Kumar, Ex parte- Re Min for Immig & Multicultural Affairs

[1997] HCATrans 398

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S117 of 1997

In the matter of -

An application for Writs of Prohibition and Mandamus directed to THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS OF THE COMMONWEALTH OF AUSTRALIA

First Respondent

MARK THOENER

Second Respondent

Ex parte -

AJAY KUMAR

Prosecutor

GUMMOW J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 25 NOVEMBER 1997, AT 9.28 AM

Copyright in the High Court of Australia

MR M.A. ROBINSON:   If the Court pleases, I appear for the prosecutor in this matter.  (instructed by Barlow and Company)

MR G.T. JOHNSON:   May it please your Honour, I appear for the defendants.  (instructed by the Australian Government Solicitor)

HIS HONOUR:   Mr Robinson.

MR ROBINSON:   Your Honour, there have been some discussions between the parties last night and I understand my learned friend has certain instructions which has caused him to seek further time to consider the Minister’s response to the application.  Even though the Minister is not yet formally a party to the proceedings and does not have a formal appearance in the matter, we are minded to - I am instructed to provide them, if we can, an opportunity to consider the prosecutor’s claim and allow them more time ‑ ‑ ‑

HIS HONOUR:   It would be foolish not to, I would have thought.  Now, why is the second respondent joined?

MR ROBINSON:   Your Honour, it is simply the second respondent is the actual decision maker.

HIS HONOUR:   No, he is not.  He is the delegate of the Minister.

MR ROBINSON:   Your Honour, we have no proof of that as yet.

HIS HONOUR:   The only relevant respondent is the Minister.  Is that not right, Mr Johnson?

MR JOHNSON:   We are content for that, your Honour, yes.

HIS HONOUR:   Now, is this the correct title of the present portfolio, Immigration and Multicultural Affairs?

MR JOHNSON:   That is right, your Honour.

HIS HONOUR:   On what footing is your client in the country at the moment?

MR ROBINSON:   Your Honour, he is here on a student visa.  He has a current bridging visa which will entitle him to stay for - we are having difficulty getting instructions on the precise date, but he can certainly stay for a few months.  In any event, your Honour, were the matter to go over for a short time to permit the Minister to consider his position, a bridging visa, in our submission, ought to be able to be issued to the applicant to permit him to stay while the High Court determines the matter.

HIS HONOUR:   That by no means necessarily follows.  Your client applied - was it in Singapore or in New Delhi?  I could not quite ‑ ‑ ‑

MR ROBINSON:   In Singapore, your Honour.

HIS HONOUR:   But there was a response from New Delhi, was there not?

MR ROBINSON:   There was information sought from the New Delhi office in relation to his student visa.  That information was considered by Singapore.

HIS HONOUR:   I see, yes.

MR ROBINSON:   In terms of some housekeeping matters, your Honour, two things:  I have an unfaxed copy of the proposed amendments to the grounds of judicial review, the additions, rather than amendments.  Secondly, your Honour, I have ‑ ‑ ‑

HIS HONOUR:   You talk about grounds of judicial review.  You are seeking mandamus and prohibition, are you not?

MR ROBINSON:   Yes, your Honour.

HIS HONOUR:   Under section 75(v)?

MR ROBINSON:   That is correct, your Honour.  There is also a page that is missing from one of the exhibits, a rather significant page.  That is the primary application.  Your Honour will see that the words “carpet manufacturer” are also listed there, in addition to the position, the usual occupation of journalist.

HIS HONOUR:   Yes, I see.  Have you seen this, Mr Johnson?

MR JOHNSON:   Yes, I have, your Honour.  There is no objection to the Court receiving it.

HIS HONOUR:   What should I do?  Is this part of JCF 1?

MR ROBINSON:   Yes, it is, your Honour.  It is question No 32.  It is a photocopying error, your Honour.  I apologise.

HIS HONOUR:   Yes, I see.  I will add the sheet containing questions 32 to 35 to JCF 1 to Mr Froissard’s affidavit of 25 October.

Now, these proposed amendments, how do you get 2A?

MR ROBINSON:   Your Honour, 2A is an extension of ground 2 in that it is simply further particulars, as it were, of the no evidence ground.

HIS HONOUR:   Why is that a ground of getting prohibition?

MR ROBINSON:   We say it goes to jurisdictional error in the broad sense, as the Court considered in Craig v South Australia.  It is an executive decision maker that has made the decision, so we would submit that the full grounds of review are available in seeking the prerogative relief.  Your Honour, 5 and 6, we do not say that they are terribly significant grounds or terribly strong grounds, but the proposed grounds are there in case the matter finds its way, unhappily we would say, to the Federal Court.  The principal grounds, in my submission, are the natural justice and the irrelevant consideration grounds.  The no evidence and the errors or law grounds, we would say, are not very strong and would depend on ‑ ‑ ‑

HIS HONOUR:   What you really need to do between now and the adjourned date, I think, is to file an amended JCF 5.

MR ROBINSON:   Could we have your Honour’s leave to do that?

HIS HONOUR:   Yes, in so far as you need it.  That should remove the second respondent and simply have the Minister as the respondent, and add these grounds, if that is what you wish to do.

MR ROBINSON:   If the Court pleases.

HIS HONOUR:   How soon can that be done?

MR ROBINSON:   That can be done within two days, your Honour.

HIS HONOUR:   All right.  Now, what are the time parameters of getting this filed?

MR JOHNSON:   Your Honour, as far as the prosecutor’s immigration status is concerned, it is our understanding that he currently has a refugee application as well which has been adversely determined to him.  The matter is the subject of a review proceeding.  He would, I am instructed, be entitled to a bridging visa in connection with that.  He would also be entitled to a bridging visa in connection with the existing proceedings.  So even if the present bridging visa does expire - and we are not sure, your Honour, just exactly when the existing visa is due to expire - there is nothing about his status or irregularity or no concern about his status or irregularity which would, I would have thought, prevent your Honour from adjourning the matter for a period, if your Honour agreed that that was appropriate.

The reason why my friend and I, in our discussions, have thought that it might be appropriate for the matter to be adjourned - and the suggestion really comes from the respondents’ camp, your Honour - is that this particular application is one in which the Department has effectively informed itself, from my friend’s affidavit, there are allegations or contentions made by the applicant, some of which might benefit from examination of what did go on overseas and, your Honour, the Department feels that to get the papers in from Delhi and to get in any papers from Singapore that there may be there is likely to take about three weeks, by the time those papers are first located and then sent here and then properly considered.  It just seemed to us, given that my friend will be strenuously arguing to your Honour that the case should stay here, rather than being remitted to the Federal Court, that it might be appropriate ‑ ‑ ‑

HIS HONOUR:   It will go to the Federal Court if I have jurisdiction to send it there.  The sooner the profession gets that message, the better.

MR JOHNSON:   Yes.

HIS HONOUR:   And in so far as part of it stays here, part of it will stay here.  But in so far as part of it goes, it will go.

MR JOHNSON:   Your Honour, I would not expect instructions to oppose that, but what I am suggesting to your Honour - or if I could perhaps come to the point, is that rather than the matter automatically proceeding at this stage to any such direction being made, with the result that activity might then have to be taken in the Federal Court, it might be best for the respondent to have a period of a month or so to decide whether the respondent truly wishes to contest the application substantively.

HIS HONOUR:   Yes, I understand that.  But that brings us into vacation, that is the problem.

MR JOHNSON:   It does.  Your Honour, on my instructions, there would be no difficulty - and this, of course, is entirely subject to your Honour’s convenience - there would be no difficulty if the matter went over until, say, the end of January or the end of February.

MR ROBINSON:   We are happy with that, your Honour.

HIS HONOUR:   Are you happy with that?  I was going to suggest Tuesday, 27 January?

MR JOHNSON:   That would certainly be suitable for us, your Honour.

MR ROBINSON:   That is suitable, your Honour.

MR JOHNSON:   Thank you, your Honour.

MR ROBINSON:   Could the question of costs for today be reserved?

MR JOHNSON:   Yes, your Honour.

HIS HONOUR:   Yes.

I direct that any further draft order nisi omitting the second respondent and adding the grounds contained in the applicant’s solicitor’s fax to the Registrar of 24 November be filed and served on or before 28 November.

I stand the matter over to Tuesday, 27 January 1998, at 9.30 am before me.

Costs reserved.

Is there anything else?

MR ROBINSON:   No, your Honour.

MR JOHNSON:   No, your Honour.

HIS HONOUR:   Thank you, gentlemen.  I will now adjourn.

AT 9.40 AM THE MATTER WAS ADJOURNED
UNTIL TUESDAY, 28 JANUARY 1998