Miah, Ex parte - Re Min for Immig

[1999] HCATrans 421

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S199 of 1999

In the matter of –

An application for Writs of Prohibition, Certiorari and Mandamus against THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS OF THE COMMONWEALTH OF AUSTRALIA

First Respondent

RAUL MENDOZA in his capacity as a delegate of the MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS OF THE COMMONWEALTH OF AUSTRALIA

Second Respondent

Ex parte –

MD ATAUL HAQUE MIAH

Prosecutor

McHUGH J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 26 NOVEMBER 1999, AT 10.00 AM

Copyright in the High Court of Australia

MR J. BASTEN, QC:   I appear with MR D.H. GODWIN, for the prosecutor, your Honour.  (instructed by Ron Kessels)

MR P. ROBERTS, SC:   I appear for the respondent, your Honour.  (instructed by the Australian Government Solicitor)

HIS HONOUR:   Mr Basten.

MR BASTEN:   Your Honour, the matter comes before your Honour for the first time.  There are the affidavits in the usual form.  There are three possible courses which are open.  Obviously your Honour could simply grant the order.  Your Honour could, as we have suggested, remit the matter to the Federal Court or your Honour could adjourn the application.  Why I say it in that order is because, although we were content to have the matter remitted, there is a live issue as to the power of the Federal Court in these matters.  There was a matter of A v The Minister in Melbourne which I can give your Honour a copy of part of.  Perhaps I can just indicate what the issue is.  A was remitted by Justice Hayne to the Federal Court in similar circumstances, a non-judicially reviewable ‑ ‑ ‑

HIS HONOUR:   Can I interrupt you.  Is it whether or not, under the prohibition jurisdiction, a simple error of law can be remitted?

MR BASTEN:   No.  It is a question about whether the Federal Court has any jurisdiction if it were remitted, given the operation of 485 of the Migration Act.

HIS HONOUR:   I take the view that there is an arguable question as to whether an error of law which would be reviewable under 476 of the Act is a matter that really does fall within this Court's 75(v) jurisdiction.

MR BASTEN:   I understand that point, your Honour.  This, of course, is not a 476 case because it is not a judicially reviewable decision.

HIS HONOUR:   Yes, I know.

MR BASTEN:   In which case the powers of any court are presumably the powers in relation to prerogative relief generally.

HIS HONOUR:   But, Mr Basten, there is a two-year - over two years, two years five months delay in this particular case and the argument on the question of law does not seem to me the strongest argument.  The argument on natural justice may have more strength if the allegation in the prosecutor's solicitor's affidavit is correct.  My inclination is, having read the papers, to keep the matter in this Court for hearing and have the matter

brought on quickly and I think your client needs to put on some material to explain the various delays.  In addition, I think a question that needs to be addressed is this:  if you had come up here immediately after the decision had been made, in the exercise of discretion the Court would have sent you packing because you had a right of review.  That right of review not having been taken, can you be in a better position than if you had made an application within time?  There are cases and cases, and there may be cases where there are a lot of issues that can be determined by the Federal Court, but here, if you have any case, it seems to me to be the natural justice case and I think you need some evidence about that as well.

MR BASTEN:   Yes, we do, your Honour.  We are seeking that evidence at the moment.

HIS HONOUR:   They are my initial views, having read all the papers in the matter.

MR BASTEN:   Your Honour, we accept that to take a different view would be to split presumably the arguments and there are difficulties with that.  We obviously do not wish to be in this Court because of other reasons, but it probably is a matter which ‑ ‑ ‑

HIS HONOUR:   It is just an indication of the terrible burden that is going to be imposed on this Court by reason of this legislation.  Judges of this Court are going to be turned into trial judges on natural justice points.

MR BASTEN:   Yes.  I appreciate that.  But if your Honour is of that view, we may take a view which we would seek to persuade your Honour or the Court of at another date, that the second point is a stronger one than your Honour is indicating but that to one side, we are really in your Honour's hands and we would be content with that course.

HIS HONOUR:   Yes.  What do you say, Mr Roberts.

MR ROBERTS:   Your Honour, I have prepared a very short submission a page long.  The first point we say there is no power to remit and, secondly, we say that there are no merits in this case, aside from the matters that your Honour alluded to, because of the delay and because of the failure to pursue the appellate rights.  The only matter which we may differ from your Honour is in relation to whether hearing this matter again, or allowing the prosecutor to put some more evidence on, will change the position or whether the case is such a bad one that your Honour would not, or could not, dismiss the matter at this stage.

HIS HONOUR:   I think that might be a bit premature, for a number of reasons.  I think the prosecutor is entitled to get its house in order.

MR ROBERTS:   It is a matter for your Honour.

HIS HONOUR:   However, given the delay in this case, the application for a visa was refused either on 13 or 14 May 1997, I think it is necessary that the matter proceed expeditiously. 

Mr Basten, I think you will have to be prepared to move fairly quickly in this matter.  Too much delay has taken place.

MR BASTEN:   I appreciate the delay is a problem, your Honour.

HIS HONOUR:   I see no reason why you cannot have your house in order within 14 days.  Have you any ‑ ‑ ‑

MR BASTEN:   I think that is right, your Honour.  There are two documents in particular which we seek to rely upon in relation to the natural justice point.  One we have requested under freedom of information some time ago and still do not have.  It may be that as a result of these proceedings we can get them by way of informal discovery, in which case we can put that material on.

HIS HONOUR:   Mr Roberts, can you facilitate?  It is in your interest to have this matter dealt with.

MR ROBERTS:   Yes.  I am not sure what the document is.

MR BASTEN:   It is on the file.

MR ROBERTS:   I am sure if it possible to hand it over, it will be, your Honour.

HIS HONOUR:   I direct the prosecutor to file all material relied on in support of its application within 14 days of today's date.  Mr Roberts, you may want to file some evidence in reply.

MR ROBERTS:   It is possible, yes, your Honour.

HIS HONOUR:   I think seven days should be sufficient, given your resources, that is to say the resources of those behind you.

I direct the respondents to file any material relied upon within 21 days of today's date.  You might want to file something in reply, Mr Basten, I suppose.

MR BASTEN:   Perhaps if we could have that.

HIS HONOUR:   I direct you to file any affidavits no later than 9.30 am on Monday, 20 December and the matter can be listed before me that day to see what else needs to be done and for the purpose of fixing a date for hearing.  It does not necessarily follow I will be hearing the matter.

Unless there is anything else, that will be sufficient to deal with today's summons.

Have you anything further, Mr Roberts?

MR ROBERTS:   No, your Honour, except I suppose there is a possibility that we might ask for some cross-examination.  Unfortunate as that may be, it is a possibility.

HIS HONOUR:   That could be dealt with on the 20th.

MR ROBERTS:   Yes.

HIS HONOUR:   Very well. 

MR BASTEN:   Would your Honour certify for counsel in that matter?

HIS HONOUR:   Yes, I will certify for counsel.  Call the next matter.

AT 10.10 AM THE MATTER WAS ADJOURNED
UNTIL MONDAY, 20 DECEMBER 1999