Mr Corbould’s affidavit indicates that it expired by effluxion of time.

HIS HONOUR:   Right.  So it expired by effluxion of time, so therefore it was not refused.  So he was not within ‑ ‑ ‑

MR MacLIVER:   No, but it was his application for a further substantive student visa that was refused.

HIS HONOUR:   So he is not within 48(1)(b) then, because ‑ ‑ ‑

MR MacLIVER:   No, he is within 48(1)(b).

HIS HONOUR:   He is?

MR MacLIVER:   Yes, “after last entering Australia, was refused a visa”.

HIS HONOUR:   Right.

MR MacLIVER:   He was refused a student visa.

HIS HONOUR:   All right.  So then, because he is within 48(1)(b), he:

may, subject to the regulations, apply for a visa of a class prescribed for the purposes of this section –

Mr MacLiver, I lost you there for a while.

MR MacLIVER:   We are back, your Honour, yes.

HIS HONOUR:   If we can go back to 48.  Because he is within 48(1)(b), he:

may, subject to the regulations, apply for a visa of a class prescribed for the purposes of this section, but not for a visa of any other class.

MR MacLIVER:   Yes.

HIS HONOUR:   Then (2).  He is not within (2)(a).  He is not within (2)(b).

MR MacLIVER:   No, they do not ‑ ‑ ‑

HIS HONOUR:   All right.  Well, which regulation is it that prescribes the purposes referred to in section 48?

MR MacLIVER:   Regulation 2.12, your Honour.

HIS HONOUR:   Regulation 2.12.  Do you have a page for that, by any chance?  I have the current regulations now.

MR MacLIVER:   Yes.  In Reprint 2, your Honour, it is page 121 in volume 1.

HIS HONOUR:   What is the regulation number?

MR MacLIVER:   Regulation 2.12.

HIS HONOUR:   No, I have a different pagination.  Regulation 2.12, let me see.  Yes, “Certain non‑citizens whose applications refused in Australia (Act, s 48)”, is that the heading?

MR MacLIVER:   That is the heading, your Honour, yes.  Subsection (1) provides that for the purpose “of section 48 . . . the following classes of visas are prescribed” and it sets out a number of classes of visa:  change in circumstance residence (Class AG) visa; a

(c)  Protection (Class XA);

(ca)  . . . Medical Treatment (Visitor) (Class UB);

(e)  Territorial Asylum (Residence) (Class BE);

(f)  Border (Temporary) (Class TA);

(g)  Special Category (Temporary) (Class TY) –

and then the five categories of bridging visa and then:

(n)  Resolution of Status (Temporary) (Class UH);

(o)  Resolution of Status (Residence) (Class BL);

Now, they are the only classes of visa prescribed for the purpose of section 48.  Those visas do not include any categories of spouse visa.

HIS HONOUR:   “Special Eligibility (Residence) (Class AO)”, does not?

MR MacLIVER:   I am sorry, your Honour.

HIS HONOUR:   “(Class AO)” in (1)(a), that does not include anything about marriage or spouse or a child?  The first one, Mr MacLiver.  That is “Special Eligibility (Residence) (Class AO)”, is it not?

MR MacLIVER:   I am just – my reprint does not appear to have that, your Honour.  I am just checking the Butterworths Service.

HIS HONOUR:   I have the regulations reprinted on 21 December 2001 with amendments ‑ ‑ ‑

MR MacLIVER:   Yes, your Honour’s version is more up to date than mine, but I have the Australian Immigration Law Service Butterworths and, yes, the first category in subparagraph (a) now is a “Special Eligibility (Residence) (Class AO)” visa.

HIS HONOUR:   Does that have anything to do with a marriage or children?

MR MacLIVER:   I am not sure, your Honour.  If I can try and locate it. 

HIS HONOUR:   Where are all these classes set out, do you know, Mr MacLiver?

MR MacLIVER:   Well, I am just looking at the alphabetical index, your Honour, to see if I could locate that particular visa.

HIS HONOUR:   It is extraordinary that there are 1,300‑odd pages of regulations.

MR MacLIVER:   It makes it a daunting task to try and find one particular one, your Honour.

HIS HONOUR:   It does, indeed.  Where do I find these classes, AO, XA, TA and all of those?

MR MacLIVER:   In the index I have found a reference to it, your Honour.  Family Residence AO and reference No 1115 – I am not sure, but that appears to be a page number.

HIS HONOUR:   It is not a user‑friendly set of regulations.

MR MacLIVER:   No, it is not.

HIS HONOUR:   But there must be somewhere in the regulations that defines the classes which are designated by letters.

MR MacLIVER:   Yes, I think that should be Schedule 1, your Honour.

HIS HONOUR:   Schedule 1, right.

MR MacLIVER:   That should set out the classes of visa and I think I said I saw a number in the index, 1115, so hopefully that – yes, I have found it in my Butterworths Service, your Honour.

HIS HONOUR:   I have it, Mr MacLiver.

MR MacLIVER:   Yes.

HIS HONOUR:   It seems to relate to children, does it not?

(A)  whose parent has been granted a permanent visa; and

(B)  who is included in the parent’s application ‑ ‑ ‑

MR MacLIVER:   Yes, that is true, and subparagraph (vi) refers to:

In the case of an applicant who:

(A)  is the holder of a Subclass 300 (Prospective Marriage) visa ‑ ‑ ‑

HIS HONOUR:   That is prospective marriage.

MR MacLIVER:   Yes.

HIS HONOUR:   And then (C):

seeks to remain in Australia permanently on the basis of that marriage –

What about (B)?  No, again, that is prospective, is it not?  I think that seems to relate to prospective marriage, Mr MacLiver, does it not?

MR MacLIVER:   Yes, your Honour, it does.

HIS HONOUR:   What about (3)(c) – again, prospective marriage?

MR MacLIVER:   Presumably, yes, a prospective marriage visa but particularly, I imagine, be applied for overseas by a person who is coming to Australia on the basis of such a prospective marriage.

HIS HONOUR:   Well, is it your submission, Mr MacLiver, that there is no regulation or section of the Act under which the applicant can apply for a visa in light of his marriage or the birth of his child?

MR MacLIVER:   Your Honour, not while he remains in Australia.  Overseas he can then apply for, but your Honour will note that section 48(1) refers to “A non‑citizen in the migration zone” may only apply for ‑ ‑ ‑

HIS HONOUR:   Yes.

MR MacLIVER:   Your Honour, the other section of the Act which I wish to draw your attention is section 195 of the Act.  That applies to persons who are in immigration detention, which is, of course, the case here.  Subsection (1) says:

A detainee may apply for a visa:

(a)  within 2 working days after the day on which section 194 was complied with in relation to his or her detention; or

(b)  if he or she informs an officer in writing within those 2 working days . . . within the next 5 working days after those 2 working days.

HIS HONOUR:   Well, the applicant raises an issue about that.  He says he was not told.  The applicant raises an issue.  It is not very well expressed, but I think it is there, is it not?  He says that information was kept from him and – let me try to find it.

Yes, if you look at – it is why I asked you, Mr MacLiver, whether you objected to form.  It is not in any of the affidavits, but in that part of a document which I have, “REASONS WHY SPECIAL LEAVE TO APPEAL MUST BE GRANTED” – do you have that document, by the way, Mr MacLiver?  I only received it by fax at about quarter past 10 Brisbane time.  Do you have a copy of it?

MR MacLIVER:   Yes, I do, your Honour.  It was only given to me at the very commencement of this hearing and I have not had an opportunity to read it.

HIS HONOUR:   I only had time to read it quickly, but if you look at Part I on page 2, the second‑last paragraph:

Respondent’s officers were informed when they came to arrest him that he is married to an Australian citizen.  Her name was given . . . Nor did they pay any heed to the fact that he has fathered a child . . . He sought advice from the Respondent’s officers as to what he can do in his circumstances.  He was told that all he can do is to purchase a ticket and fly back to his country, Nepal, as soon as possible.  He was informed that he had no other Right.  He was advised that no application can be made after his arrest.

That seems to run directly counter to – if it is right, of course.

MR MacLIVER:   If it is right, of course, your Honour, yes.

HIS HONOUR:   What is the section?

MR MacLIVER:   Section 195.

HIS HONOUR:   It is not in proper form, Mr MacLiver.  It should have been in an affidavit and properly deposed to.

MR MacLIVER:   And, certainly, it is the type of allegation that the respondent would ‑ ‑ ‑

HIS HONOUR:   Would want to deal with, of course.

MR MacLIVER:   Yes.

HIS HONOUR:   And it is very difficult to deal with it at the moment, of course, because you do not know who the people involved were or ‑ ‑ ‑

MR MacLIVER:   Yes.  I mean, section 194 of the Act, your Honour, is of relevance too because that provides that:

As soon as reasonably practicable after an officer detains a person under section 189, the officer must ensure that the person is made aware of:

(a)  the provisions of sections 195 and 196; and

(b)  if a visa . . . has been cancelled under section 137J –

well, there is not relevant, but certainly standard procedure is, when is a person is detained, to advise a person of the provisions of sections 195 and 196 and to draw a person’s attention, in particular, to the fact that under 195, if they wish to apply for a visa, they have to do so within two days or within five working days if they so inform an officer that they wish that extra time.  I am quite sure that procedure was followed but, of course, I am not in a position to respond with affidavit evidence about that, but be that ‑ ‑ ‑

HIS HONOUR:   Your proposition would be it would not have mattered what he was told, there was no relevant visa application that he could make, is that right?

MR MacLIVER:   Yes.  Under the provisions of section 48 and Regulation 2.12 there was no category of spouse visa which he could apply for in Australia which would enable him to stay here permanently.  I mean, of course, he could have applied for one of the bridging visa categories, but for what purpose?

HIS HONOUR:   Well, I do not know.  I am just a little reluctant to decide it adversely when there is an issue raised – very imperfectly raised, of course, but it is raised.

MR MacLIVER:   Yes, and really, your Honour, with respect to my learned friend, Mr De Alwis, it is not raised properly in respect of the original application that was brought before his Honour Justice French in respect of which his Honour refused an application for an injunction and in respect of whose decision his Honour Justice Carr, exercising the Federal Court’s appellate jurisdiction, refused leave to appeal to the Full Court.

HIS HONOUR:   All of that is completely right and I am not so concerned about that as I am about the fact that once he is out of the country, if there are any other measures which might be available to him, or any other procedures, as a practical matter, it is going to be very difficult for him to pursue them.

MR MacLIVER:   Difficult, your Honour, but not – I mean, he will be entitled to apply for whatever category of spouse visa that he thinks he might meet or any other category of visa, but in the light of the fact that he has a child in Australia, that he might think he meets the requirements of, given that if the marriage is at an end, it might be difficult to get a spouse visa, but there are, I think, categories of visas applying to a relative, and in this case his child, which he might be able to apply for overseas which he cannot presently apply for while he remains in this country.

Really, your Honour, if the applicant wishes to make some other application of a kind either to the Federal Court or to this Court in its original jurisdiction, he should do so, but the present application before the Federal Court and in subsequent applications leading to this present application to this Court are and must be doomed to failure, based, as it is, the original, on an application to review a decision to cancel a visa, a decision which was never made.

HIS HONOUR:   Look, that is undoubtedly correct, but the trouble is if I lift the injunction, Mr MacLiver, he will be out of the country within 36 hours, I would think, and his opportunity to make any other applications that he can, as a practical matter, are really going to be lost, I think.

MR MacLIVER:   Well, not, in fact ‑ ‑ ‑

HIS HONOUR:   I am a little bit sympathetic, Mr MacLiver, because it is apparent to me, from the way in which the documents have been prepared in this case and the applications that have been made, that he is not being properly advised and I propose to tell Mr De Alwis that.

MR MacLIVER:   Yes.  Well, I cannot comment on that, your Honour.

HIS HONOUR:   No, and that is why, Mr MacLiver, notwithstanding that I said last time that the application would be dismissed unless proper material were put before me, I am inclined to give him one more opportunity.  I

think it may turn out to be futile, as you say, but there may be other applications that he can make.

MR MacLIVER:   Well, if there are, your Honour, they should be made ‑ ‑ ‑

HIS HONOUR:   Immediately.

MR MacLIVER:   Is there anything further that your Honour wishes me to ‑ ‑ ‑

HIS HONOUR:   No, thank you for your assistance, Mr MacLiver.  You have been very helpful.

MR MacLIVER:   Thank you.

HIS HONOUR:   Mr De Alwis ‑ ‑ ‑

MR DE ALWIS:   May I ‑ ‑ ‑

HIS HONOUR:   No, Mr De Alwis, I am going to tell you something and I do not want you to interrupt me, please.

MR DE ALWIS:   Yes, sorry.

HIS HONOUR:   The material that you have prepared is in a disgraceful state.  I use that word intentionally.  You have not put before me material in a proper form.  It is not in affidavit form.  It is not on information and belief.  It is hopeless.  The form of your application is misconceived.  I think frankly that this case is totally beyond you.

I do not think you know what you are doing.  Now, these are harsh words, but I am concerned about your client’s interests.  I am going to allow another adjournment.  Against my better judgment, I am going to grant another adjournment and I am going to continue the injunction.  But I strongly counsel you to get somebody in on this case who knows what he or she is doing, because unless it is put in proper form or unless a proper application is made, nothing is going to happen.

You have had abundant opportunity to make some other application, if some other application can be made, instead of making misconceived applications to the Federal Court.  Now, I am going to continue the injunction and I am just going to try to find a suitable date because I am not going to wish this case on some other Judge.

I propose to continue the injunction which I earlier granted until 7 June.  I will adjourn the matter until 7 June at half past 10 Brisbane time.  The injunction will be continued until that time.             It is really to give you an opportunity, Mr De Alwis, to get somebody into this matter who knows what he is doing, or she is doing, with a view to considering whether some other application for some other form of visa or some other application to a court, the Federal Court or this Court, is appropriate.  I am not saying it is.  In fact, it looks to me rather unlikely that there is any such an application available to you, but I am giving your client ample opportunity now to do it provided that he is properly advised.  So that will be my order.

MR DE ALWIS:   Your Honour…..

HIS HONOUR:   What is that?

MR DE ALWIS:   May I mention, your Honour, that on the 18th when his sister came to me, I immediately advised them that they should make an application for a spousal visa, immediately also that they should at least ‑ ‑ ‑

HIS HONOUR:   Mr De Alwis, I am not interested in that.  All I know is that proper applications have not been made.  Both as to form and substance, they are highly defective, the applications that have been made.  I do not want to hear any more about it.  I am adjourning the matter.  I just want to hear whether Mr MacLiver has any further applications.  You should take this – just before you sit down, Mr De Alwis.  I notice in your written outline of submissions you deal with a suggestion – I do not know whether it is more than a suggestion – but you purport to deal with a suggestion that an application might be made that you pay the legal costs personally.

Now, if Mr MacLiver makes an application to me now, I am not going to make an order as to today with respect to who should pay the legal costs, but you should bear very, very carefully in mind what I have said, in the event, in the future, that any such application is made by Mr MacLiver.  Now, I am not going to make any order for costs against you personally today.  I just want to hear from Mr MacLiver.

MR DE ALWIS:   Thank you, your Honour, thank you very much.

HIS HONOUR:   Mr MacLiver, you still would not have had a chance to read the purported outline that I have been given, but towards the end of it Mr De Alwis is arguing, as I read it, that he should not have to pay the costs personally.  Have you had an opportunity to see that?

MR MacLIVER:   I have not, your Honour, no.

HIS HONOUR:   Costs – it is in Part 4.

MR MacLIVER:   Yes.  What page, your Honour?

HIS HONOUR:   Page 11, Mr MacLiver.

MR MacLIVER:   Thank you.  Your Honour, I would seek an order for the costs of today and ‑ ‑ ‑

HIS HONOUR:   Well, I propose to make an order for costs of today, Mr MacLiver, but on an ordinary basis.  Is there any suggestion that the respondent might seek an order for costs against Mr De Alwis personally, because that is what he seems to be dealing with?

MR MacLIVER:   Yes, your Honour.  It is in the special leave application summary of argument of the respondent that ‑ ‑ ‑

HIS HONOUR:   Yes.

MR MacLIVER:   ‑ ‑ ‑ in paragraph 25 we have indicated that he has not paid them.

HIS HONOUR:   Well, he has been put on notice about that anyway.

MR MacLIVER:   Yes.

HIS HONOUR:   Yes, all right.  Mr MacLiver, that will be the order I will make, that the injunction be continued until the date and the time that I have given.  I will order that the applicant pay the respondent’s costs of today because the material has been presented in unsatisfactory form and you really have not had a proper opportunity to deal with it, in any event.  When the matter comes back on for hearing, it would assist me, Mr MacLiver, if you could extract for me and provide for me separately all of the relevant regulations and sections of the Act, including those that might only be remotely relevant.  You understand what I am suggesting to you?

MR MacLIVER:   Yes, your Honour.  We will undertake to do that.

HIS HONOUR:   I understand your position on spouse visas and the like.  I understand it fully, but it might be helpful for me if I could have those sorts of provisions as well as ones relating to children.  You understand what I am saying?

MR MacLIVER:   Yes, very well, your Honour, yes.

HIS HONOUR:   I think I will give some directions.  I will order that the applicant file material, if any, in proper form by 23 May.  I will not make any order in respect of your position, Mr MacLiver, but it may be that you will want to put on an affidavit contradicting matters if we get something in proper form that needs contradiction, but you can have until the hearing to do that.

MR MacLIVER:   Thank you, your Honour.

HIS HONOUR:   The reasons why I am granting the adjournment, there are two matters.  It is apparent to me that the applicant has not been properly advised and should be given one further opportunity to seek proper advice as to whether other applications, either for visas or to the Court, might be made and in order to enable other representation and/or proper material to be filed on his behalf.  The injunction will be extended until 5.00 pm on 7 June next.

Anything further, Mr MacLiver?

MR MacLIVER:   No, thank you, your Honour.

HIS HONOUR:   Yes.  Thank you for your assistance, Mr MacLiver.

MR MacLIVER:   Thank you, your Honour.

MR DE ALWIS:   Before your Honour adjourns ‑ ‑ ‑

HIS HONOUR:   Yes, Mr De Alwis.

MR DE ALWIS:   ‑ ‑ ‑ for the purposes of the record, your Honour, may I mention the fact that I have advised my client that he can be granted a visa under section 351 through the Minister because he can ‑ ‑ ‑

HIS HONOUR:   Well, Mr De Alwis, I am not interested in that.  All I am interested in is this man obtaining proper advice and do not come back before me on 7 June telling me what he can do.  If he can make applications, make them.

MR DE ALWIS:   Thank you.

HIS HONOUR:   All right.  Nothing further.  Adjourn the Court.

AT 12.07 PM THE MATTER WAS ADJOURNED
UNTIL FRIDAY, 7 JUNE 2002