Jansz and Ors, Ex parte MIMA and Ors

[2001] HCATrans 395

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry         
  Melbourne  No M85 of 2000

In the matter of -

An application for writ of a writ of Prohibition against THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Respondent

PETER NYGH (in his capacity as Principal Member of the Refugee Review Tribunal)

Second Respondent

PETER H. MOLONY (in his capacity as a Member of the Refugee Review Tribunal

Third Respondent

Ex parte –

JAN RALSTON JANSZ, RUSSEL MAXWELL JANSZ and BRIAN MAXWELL JANSZ

Prosecutors

Office of the Registry         
  Melbourne  No M125 of 2000

In the matter of -

An application for Writs of Certiorari and/or Mandamus and/or Prohibition or an Injunction against THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Respondent

B.F. KISSANE constituting the Refugee Review Tribunal

Second Respondent

Ex parte –

ANN NIROSHINI DISSANAYAKE

Applicant/Prosecutor

Office of the Registry         
  Melbourne  No M38 of 2001

In the matter of -

An application for Writs of Certiorari and/or Mandamus and/or Prohibition or an Injunction against THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Respondent

JULIE GOULD constituting the Refugee Review Tribunal

Second Respondent

Ex parte –

NOYALINE THAMARIE MEADOWS and GNANAM MEADOWS

Applicants/Prosecutors

Office of the Registry         
  Melbourne  No M49 of 2001

In the matter of -

An application for Writs of Certiorari and/or Mandamus and/or Prohibition or an Injunction against THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Respondent

GILES SHORT constituting the Refugee Review Tribunal

Second Respondent

Ex parte –

AVRILLE ELAIN RUHUNUHEWA, ASHANTHI SHENIKA RUHUNUHEWA, SARAH AMANDA RUHUNUHEWA and JULIAN NEIL RUHUNUHEWA

Applicants/Prosecutors

Office of the Registry         
  Melbourne  No M78 of 2001

In the matter of -

An application for Writs of Certiorari and/or Mandamus and/or Prohibition or an Injunction against THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Respondent

MR JOHN VRACHNAS constituting the Refugee Review Tribunal

Second Respondent

Ex parte –

ASHAN PIO JAMES

Applicant/Prosecutor

HAYNE J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 19 OCTOBER 2001, AT 9.32 AM

Copyright in the High Court of Australia

_________________

MR A.F.L. KROHN:  May it please the Court, I appear for the prosecutors in those matters.  (instructed by Ravi James & Associates)

MR A.L. CAVANOUGH, QC:   If your Honour pleases, I appear on behalf of the respondents in each matter, although I imagine that save for the Minister, the Tribunal will be putting in submitting appearances.  (instructed by the Australian Government Solicitor)

HIS HONOUR:   Yes, thank you, Mr Cavanough.  What I have to say is said to both parties, so you may sit down, Mr Cavanough.  Although the parties submitted consent orders in these matters, I thought it better to call them on for hearing to make one

point.  It is a matter for the parties to consider whether any of the amendments made to the migration legislation in October this year has any operation in respect of any of these proceedings.  I express no view about whether it does.

The making of consent orders in the form proposed by the parties is not to be understood as the Court expressing any view on the question I have identified.  Especially is that so where, to take an example and no more than an example, the legislation makes provision with respect to proceedings brought in the interests of more than one person as may perhaps be the case in one or more of these matters. 

Now, I do not expect and I do not invite debate on these issues this morning.  If the parties wish me to give the directions that they have submitted I will do so, but the issues I have raised and the steps, if any, that are to be taken in consequence are entirely for the parties.  I should emphasis that neither party should attempt to read the tea leaves and determine whether my saying what I have said is to be accorded some particular significance.  If they see significance in it, that will be for them because I intend none by it except that making consent orders is not to be taken as some implicit expression of view.

Now, all that having been said, as I say, I do not expect or, for that matter for my part, invite any debate about the issue.  Do the parties wish me to make the consent orders that have been submitted?  Mr Cavanough.

MR CAVANOUGH:   Your Honour, in the limited time I have had to look over these numerous matters, it struck me that the actual terms of the orders drafted could be improved and that is something that perhaps my learned friend and I could talk about.  I note there is no expectation or invitation in relation to the matters your Honour has spoken about but, again, in this limited time, it has not escaped my notice that there is a potential problem in relation to 485B.  I have sought instructions as to whether there are any  regulations under that section.

HIS HONOUR:   I understand there may be.

MR CAVANOUGH:   Yes.  At the moment I am unable to obtain an answer to that and it may be significant whether they were in force on the relevant day, et cetera.

HIS HONOUR:   There is a whole raft of issues that may or may not arise. 

MR CAVANOUGH:    Yes.

HIS HONOUR:   You will understand my concern that simply doing it on the papers might have been wrongly, I would say, taken by one or other party as some expression of view.

MR CAVANOUGH:   Yes, or even some acceptance of jurisdiction or whatever, and I fully appreciate that, your Honour.  For our part, we are grateful for your Honour’s observations.  Just because I am concerned about the wording of the draft that went up and perhaps the necessity to add some things such as liberty to apply and certificates for counsel now that the matters are coming on here and just – there are references to the parties that are inappropriate as well that I would just like to tidy up.

HIS HONOUR:   By all means.  As for certifying for counsel, I would certify for the attendance of counsel today.

MR CAVANOUGH:   That is all I meant, your Honour, yes.

HIS HONOUR:   Yes.  As for liberty to apply, yes, either party may bring any of these matters on, on reasonable notice to the opposite party.  I would be content to leave it with no formal order but an understanding that the parties would give attention to the form of directions that is to be made and if they could submit those to the Registrar promptly, then orders will be made on the papers in the light of what has now been said.

MR CAVANOUGH:   If your Honour pleases.  That is very satisfactory.

HIS HONOUR:   Yes, thank you, Mr Cavanough.  Mr Krohn, is there anything you want to add?

MR KROHN:   No, your Honour.  With respect, I am grateful for your Honour’s observations and I would respectfully agree with my learned friend on that matter.  May it please the Court.

HIS HONOUR:   Yes.  Then other than to certify for counsel, there is, I think, no need to make any further order, except to adjourn.

AT 9.40 AM THE MATTERS WERE CONCLUDED