Metohu, Zanaj, Ex parte - Re Min for Immig

[1999] HCATrans 414

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 MONDAY, 22 NOVEMBER 1999, AT 10.19 AM

(Continued from 22/11/99)

Copyright in the High Court of Australia

_________________

MR A.M. FLOWER:   If your Honour pleases, I appear for the prosecutor in these matters.  (instructed by Basil Nuredini)

MR R.R.S. TRACEY, QC:   If your Honour pleases, I appear for the first‑named respondent in each of those two matters.  (instructed by the Australian Government Solicitor)

HIS HONOUR:   Now, Mr Flower, I do not think you have – or have you seen the form of order I had been toying with or not?  No, that has been ‑ ‑ ‑

MR FLOWER:   Yes, I have, your Honour.

HIS HONOUR:   You have.  I thought I had kept it a deep, dark secret from you until now so that you would have to think on your feet.

MR FLOWER:   Well, I am not quite thinking on my feet.  There is a point I would wish to make.

HIS HONOUR:   Yes.

MR FLOWER:   In relation to – excuse me, I am just struggling with section 44 of the Judiciary Act.

HIS HONOUR:   Yes.

MR FLOWER:   In relation to this proceeding, this stands in a slightly different light to the other decisions which seek review of an RRT decision and it is conceded by the prosecutor that, absent anything else, most of the grounds that it seeks to agitate would otherwise be proper grounds for remittal to the Federal Court.

HIS HONOUR:   Yes.

MR FLOWER:   The complication that arises arises under section 478 of the Migration Act.  Section 478(1)(b) provides a time limit for the filing of a review from the Refugee Review Tribunal.

HIS HONOUR:   Yes, it does and you are out of time for that.

MR FLOWER:   Yes, we are and ‑ ‑ ‑

HIS HONOUR:   But does that then mean, if I remit under 44 that 485(3) bites on the time limit?

MR TRACEY:   Your Honour, before my friend answers could I just indicate, because I am going to have to seek your Honour’s leave to withdraw within about 60 seconds.

HIS HONOUR:   Yes.

MR TRACEY:   Your Honour, we would not be taking that point in the Federal Court.  We would have thought that if it is remitted under 44 then a procedural matter such as raised by 480 would not stand in the way.  It is subject matter and persons and if they are present then the Federal Court can deal with it on remitter.

HIS HONOUR:   That was my first impression, Mr Tracey.  First impressions are sometimes wrong, often wrong in my case, but first impression was that the time limit did not bite on a remitter from this Court.

MR TRACEY:   No, your Honour.

HIS HONOUR:   Yes.

MR TRACEY:   And as to the cases, we would ask for the same opportunity to consider your Honour’s orders in relation to them until tomorrow morning.

HIS HONOUR:   Yes, yes.  Now, you have got to be elsewhere, have you, Mr Tracey?

MR TRACEY:   If I may, your Honour.  My instructor ‑ ‑ ‑

HIS HONOUR:   Mr Flower, in light of that, is there any reason not to stand it over until tomorrow so that Mr Tracey can tell me the position?

MR FLOWER:   No, your Honour, no.

HIS HONOUR:   If we get past the time limit problem ‑ ‑ ‑

MR FLOWER:   Yes, if the point is not going to be taken on me, then I have no objection to it.

HIS HONOUR:   Yes.

MR FLOWER:   That is purely the reason why we are here because I had taken ‑ ‑ ‑

HIS HONOUR:   Yes, you have got a time limit problem.

MR FLOWER:   ‑ ‑ ‑ I had taken the view that it was fatal to a Federal Court application.

HIS HONOUR:   Yes.  Now, again, I would be glad if tomorrow morning, Mr Flower, you could have given close attention to the form of order.  I do not pretend that it is a model of drafting or clarity but I hope the intention that I have in mind is now fairly clear to you.

MR FLOWER:   Yes, your Honour, it is.

HIS HONOUR:   Yes.  Well, is 9.30 tomorrow, Mr Flower, convenient to you?

MR FLOWER:   Yes, it is, your Honour.

HIS HONOUR:   Yes.  Well, I will stand these two matters over until 9.30, again, reserving the costs.

MR FLOWER:   I am sorry, your Honour, the second one is different.

HIS HONOUR:   Metohu is different?

MR FLOWER:   Metohu is an entirely different animal.

HIS HONOUR:   Sorry.

MR FLOWER:   Metohu is a review from the decision of the delegate, so that may come into the second category of cases that your Honour mentioned earlier, standing them out of the list for a time.

HIS HONOUR:   Yes.  Well, I would be glad if counsel would give some attention, and particularly for the Minister it would be of assistance if those representing the Minister could give attention to whether in their view the bundle of cases now pending in Sydney that Justice Gaudron has dealt with

are in truth cases that are going likely to affect these delegate cases.  It seemed to me they might but my knowledge of them is pretty well incomplete.  So, again, it may be of assistance if those appearing for the Minister gave some attention to that, but for the moment my inclination is stand Metohu out of the list generally but perhaps, again, we can mention it tomorrow morning at 9.30, Mr Flower.

MR FLOWER:   If your Honour pleases.

HIS HONOUR:   You will be here.

MR FLOWER:   Yes.

HIS HONOUR:   Thank you, Mr Flower.

AT 10.24 AM THE MATTER WAS ADJOURNED
UNTIL TUESDAY, 23 NOVEMBER 1999