Holland, Ex Parte - Re MIMA and Ors P5/2001

[2001] HCATrans 527

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry  No P5 of 2001

In the matter of -

An application for a Writ of Certiorari and Prohibition against –

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Respondent

RAHIMA BANNERMAN

Second Respondent

IMMIGRATION REVIEW TRIBUNAL

Third Respondent

Ex parte

ARINAH HOLLAND

Applicant/Prosecutor

KIRBY J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

FROM PERTH BY VIDEO LINK TO SYDNEY

ON WEDNESDAY, 17 OCTOBER 2001, AT 11.02 AM

(Continued from 8/10/01)

Copyright in the High Court of Australia

MRS A. HOLLAND appeared in person.

HIS HONOUR:   You have your husband present today with you?

MRS HOLLAND:   Yes, your Honour.

MR L.A. TSAKNIS:   Your Honour, I appear for the first respondent, the Minister.  (instructed by the Australian Government Solicitor)

HIS HONOUR:   This matter was before me on an earlier occasion and was stood over to today in order to permit exploration of the question of whether the supervening marriage of the applicant and her husband, Mr Holland, gives rise to any new right in the applicant to seek a different basis for permanent residency or another visa to allow her to remain in Australia.  What is the position, Mrs Holland?  I have an affidavit from you.  Does that state the position as far as you understand it?

MRS HOLLAND:   Yes, your Honour.

HIS HONOUR:   This is an affidavit sworn by you and dated 12 October 2001.

MRS HOLLAND:   That is correct, your Honour.

HIS HONOUR:   And also you have filed an affidavit of your husband, Richard Holland, which is sworn on the same day.

MRS HOLLAND:   Yes, your Honour.

HIS HONOUR:   You rely on both those affidavits.

MRS HOLLAND:   Yes.

HIS HONOUR:   Yes, very well.  Well, I have read those.  Mr Tsaknis, could you just tell me what the position is as far as your inquiries have been able to ascertain?

MR TSAKNIS:   Yes, your Honour.  I am advised in relation to what the position is, is that under the Migration Act, under section 48, further applications can be made in particular categories of visa.  Where a visa application has been refused, section 48 allows applications of certain further categories to be made within Australia.  Now, outside ‑ ‑ ‑

HIS HONOUR:   Does that apply to a person who has become married to an Australian citizen?

MR TSAKNIS:   It does not apply to enable any applicant to apply for a visa of the kind that was refused in this case, that is, one cannot simply make an application under regulation 820 for a spouse visa within Australia.  That is, one would have to go overseas and lodge the application overseas to apply for the particular category of visa which was refused in this case.  That is the position with this category of visa.  Having said that, the Act does provide, under section 48, that one:

may . . . apply for a visa of a class prescribed for the purposes of this section.

As I said, a spouse visa of this kind which was refused is not a class prescribed but the Act does go on and specify it through regulations, and they are set out at regulation 2.12.  The other categories of visa which can be applied for and they are not necessarily ones which have to be applied for outside Australia.

HIS HONOUR:   Are any of those relevant to a person who has married an Australian citizen?

MR TSAKNIS:    Perhaps the widest one, for example, your Honour, there is a category of visa called a special category temporary class TY visa and that is not restricted or its not prescribed in any way except simply that the application must be made in Australia .

HIS HONOUR:   That is not the Bridging E category which, I think, is the one which the applicant has at the moment, is that so?

MR TSAKNIS:   There is a Bridging B – I am just looking at – they are contained in regulation 2.21 and there is – I might just go through regulation 2.12, there is a Bridging B category in subparagraph (j) of regulation 2.12, a Bridging B class WB visa.  I mention these because it may be – whilst, of course, I am not here to offer legal advice, it may be applicants may not be aware of these categories.  There is a category, as I said, the Bridging class WB which is a bridging visa.  I am just seeing if I can locate quickly what the criteria for that bridging visa is.  The Act appears…..class WA, class WC and class WE.  I am just looking at regulation 2.21.  It does not actually specify.  I am trying to locate where class WB appears.

Your Honour, the short position is that the applicant now presently has no visa whatsoever.  The only issue seems to be whether or not she has to apply outside the country or whether or not she can bring herself within a particular category which allows her to make an application within Australia.  As I said, the various categories are set out in 2.12 of the regulations which set out the categories which can be applied for ‑ ‑ ‑

HIS HONOUR:   Which regulation is that?

MR TSAKNIS:   - - - without necessarily having to leave the country.  The Department does not know which, if any, or either the applicant of course wishes to avail herself of.  I only make reference to the special category temporary class TY visa because that seems to be a category which, on its face, gives a very wide discretion and which, under regulation 2.12 is available under subparagraph (g) for an application which can be made within Australia.  But, otherwise, to apply – unless one is within one of those categories in regulation 2.12, one has to leave Australia and make the application offshore under section 48 of the Act because it limits it to those – the applications made can only be made in respect of those categories which are prescribed for the purposes of section 48 of the Act which I say are set out in 2.21.

HIS HONOUR:   Is there a power in the Minister or departmental official to waive that requirement?

MR TSAKNIS:   I am sorry, your Honour, the volume seems to have gone?

HIS HONOUR:   Is there a power in the Department or in the Minister to waive that requirement?

MR TSAKNIS:   No, there is not, your Honour.  The only power – no, the short answer is no, your Honour.  There is nothing in the Act to indicate the Minister can waive the requirement in those particular provisions.  I am just seeing whether there is a general provision which enables the Minister notwithstanding any of those categories to grant a visa in any other category.  My instructions are there is not, your Honour, and I have not been able to find one.

HIS HONOUR:   I am surprised that this is so because I think Franz Kafka could not write a more puzzling story of a person who claimed to be in a de facto relationship; was refused because it was held, in effect, that she was not or was not in an exclusive de facto relationship; has now got married to the person who she claimed to be in a de facto relationship and, in that sense, has confirmed what she has been saying all along, but it is now said that although she is the wife of an Australian citizen and although she has no criminal convictions and although she has been in this country for a decade, she has to leave and take her chances as to whether she will receive a visa.  I mean, you could write a very good novel about this story.

MR TSAKNIS:   Yes, your Honour.

HIS HONOUR:   And when you wrote the novel, people would not believe it.  They would say it was too fictional, too fantastic.  There is, in section 391 of the Act, a power of the Minister to substitute a more favourable decision in certain circumstances.  Is that one that could apply here, or is there an equivalent section to that section that would be applicable in the case of this application from the Tribunal?

MR TSAKNIS:   Your Honour, I am looking at section 351 of the Act which deals with certifications from the Migration Review Tribunal.  Section 351 states:

If the Minister thinks that it is in the public interest to do so, the Minister may substitute for a decision of the Tribunal under section 349 another decision, being a decision that is more favourable to the applicant, whether or not the Tribunal had the power to make that other decision.

So, in other words, it seems to me that even though the Tribunal may be limited into what it can do, the Minister has a general discretion under section 351 if he or she considers it to be in the public interest to make a different decision and whether or not the ‑ ‑ ‑

HIS HONOUR:   There were in my papers a number of letters, one of which was a letter to Senator Patterson who, I think, was Minister assisting the Minister for Immigration and Multicultural Affairs, and I assumed that that was a letter asking that such a discretion be exercised.  I am not sure whether that has already been exhausted or whether it was exhausted before the marriage of the applicant to her husband, Mr Holland.

MR TSAKNIS:   That letter, as I understand it, your Honour, was written before the matters which are now presently sought to be brought before the Court had emerged, that is, there has been a marriage and there has been notification of the actual marriage.  My understanding is that those if I can call them “new matters” have not been put forward in any application for reconsideration, whether under section 351 or any other section.

HIS HONOUR:   Would you ask your instructing officer whether or not, in the light of the supervening marriage and in the light of the long residence of the applicant in Australia, there would be point in the applicant renewing an application to the Minister under section 351(1) to engage the Minister’s attention to the fact that the applicant has now married Mr Holland and asking that the Minister substitute a decision more favourable to the applicant than that which was made by the Tribunal in this case.  In short, is there any point in that avenue being pursued?

MR TSAKNIS:   I will explore that, if I may just have a moment.

HIS HONOUR:   Yes, indeed.  You take as much time as you need.

MR TSAKNIS:   Thank you, your Honour.  Your Honour, the instructions I have are, firstly, that no application under section 351 has been made either prior to or in the light of this information.  So, that is the starting point.  My instructors are, understandably, in a somewhat difficult position that they cannot speak for what the Minister may or may not do if an application is made.  Noting that the criteria is “it is in the public interest”, whether or not the Minister would seek to impose conditions prior to considering that application is also something that my instructors cannot speak of.  I am aware that in the past one of the criteria or one of the matters the Minister considers in determining whether to consider an application is whether or not an applicant is prepared, if you like, to go offshore as a criteria or as a precondition for the Minister considering his powers or exercising his powers under section 351 which, of course – as I said, I am not saying that would necessarily happen in this case, given the long period of residence in Australia, but that is a possible scenario, the Minister will say, “Yes, I will consider your application but I will only consider it in circumstances, given you no longer have a visa where you are not resident in the Australian migration zone.”  So, I put that as a sort of possible hybrid scenario but I think the short answer is that no application has been made and my instructors are, quite understandably, not in a position to be able to say what the Minister would do if such an application were made, but, prima facie it would certainly ‑ ‑ ‑

HIS HONOUR:   Do you have the applicant’s affidavit which is sworn – the earlier affidavit?

MR TSAKNIS:   Yes, I do, your Honour.

HIS HONOUR:   This is an affidavit sworn 27 March 2001.

MR TSAKNIS:   Yes, I do, your Honour.

HIS HONOUR:   Annexed to that affidavit are a number of annexures including AH2.  That is a letter to the Minister, Mr Ruddock, in which, in effect, the Minister’s discretion was enlivened and that led to a letter from Senator Patterson dated 28 December 1998, AH3, in which the Senator indicated that the Minister had asked her to reply on his behalf and referred to section 351 and stated that:

It is currently taking some time to finalise requests such as yours but please be assured that you will be contacted again when examination of –

the –

case has been completed.

Then there is AH4, which is dated 26 February, in which it is stated by the solicitors for the applicant to Senator Patterson:

that the hearing of the divorce –

is fixed for –

27 April 1999.

And then there is a letter of 10 May, also to Senator Patterson, from the solicitors, AH5, which states that the dissolution of marriage had been granted.  And:

Mrs Holland advised the Court that she was withdrawing her response and thereby accepting that the parties separated on the 25 December 1995.  We are instructed that since that date our client has been living in a de facto relationship –

Now, it is at that point that the correspondence seems to peter out.

MR TSAKNIS:   Yes, your Honour.

HIS HONOUR:   And there is no subsequent letter to the Minister assisting the Minister informing her of the fact that in the meantime the present applicant and Mr Holland had become married.  Now, do you know whether Senator Patterson or the Minister ever responded on the basis of AH2, AH3, AH4, and AH5, to what was an application for enlivening the discretion under section 351 of the Act?  Do you know if that was ever answered or not?

MR TSAKNIS:   I do not know, your Honour.  Maybe the applicants can indicate whether they are aware the Minister has responded or not.  They have handed me a letter; if I might take a moment to read it.  I have been handed a letter from the applicants dated 29 September 2000 signed – I must say it is the first time I have seen it, your Honour – by the Minister, Mr Ruddock, on 29 September 2000 stating:

I have decided not to consider exercising my power in this case.

That is in relation to section 351 of the Act.  So, the short answer is on the available information that the Minister had at that time, that is, as at 29 September 2000, the Minister wrote saying that he would not exercise his powers under section 351.

HIS HONOUR:   That was on 27 July 2000.  Are you aware of the date of the marriage of the applicant and Mr Holland?

MR TSAKNIS:   If I may just refer to – 22 April 2000, your Honour, which predates, obviously, the Minister’s letter.  I suppose perhaps the more relevant question which it is silent on is whether the Minister was apprised of the marriage. 

HIS HONOUR:   Yes.  Well, perhaps I had better ask the applicant that.  Thank you for your assistance.

MR TSAKNIS:   Thank you, your Honour.

HIS HONOUR:   Now, Mrs Holland, first of all, you should have placed that letter from Mr Ruddock before me.  It is not much use giving the High Court only part of the evidence.  You should have given the evidence that continued the chronology that just petered out with the letter from Senator Patterson and the letter from your solicitors to Senator Patterson.  Why did you not include the letter from Mr Ruddock?

MRS HOLLAND:   I apologise for my error, your Honour.  I did include this document in the Federal Court when I applied for it previously.  I do apologise for that, your Honour.  I am very sorry.

HIS HONOUR:   Yes.  Well, you have to be candid to courts.  You cannot just give courts half the evidence and then have evidence turning up, although I take into account that you produced that letter to Mr Tsaknis and therefore you were not trying to hide the matter.  Had you written to Mr Ruddock before his letter of 29 July telling him that on 22 April 2000 you had married Mr Holland?

MRS HOLLAND:   Yes, I did, your Honour.

HIS HONOUR:   So, he knew that?  He knew that when he refused to exercise his powers under section 351, is that right?

MRS HOLLAND:   Yes, correct, your Honour.

HIS HONOUR:   So, you accept that when the Minister considered the application addressed to section 351 he knew that you were married to

Mr Holland and that you had regularised your relationship and notwithstanding that, he refused to exercise his discretion to substitute a more favourable decision than that which had been reached by the Tribunal?

MRS HOLLAND:   Yes, your Honour, correct.

HIS HONOUR:   Well now, that being the case, this Court does not have a power to interfere in the Minister’s exercise of his discretion.  The only question is whether or not prohibition should issue to the Tribunal or to the delegate as you seek because of some jurisdictional mistake or error that they have made.  Otherwise, it looks as if you are going to have to go offshore and renew your application on the basis that you have married Mr Holland in the meantime.  Do you understand that?

MRS HOLLAND:   Yes, your Honour.

HIS HONOUR:   Now, so far as your application is concerned, it is very important that you understand that the power of the Court is extremely limited in reviewing the decision of the delegate and of the Tribunal.  I cannot simply say that on the merits I would have granted you a visa.  You have to show effectively that the delegate and the Tribunal acted outside their jurisdiction.  One way you can do that is to show that they acted in breach of the rules of natural justice.  Now, what is your complaint about natural justice?

MRS HOLLAND:   Would you let my husband, Richard Holland, speak to you, your Honour?

HIS HONOUR:   Yes, that is all right.  You ask him to speak on your behalf, do you?

MRS HOLLAND:   Yes, your Honour.

HIS HONOUR:   Yes, very well.

MRS HOLLAND:   Thank you.

MR R.J.E. HOLLAND:   Good morning, sir.

HIS HONOUR:   Good morning, Mr Holland.  Well, what is the breach of natural justice?  Do you understand the distinction I made when I spoke to your wife?

MR HOLLAND:   Yes, sir, I do understand.

HIS HONOUR:   It is a distinction that is laid down in many, many cases and it is binding on me.  I am not sitting here as an appeal court either from the delegate or from the Tribunal.  I cannot simply substitute a different decision because I would have reached a different decision.  I have to ask myself is there an error of jurisdiction; have they misunderstood their jurisdiction or stepped outside their jurisdiction or acted in a way that the law says is against their jurisdiction, and one way is if they have acted outside the rules of natural justice.  If they have failed to accord to your wife the rules of natural justice.  Now, I understand that that is your contention.  How do you advance that contention?

MR HOLLAND:   I advance that contention, sir, with regards to the chairperson of the Tribunal, Rahima Bannerman.  If we were able to have received the transcript of the Immigration Review Tribunal, I feel certain that the contents of the transcript would show very clearly and very precisely that Ms Bannerman was showing extreme levels of bias towards our case, sir.

To cover this case in the early stages; when we first went to see Ms Bannerman with regards to the Immigration Review Tribunal, she called us in for a pre-meeting so that we understood what was going on.  Ms Bannerman, at the time, when she greeted us, I feel certain that she was aware that Arinah is a Moslem woman and Ms Bannerman I am not totally sure of where she stands in this, but when we did see her - many people are aware that provocative clothing is considered unnecessary in Islam and when we went and saw Ms Bannerman, I have to say that I really think that her dress was inappropriate.

HIS HONOUR:   Well, I do not see what that has to do with the issue of natural justice.  I mean, there - - -

MR HOLLAND:   No, I was just ‑ ‑ ‑

HIS HONOUR:   Just a moment, please.  Mr Holland, there would be some Australians, as you and your wife would be only too aware, who would consider your wife’s dress to be provocative and upsetting to them and, just as you have to put up with other women wearing what you call provocative dress, so other people have to be content that your wife’s wears dress that they find provocative.  We live in a multicultural society and we just have to tolerate each other.  That is the nature of Australia.  So, I do not think I should really pay any attention to what you say is the provocative dress of Ms Bannerman because her dress is her business, just as your wife’s dress is her business and I do not believe I should show any discrimination or feeling against Ms Bannerman anymore than I do against your wife.  Do you understand that?

MR HOLLAND:   Yes, sir.  May I continue, sir?

HIS HONOUR:   What is your next point?

MR HOLLAND:   Well, my next point, sir, is in the statements and conclusions that Ms Bannerman made in her report, it is totally, totally not in keeping with what myself and Arinah and my father and other people who appeared before the Tribunal recalled it to be and we have been trying to get hold of this transcript and I feel absolutely certain that if we can get hold of this transcript we will be able to show very clearly and irrevocably that a breach of natural justice has occurred, bias has occurred and an error of law has occurred, but you see ‑ ‑ ‑

HIS HONOUR:   What is the problem with your getting hold of the transcript?  I have, in other cases, seen those transcripts of proceedings before the Tribunal.  They are not secret.  What is the problem in your getting hold of the transcript?  Are you able to pay for the transcript?

MR HOLLAND:   Yes, we are able to pay for the transcript, sir.  We have applied for the transcripts on numerous occasions.  We have been ignored on it and I can only conclude, sir, that the transcripts have not been provided because I suspect that it is in the interests of the case of the Department of Immigration not to provide them.

HIS HONOUR:   Do I understand that you made an application under the Freedom of Information Act for the transcript?

MR HOLLAND:   That is correct, sir.

HIS HONOUR:   And what was the result of that application?

MR HOLLAND:   They cannot find them or they will not give them or – they responded and said they were looking for them and we have not heard anything more from them.

HIS HONOUR:   Perhaps I will just interrupt you to ask Mr Tsaknis if he knows the whereabouts of the transcript.  Just take your seat for a moment and I will just ask Mr Tsaknis what has happened.

Mr Tsaknis, as I understand it, there is nothing secret about these transcripts.

MR TSAKNIS:   No, there is not, your Honour.

HIS HONOUR:   I have, in fact, sat in cases where the transcript has been used to construct a case of breach of the rules of natural justice which, of course, is jurisdictional error which would allow the applicant to succeed.  So, I think if she wants the transcript, she should be able to get it and put it before me. 

MR TSAKNIS:   Yes, your Honour.

HIS HONOUR:   Do you have a copy of the transcript?

MR TSAKNIS:   I do not have a copy.  I have never seen a copy of the transcript, your Honour.  Sometimes what happens is that tapes are made available – or copies of tapes are available, but I am certainly familiar in these cases that routinely transcripts are annexed ‑ ‑ ‑

HIS HONOUR:   That is right.  Well, that is my impression too but if I have the applicant and her husband saying that they believe that the transcript would reveal breach of the rules of natural justice, bias and error, then, on the face of things, it is pretty hard for me to progress this matter without having access to the transcript.  I wonder if the Department would be able to get the transcript.  One would think that it would be somewhere in the Department’s files.

MR TSAKNIS:   Or one would have thought it ought to be – at least the tape would be available to make up a transcript if that has not been done already, yes, your Honour.  I do not know what has happened since this correspondence relating to the transcript has passed between the parties, whether, indeed, there is one waiting or not, but that is something which, I think, can be pursued.  I am not seeking to limit the application at this juncture but the way the application was originally phrased, that is, that simply no transcript was made available, I think, implied – did not really, I think, come to grips with the arguments which are now being made before your Honour and I think that perhaps puts in a different light the relevance of the transcript.  I think, initially, it was simply an objection to the transcript not being provided, not the reasons or any arguments that might flow from that.  It was much more general.  But having heard your Honour and having heard the applicant, it does seem to me, yes, that they certainly would advance – or would be necessary to finally determine this case to see whether the transcript discloses any arguable natural justice points.

HIS HONOUR:   I wonder if I could ask whether it would be possible for a search to be made in the Department and this matter stood over to a time later today to see if a copy of the transcript can be found.  Would that be possible?

MR TSAKNIS:   It would certainly at least enable your Honour to perhaps have a more definitive view on whether or not a transcript exits or not and how long it would take - - -

HIS HONOUR:   Exactly, yes.

MR TSAKNIS:   At least, to that level.  So, that would seem to me to be an appropriate course, your Honour, yes.  So, I would not see, certainly, any difficulties with that course from the respondent’s perspective.

HIS HONOUR:   Yes, very well.  Would 12.15 your time today, that is to say, 2.15 in Sydney, be sufficient time to allow a search to be made or would that not be enough time?

MR TSAKNIS:   Yes, your Honour, I have been told that would be enough time for inquiries to be made.

HIS HONOUR:   And is 12.15 convenient for you, Mr Tsaknis?

MR TSAKNIS:   Yes, it is, your Honour.

HIS HONOUR:   Yes, very well.  Well, I will just ask Mr Holland whether that is convenient to him and his wife.

MR HOLLAND:   Yes, sir, it is convenient.

HIS HONOUR:   Well now, I will therefore stand the matter over until 2.15 Sydney time, that is 12.15 Perth time, and in the meantime I would ask that the departmental officers look to see if there is a transcript and/or tapes of the record of the proceedings before the Immigration Review Tribunal and if there is a transcript then I would ask that that be made available to Mr and Mrs Holland by arrangement that you can make there in Perth to look at the transcript and then if you consider that there is some basis in the transcript, if it exists in written form, then that can perhaps be a foundation for further argument later today.  If the transcript is not available, then I can make further orders at 2.15 or proceed with the matter in default of the transcript if it is not possible to get a transcript.  Do you understand all that?

MR HOLLAND:   Yes.

HIS HONOUR:   Would you explain that to your wife?

MR HOLLAND:   Yes.

HIS HONOUR:   Very well.  Well, I will stand the matter over until 12.15 pm Perth time, Western Australian time, and that is at 2.15 pm Sydney time and we will proceed with the matter at that stage in the light of the availability of the transcripts or tapes of the proceedings between the Minister and the applicant in the Immigration Review Tribunal whose decision is dated 27 August 1998.  The Court will adjourn until 2.15 pm Sydney time.

AT 11.43 AM THE MATTER WAS ADJOURNED

UPON RESUMING AT 2.17 PM:

HIS HONOUR:   I resume the hearing of the proceedings from this morning.  What is the position, Mrs Holland, has the transcript been found or not?

MR TSAKNIS:   No, your Honour.  I can give you a brief rundown on the inquiries that we made to…..the position now appears to be.  The matter was investigated by a Mr Brendan Peace, who is a legal officer in the litigation department in Immigration, and he contacted a Mr Zagor who is the FOI delegate under the Migration Act and the FOI delegate indicated that he, in complying with the FOI request – that there were no tapes or transcript in the possession of the Department or, rather, no tapes in the possession of the Tribunal.  So that the position so far as the FOI officer, Mr Zagor believes is that there are, in effect, no tapes now to be found anywhere.

There may have been at some stage and likely to have been tapes made initially but his searches as the FOI delegate indicate there are no tapes and no transcripts made from those tapes which are in existence so far as the Tribunal is concerned.  That was the inquiry which was made of the Tribunal.

Inquiries were also made of the Department to determine whether it may have been provided with a copy of the tapes or a transcript that was subsequently made from the tapes and the response we have from the Department is that they have no records of ever having received the audio tapes or any transcript of the Tribunal hearing.  So, unfortunately – I mean there is always a theoretical possibility something may exist somewhere but according to the departmental officer and the Tribunal there is really, having inspected the file or the Tribunal’s file and not having any tape or transcript there, there is no apparent or obvious – or any other place, really, where the records might be kept where they remain any longer.

The difficulty appears to be twofold.  One, of course, is the delay since the tapes were actually made.  We are talking about a decision which was handed down, obviously, in 1998, and also the Immigration Review Tribunal was the original decision-making body and its functions were superceded by the Migration Review Tribunal which was formed and established shortly after the decision of the Immigration Review Tribunal.  So, from an administrative point of view, effectively all the records of the Immigration Tribunal, I have been instructed, one suspects were subject to considerable culling when that occurred.  But, as I said, the file has been located, the relevant Tribunal file at the time, and there is nothing on that file to indicate that if there were tapes, which appears likely, that they exist any longer or what has happened to them, nor is there any record or evidence of any transcript being made or held.

So, unfortunately, there is a practical difficulty given the lapse of time which has happened in being able to locate the tapes or any transcript, if, indeed, any transcript was ever subsequently made.

HIS HONOUR:   Yes, thank you very much.  That is a very full report.  Now, Mrs Holland or Mr Holland, do you accept the accuracy of what Mr Tsaknis has just told me?

MR HOLLAND:   Yes, I can accept the accuracy of what the respondent’s counsel has said but by the same token, sir, I would like to suggest that if I did a tax return three years ago and the Taxation Department’s investigation officers wanted to come along and I said to them, “Well, look, you know, I have destroyed all my documents”, they would not be very happy with that, sir.

HIS HONOUR:   No.  Well, I understand that comment but it does leave us in the position that there is no transcript apparently with which to prove the contentions of a breach of the rules of natural justice which you assert.  Now, of course, this is not the first time this problem has arisen.  It arises in many courts in different situations and there is legal authority which I feel bound to tell you because you are not represented that in such circumstances it is open to a party, doing the best they can with their memory, to prepare an affidavit in which they set out what they contend are the things that occurred that are not in a formal transcript but which they contend occurred and which give rise to the complaint which they wish to make before a court or tribunal.  That has happened from time to time when there is either no transcript at all kept or where there was a transcript but it has become lost. 

So, if you contend that there was something that happened before the Tribunal that vitiates the decision of Ms Bannerman and the Tribunal and that entitles you to require that the Tribunal reconsider their decision, then

you would have an opportunity in the light of what I have just been told from the Department, to prepare an affidavit in which you set out what you said – what you say occurred in the Tribunal.  It would have to be an affidavit sworn by a person who was present in the Tribunal at the relevant time and deposing to the best of their recollection what happened and the person who makes that declaration would be subject to cross‑examination and the elucidation of the facts in the best possible way that is now available, given that there is no possibility, apparently, of having the transcript of the formal proceedings.  Do you wish to take advantage of that possibility by having an affidavit prepared or not?

MR HOLLAND:   Yes, please, sir.

HIS HONOUR:   What is the nature of your complaint about the conduct of Ms Bannerman, apart from the irrelevant matter which you referred to earlier today concerning her dress?

MR HOLLAND:   I believe that what actually occurred at the meeting and what was said at the meeting and the manner in which the meeting was conducted was completely different to the report that the chairperson had made as the chairperson of the Immigration Review Tribunal, sir.

HIS HONOUR:   Well, would you be able to prepare an affidavit which set out the detail of exactly what you say and what your wife says happened before the Tribunal and then swear that affidavit by early next week and supply it to the Department and place that affidavit before the Court in support of your application for the constitutional writ of prohibition? 
Would you be willing to do that?

MR HOLLAND:   Yes, sir.  Thank you for the opportunity.

HIS HONOUR:   As it happens, the High Court will be in Perth next week and it will be possible for this matter to be listed at the end of the Court list on Thursday of next week.  Would that be a day that was convenient to you and your wife?

MR HOLLAND:   Yes, sir.

HIS HONOUR:   Well, I will just ask Mr Tsaknis if that day would be convenient to him.

MR TSAKNIS:   Yes, your Honour.  I have other matters in the High Court list.  So I assume if it is at the end ‑ ‑ ‑

HIS HONOUR:   Yes, it will be at the very end of the special leaves.  I understand that two matters in which the Department was involved have

been withdrawn.  You may not know of those but my understanding is that those cases are coming out of the list and that ‑ ‑ ‑

MR TSAKNIS:   I was not aware of that, your Honour, but I am available on the 25th.

HIS HONOUR:   I am sorry if I have given you bad news but my understanding is that there were two appeals involving the Department which have been withdrawn, apparently because of supervening legislation which deals with the issue.  But whether that is so or not, my understanding is that the special leave hearings will begin on the Thursday and conclude on the Thursday and I would therefore be minded to list this matter not before noon on the Thursday but with the real possibility that it would not be reached until some time in the afternoon of Thursday.  Is that convenient to you?

MR TSAKNIS:   Yes, it is, your Honour, it is convenient.

HIS HONOUR:   Well, the orders which I will make – and I only take this course because the applicant is unrepresented by a lawyer and I feel duty bound to give as much help as is proper to the applicant in the circumstances – are:

1.   Adjourn the further hearing of this application for an order nisi until Thursday, 25 October 2001, in Perth.  The case to be heard immediately following the completion of the special leave list in which I am involved on that day.

2.   Direct that any affidavit which the applicant wishes to file in further support of her application be filed and served on the respondent by 4 pm on Monday, 22 October 2001.

3.   Direct that any affidavit of the respondent be filed and served on the applicant by 4 pm on Wednesday, 24 October 2001.  I will ask both sides, in the light of the affidavits, to file short written submissions which state their positions in the hope that on Thursday, 25 October this matter can come to conclusion.

4.   The costs of the proceedings in the Court today will be costs in the application.

5.   I certify for the attendance of counsel in chambers.

Are there any other orders that you want me to make, Mrs Holland?

MRS HOLLAND:   Your Honour, do I have to get all the other people that represent me on the RRT in 1998 to file an affidavit too?

HIS HONOUR:   Well, if there is anyone who was present in the RRT hearing with you that can depose to what you say are your complaints about the fairness of the conduct of the Migration Review Tribunal, given that we do not have a transcript, then you should prepare and file affidavits by them  so that the best position can be ascertained which we have to reconstruct without the benefit of the transcript.  Do you understand that?

MRS HOLLAND:   Yes, your Honour.

HIS HONOUR:   So, if there are other witnesses who were present, for example, your husband may have been present during part of the hearing or all of the hearing, then an affidavit deposing to their recollection – I do not think it would be necessary for you to file an affidavit about all the detail of what happened but deposing to those matters which you contend demonstrate a want of fairness in the procedures which were followed in relation to your hearing.  So that such affidavit should be filed and it would be a precaution that anybody who prepares an affidavit and swears it and where that affidavit is filed by Monday, 22 October, is available at the courthouse on Thursday, 25 October in order to be cross‑examined if that is what the respondent wishes. 

MRS HOLLAND:   Thank you, your Honour.

HIS HONOUR:   Do you understand all of that?

MRS HOLLAND:   Yes, your Honour.  Thank you.

HIS HONOUR:   Do you understand that, Mr Holland?

MR HOLLAND:   Yes, sir.

HIS HONOUR:   Yes, very well.  Well, I will take the case after we finish the special leave hearing on the following Thursday, that is Thursday, 25 October.  Mr Tsaknis, are you content with those orders?  Is there anything else that you want?

MR TSAKNIS:   Yes.  No, we do not seek any additional orders, your Honour.

HIS HONOUR:   Very well.  Well, I will therefore adjourn the Court and this matter will be continued on Thursday, 25 October.  But both parties must be in a position on that day to proceed with the evidence that they wish to call and with the argument which they wish to make on the basis that it would be my intention, if at all possible, to conclude the hearing on that day because we cannot just keep coming backwards and forwards.  It costs money; takes time and it is desirable that the matter be brought to conclusion.

The Court will now adjourn.

AT 2.32 PM THE MATTER WAS ADJOURNED
UNTIL THURSDAY, 25 OCTOBER 2001