Metohu & Anor, Ex parte - Re Min for Immig

[1999] HCATrans 419

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M40 of 1999

In the matter of –

An application for Writ of Mandamus against THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

Ex parte –

ULIKS METOHU and MANJOLA METOHU

Prosecutors

Office of the Registry
  Melbourne  No M18 of 1999

In the matter of –

An application for Writ of Mandamus against THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

Ex parte –

ALKETA ZANAJ

Prosecutor

HAYNE J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON TUESDAY, 23 NOVEMBER 1999, AT 10.40 AM

(Continued from 22/11/99)

Copyright in the High Court of Australia

_________________

HIS HONOUR:   Now, Mr Flower?

MR FLOWER:   Your Honour, can I deal with Metohu first?

HIS HONOUR:   Yes.

MR FLOWER:   That is in the same category of case as Devashayam.  So, your Honour would make an identical order in that matter.

HIS HONOUR:   Namely, to - - -

MR FLOWER:   To adjourn to a date to be fixed on not less than three clear days notice in writing to the other parties; liberty to apply; reserve costs; certify, et cetera.

HIS HONOUR:   Yes.

MR FLOWER:   In relation to the matter of Zanaj, we would seek an order in identical terms to the main body of cases that your Honour has already made orders for.

HIS HONOUR:   Yes.  Then in Metohu, if I deal with it first, and then we will come to the actual framing of the order in Zanaj. 

But in Metohu, which is matter No M40 of 1999:

(1)  Application adjourned to a date to be fixed on not less than 3 clear days notice in writing to other parties.

(2)  Reserve liberty to apply generally.

(4)  Reserve costs.

(5)  Certify for counsel.

Now, in Zanaj, what are the grounds that raise the relevant issues?

MR FLOWER:   There is a draft order nisi, your Honour, and there are three grounds.  The first two relate to grounds which are capable of remitter.  The third one is a Wednesbury unreasonableness ground which cannot be remitted.

HIS HONOUR:   Yes.  Then grounds 1 and 2.  So, the orders in Zanaj would be:

(1)  Grant order nisi on grounds numbered 1 and 2 in the draft order nisi filed herein.

(2)  Remit to the Federal Court of Australia that part of the matter pending in this Court in which the applicant seeks a writ of mandamus prohibition or certiorari or an injunction against an officer of the Commonwealth on the grounds that:

(a)  the Refugee Review Tribunal failed to observe the procedures that were required by the Migration Act 1958 (Cth) (“the Act”) or the regulations under the Act to be observed by the Tribunal in connection with the making of the decision challenged in these proceedings;

(b)  the Tribunal did not have jurisdiction to make the decision it did;

(c) the Tribunal’s decision was not authorised by the Act or the regulations under the Act;

(d)  the Tribunal’s decision involved an error of law, being an error involving an incorrect application of the applicable law or an incorrect application of the law to the facts as found by the person who made the decision, whether or not the error appears on the record of the decision.

(3)  Further proceedings in the part of the matter that is remitted to the Federal Court of Australia to be as directed by that Court.

(4)  Costs of the part of the matter that is remitted to the Federal Court of Australia (including the costs of the application to the date of this order) to be reserved to that Court.

(5)  Otherwise adjourn application for order nisi to a date to be fixed on not less than three clear days notice in writing to the parties.

(6)  Certify for Counsel.

Now, do you have any comment on those orders, Mr Flower?

MR FLOWER:   I consider those orders completely appropriate, if your Honour pleases.

HIS HONOUR:   Yes.  Mr Tracey, do you have any comment on those orders?

MR TRACEY:   No, thank you, your Honour.

HIS HONOUR:   Thank you, Mr Tracey.  Thank you, Mr Flower.

AT 10.45 AM THE MATTER WAS ADJOURNED