Herijanto, Muin, Lie v RRT

[2000] HCATrans 233

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S97 of 1998

B e t w e e n -

HERIJANTO (As the Representative of the Plaintiffs listed in the Schedule)

Plaintiff

and

REFUGEE REVIEW TRIBUNAL

First Defendant

SECRETARY OF THE DEPARTMENT OF IMMIGRATION AND MULTICULTURAL AFFAIRS

Second Defendant

COMMONWEALTH OF AUSTRALIA

Third Defendant

Office of the Registry
  Sydney  No S36 of 1999

B e t w e e n -

MUIN (As the Representative of the Plaintiffs listed in the Schedule

Plaintiff

and

REFUGEE REVIEW TRIBUNAL

First Defendant

SECRETARY OF THE DEPARTMENT OF IMMIGRATION AND MULTICULTURAL AFFAIRS

Second Defendant

COMMONWEALTH OF AUSTRALIA

Third Defendant

Office of the Registry
  Sydney  No S89 of 1999

B e t w e e n -

NANCY LIE (As the Representative of the Plaintiffs listed in the Schedule

Plaintiff

and

REFUGEE REVIEW TRIBUNAL

First Defendant

SECRETARY OF THE DEPARTMENT OF IMMIGRATION AND MULTICULTURAL AFFAIRS

Second Defendant

COMMONWEALTH OF AUSTRALIA

Third Defendant

For mention

GAUDRON J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON MONDAY, 29 MAY 2000, AT 9.30 AM

(Continued from 28/4/00)

Copyright in the High Court of Australia

______________________

MR M.A. ROBINSON:   If the Court pleases, I appear again for the plaintiffs in this matter.  (instructed by Adrian Joel & Co)

MR R.T. BEECH-JONES:  If the Court please, I appear on behalf of the second and third defendants.  (instructed by the Australian Government Solicitor)

HER HONOUR:   Well, now, where are we, in these matters?

MR ROBINSON:   Your Honour, I am pleased to say there is only one outstanding issue between the parties and that goes to a new matter which is the plaintiffs seek the addition of some further persons in Muin and Lie's Case.  To that end, the draft short minutes of order which we seek are attached to an affidavit of Mr Joel, sworn this morning, which we seek to file in Court with your Honour's leave.

HER HONOUR:   Is there any objection to that, Mr Beech-Jones?

MR BEECH-JONES:   The affidavit, no, your Honour.

HER HONOUR:   Thank you.  I have not read it.

MR ROBINSON:   No, your Honour.  We do read that affidavit but the orders that we seek are substantially identical to the orders that we sought on the last occasion back in April.

HER HONOUR:   How many more?

MR ROBINSON:   I have not counted them, your Honour.  About 150, I am instructed, your Honour.  That includes, I am instructed, not primary applicants but those family dependants of primary applicants.  That is why the numbers are so large, your Honour.

HER HONOUR:   Yes, thank you.  That is opposed, Mr Beech-Jones?

MR BEECH-JONES:   It is opposed, your Honour, but I do not have anything further to submit than I did on the last occasion.

HER HONOUR:   Well, in that event, I will make the same order as I did on the last occasion which is in terms of the short minutes of order annexed and marked A referred to in the affidavit of Adrian Phillip Joel, solicitor, filed in Court this morning.

MR ROBINSON:   If your Honour pleases.

HER HONOUR:   Now - - -

MR BEECH-JONES:   Where do we go from here, perhaps, is the ‑ ‑ ‑?

HER HONOUR:   That is exactly right, Mr Beech-Jones.

MR BEECH-JONES:   It would, in our respectful submission, be that the matter is now ready for hearing.

HER HONOUR:   Well now, what we need to do, do we not, is see what facts are agreed and what facts are in dispute?  The questions of law have been isolated, have they not?

MR BEECH-JONES:   To the best that - at least from our side of the Bar table - we can, your Honour.  We have, I think, filed a document called the "Second and Third Defendant's Proposed List of Issues" before the last directions hearing.  I do not know if your Honour has that. 

HER HONOUR:   I did have it at one stage.

MR BEECH-JONES:   To the best that we could isolate the issues by reference to my friend's pleading, I must say we never got above a mixed question of fact and law, unfortunately.  The highest we really could get it is that it may be that the decision of this Court in Aala, depending on what may be the range of outcomes, may be such that even if my friend, at least on some of the grounds he argues, even if he makes all factual matters out,

it would not be a circumstance that gave rise to the issue of a writ set out in section 75(v) of the Constitution.

HER HONOUR:   I do not follow that, I am sorry.

MR BEECH-JONES:   It may be that even if my friend establishes all the necessary factual points that he puts in issue, those circumstances may still not be sufficient to establish the grounds for the issue of a writ provided for in section 75(v).

HER HONOUR:   Yes, I follow now.

MR BEECH-JONES:   I am sorry if I was unclear about that.  But we are, to a large extent, dependent upon the decision in Aala.  Otherwise, it does seem to us very difficult to argue a question like that, absent findings of fact.

HER HONOUR:   Do you agree, Mr Robinson, that these are the issues in ‑ ‑ ‑?

MR ROBINSON:   Your Honour, we have had no input into this document but can I say - I presume that your Honour is looking at the "Defendant's Proposed List of Issues"?

HER HONOUR:   "Second and Third Defendant's Proposed List of Issues" filed in the Court on 27 April 2000, numbering, in all, 13, with lots of As and Bs.

MR ROBINSON:   Your Honour, broadly, yes, subject to some additions and the removal of only a few words which I could take your Honour to - we do broadly agree with them, yes.  I do agree with what my learned friend said about the issues raised in the Aala Case.  They are procedural fairness with legitimate expectation as being that which enlivened the procedural fairness.  So that the two issues in Aala's Case invoking the constitutional prerogative writs are directly relevant to the two grounds sought in these proceedings.  So, it might be best that - - -

HER HONOUR:   Would it not be preferable if the parties now set out an agreed statement of facts and then an agreed statement as to factual matters in issue?

MR ROBINSON:   Subject to some relevantly tinkering, as it were, with this list of issues we broadly do agree with it and it contains a list of contested facts and agreed facts, as it were, but this document does take us a fair way down that track, your Honour.

HER HONOUR:   Question 1 does not need further notices, does it?

MR ROBINSON:   Does not necessarily - - -?

MR BEECH-JONES:   I would agree, needs further expansion to give it a factuals underpinning.  I mean, you need to know what practice note and matters of that kind, I think, if that is what your Honour is getting at.

HER HONOUR:   Yes.  I was rather hoping we might be able to get an agreed statement of facts upon which we could formulate questions for a Full Bench.

MR BEECH-JONES:   Anticipating the nature of the facts over which we divide, I think we may have a real difficulty with that, your Honour.

HER HONOUR:   Yes, I know you will but then how else are we going to isolate the facts that need to be determined?

MR BEECH-JONES:   If I could conclude that sentence, other than if the question for the Full Bench was, "Even if the plaintiff demonstrates all these facts set out hereunder, do they nevertheless ground the issue of a writ?"  I should add this:  there is also a construction question involved about section 418 too.  I have not - - -

HER HONOUR:   Yes, but we do not wish to be troubling the Full Bench on half a dozen different occasions, do we, with these issues?

MR BEECH-JONES:   No.

HER HONOUR:   Could we not proceed by preparing a draft case stated? When we find out where the areas of factual disagreement are, then we can either refer to them in the case stated as matters that are not agreed or we can work out some method by which the facts can then be determined.

MR BEECH-JONES:   Prior to the referral?

HER HONOUR:   Yes.

MR BEECH-JONES:   I certainly do not see any problem in exploring - having an attempt at that, your Honour.

HER HONOUR:   Do you see any difficulty with that?  I mean, it cannot go for hearing at the moment without some agreement on those.  There must be some matters in agreement like that the people are in Australia.

MR BEECH-JONES:   Yes.

HER HONOUR:   Yes, and they can all be set out.

MR ROBINSON:   There is a large common ground, your Honour, factually, there is no doubt about that.

HER HONOUR:   Well then, why does not the Commonwealth prepare what it says is a draft stated case or a draft agreed facts or a draft - I mean, even a statement of agreed facts?

MR BEECH-JONES:   Your Honour, I have no difficulty in drafting what I think would be the facts that are clearly in agreement, and I do not mean any criticism of the pleading, but we are a little bit uncertain as to precisely the facts and inferences that my friend would be contending for, particularly when I think he says he would like to cross-examine the deponents of our affidavits.

HER HONOUR:   Well, I need to know what facts are in dispute before we can even take that step of listing matters for cross-examination.

MR BEECH-JONES:   All I was going to suggest is my friend do that bit of the statement.

HER HONOUR:   Well, why do you not submit a draft statement indicating what you believe are agreed facts and what facts are in issue and submit it to Mr Robinson, say, within 14 days.

MR BEECH-JONES:   Yes, your Honour.

HER HONOUR:   And Mr Robinson to reply to you within 14 days.  That would be sufficient time?

MR BEECH-JONES:   Yes, your Honour.

HER HONOUR:   And at that stage we will see what factual matters are in dispute.  These issues are not really the ultimate issues that you have identified here.  Well, not all of them are ultimate issues, Mr Beech-Jones.  The ultimate issues are, in each case, are they not, whether there was a breach of statutory requirements and whether there was a breach of rules of procedural fairness - the requirements of procedural fairness?  They are the ultimate questions, are they not?

MR BEECH-JONES:   Yes, your Honour.  Can I just say this:  the trouble with posing them in those terms is it is not entirely clear from the pleadings - my friend has a number of claims for relief.  One includes a declaration that the statement of claim in its latest version is not precisely clear whether it is all claimed in relation to the final decision of the Tribunal.  There appears to be alternative claims that there was a declaration that something went astray along the procedure but not necessarily connected to a claim in relation to the final decision of the Tribunal but that was the best we could do in any event.

HER HONOUR:   Well, the ultimate question, I suppose, is should the decision of the Tribunal be - well, should prohibition issue?

MR BEECH-JONES:   Yes, against the second and third defendants in respect of the decision of the first defendant, I suppose.

HER HONOUR:   Yes.  Prohibition and certiorari, I suppose.

MR BEECH-JONES:   And mandamus, I presume.

HER HONOUR:   Well then, mandamus would be consequential.  Is that right, Mr Robinson?

MR ROBINSON:   Yes, your Honour.

MR BEECH-JONES:   I also assume my friend accepts that to get certiorari there has to be jurisdictional error, at least, in - - -

HER HONOUR:   Well, that is not entirely clear.

MR BEECH-JONES:   No.

HER HONOUR:   I mean, it is well established that certiorari will lie as an ancillary remedy once prohibition is granted.

MR BEECH-JONES:   Yes, or mandamus.

HER HONOUR:   Yes.

MR BEECH-JONES:   Perhaps we should take up your Honour's course and see where that takes us because I do not suggest that within those questions there is not three or four other questions.

HER HONOUR:   Exactly.

MR BEECH-JONES:   I do not suggest that for a minute, it is just ‑ ‑ ‑

HER HONOUR:   But this is hardly a document that one can refer to the Full Bench.

MR BEECH-JONES:   I would not suggest that for a minute, your Honour.

HER HONOUR:   Are you happy with that course, Mr Robinson?

MR ROBINSON:   Yes, your Honour.  It may be that once that course is undertaken, the areas of factual contention are clarified.

HER HONOUR:   Well, I hope they are.  If they are not, there will be trouble.

MR ROBINSON:   Yes, but, your Honour, it may be appropriate at that point to stay the matter until the ultimate issues, as affected by Aala, are determined.

HER HONOUR:   Yes.  Well, I am not entirely sure that Aala is going to determine this.

MR ROBINSON:   Either way, that document - - -

HER HONOUR:   Aala was a case - it has some similarities but ‑ ‑ ‑

MR ROBINSON:   As I understand the issues in that case, it would go to the ultimate question that your Honour has set out, that is, whether or not, even if the case is made out, the relief can be granted at all.  That is the contentions of the Commonwealth in the written submissions, certainly, in Aala's Case which I have seen, your Honour - go directly to whether or not the Court can grant relief, as it were, even if the plaintiffs here make out all their claims in terms.  So that, we do agree with - - -

HER HONOUR:   Well, we will see about a stay.  It would be much better if things were put in order and ready to go because - - -

MR ROBINSON:   It is a useful process, your Honour - - -

HER HONOUR:   Because, if not, they will just dawdle on for months.

MR ROBINSON:   Your Honour, it is a useful process.  We are content to go that far.  In terms of whether or not an issue can be carved out, as it were, and referred to the Full Court, we are not so - - -

HER HONOUR:   Well, it can be in due course but there have to be facts agreed and/or found.

MR ROBINSON:   Yes, your Honour.

HER HONOUR:   There is no point asking the Full Bench to find the facts.

MR ROBINSON:   No, your Honour.

HER HONOUR:   So, that has to be done some other way.

MR ROBINSON:   We are content to take this next step, your Honour.

HER HONOUR:   Yes, very well.  Would 27 June be - we will adjourn this.  Would 9 am be too early?

MR ROBINSON:   On 27 June?

HER HONOUR:   Yes.

MR BEECH-JONES:   No, your Honour.

MR ROBINSON:   It would be suitable, your Honour.

HER HONOUR:   Now, if we have problems about this, getting it in order ‑ counsel might like to talk amongst themselves on this - I will have time available in the first three weeks of July to see if we can - but not in the fourth.  You might conveniently discuss the matter between yourselves and if you need time that is when it will be.

MR BEECH-JONES:   Does your Honour mean that you have that time available to do some fact finding?

HER HONOUR:   I have three weeks available to do whatever needs to be done.

MR BEECH-JONES:   Right.  Thank you, your Honour.

HER HONOUR:   But that is no reason why you should not - - -

MR BEECH-JONES:   - - - try to do the best we can, yes.

HER HONOUR:   Yes.  Very well, the only order that needs to be made, apart from the order that has already been made, is - - -

MR ROBINSON:   - - - stand the matter over.

HER HONOUR:   Stand the matter over until 9 am on 27 June.

MR BEECH-JONES:   Will your Honour certify for counsel?

HER HONOUR:   Yes, I will certify for the attendance of counsel.  I do not know if I need to at this stage but I will certify for today's attendance.

MR BEECH-JONES:   Thank you, your Honour.

HER HONOUR:   Very well, we will adjourn until 9 am on 27 June.

AT 9.51 AM THE MATTER WAS ADJOURNED
UNTIL TUESDAY, 27 JUNE 2000