Kural v The Queen

[1998] HCA 16

HIGH COURT OF AUSTRALIA

GUMMOW J

An application for Writs of Certiorari, Prohibition,

Mandamus and Habeas Corpus and injunctions against

THE MINISTER FOR IMMIGRATION AND

MULTICULTURAL AFFAIRS  FIRST RESPONDENT

AND

LUKE HARDY (constituting the Refugee

Review Tribunal)  SECOND RESPONDENT

Ex Parte SENIET ABEBE  PROSECUTOR

Ex Parte Abebe (S139-1997) [1998] HCA 16
Date of Order: 28 January 1998
Reasons for Judgment Delivered:  28 January 1998

ORDER

1. The Court accepts the undertaking given to the Court by counsel for the first respondent that until the determination of the matter, or earlier further order, the first respondent, his servants and agents, will not remove the prosecutor from Australia without first having given 72 hours notice in writing to the prosecutor or her solicitors.

1. Direct that the application for prerogative relief under s 75(v) of the Constitution be, pursuant to O 55 r 2, made by notice of motion to a Full Court.

1. Any further affidavits for the prosecutor be filed and served on or before 27 February 1998.  Any further affidavits for the first respondent be filed and served on or before 27 March and any affidavits in reply be filed and served by the prosecutor on or before 17 April.

1. Liberty to apply on seven days written notice.

2.

1. Certify for counsel.

1. Costs of the proceeding on 24 December 1997 and of today be costs in the cause.

Representation:

J M Gersten for the prosecutor (instructed by Alex Lee)

G T Johnson for the first respondent (instructed by the Australian Government Solicitor)

Notice:  This copy of the Court’s Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Ex Parte Abebe

High Court – Practice – Judicial review – Rejection of claim of refugee status – Conduct of proceeding – Refusal to grant order nisi – Referral of application to Full Court under O 55 r 2.

High Court Rules, O 55 r 2.

1. GUMMOW J. On 18 March 1997, the prosecutor made an application for a protection visa as provided in s 36 of the Migration Act 1958 (Cth) ("the Act") and subclass 866 in Sched 2 of the Migration Regulations. The application was made on the footing that the prosecutor was a non-citizen in Australia to whom this country has protection obligations under the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 as amended by the Protocol relating to the Status of Refugees done at New York on 31 January 1967 ("the Convention"). The application was refused on 21 June 1997. The prosecutor then applied for a review of the decision by the Refugee Review Tribunal ("the Tribunal"). That body, in written reasons given on 3 September 1997, held it was satisfied that the application for review was valid and that it had jurisdiction to review the decision. However, having considered the evidence, the Tribunal determined that the prosecutor is not a person to whom Australia has protection obligations under the Convention. It followed that she…