MIP, ex parte- Re Hudson

[1999] HCATrans 55

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne

In the matter of -

A proposed application for order nisi
  for prerogative relief against
  THE MINISTER FOR IMMIGRATION
  AND MULTICULTURAL AFFAIRS

Proposed First Respondent

DR RORY HUDSON constituting
  THE REFUGEE REVIEW TRIBUNAL

Proposed Second Respondent

Ex parte -

"M I P"

Proposed Applicant

HAYNE J (in Chambers)

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON MONDAY, 15 MARCH 1999, AT 7.15 PM

Copyright in the High Court of Australia

HIS HONOUR:   Yes, Mr Hurley?

MR T.V. HURLEY:   Your Honour, I appear on behalf of the applicant in this matter.  (instructed by Fernandez and Johnson)  I will ultimately be asking the Court that he be described by some known nomenclature other than his name.  The applicant seeks interim relief ‑ ‑ ‑

HIS HONOUR:   Just a moment, Mr Hurley.  You are here to represent the department, are you?

MS M. NGO:   Yes, Your Honour, until such time as counsel, Mr Warren Mosley, has arrived at court.  He has been briefed in the matter.  (instructed by the Australian Government Solicitor)

HIS HONOUR:   Yes.  Thank you, Ms Ngo.  Mr Hurley, first as I understand it, we have no proceedings that have yet been instituted, do we?

MR HURLEY:   No, Your Honour, we do not.

HIS HONOUR:   So this is an application for an injunction in a proposed proceeding.  Is that right?

MR HURLEY:   Yes, Your Honour.

HIS HONOUR:   Against whom would that proposed proceeding be instituted?

MR HURLEY:   It would be the Minister for Immigration and Multicultural Affairs.  That would be the first respondent.  The second respondent would be Dr Rory Hudson who constituted the Refugee Review Tribunal.  Your Honour, I am in a situation - I do not have an affidavit.  I have an instructress in transit to swear or undertake to swear an affidavit according to my instructions.

HIS HONOUR:   Mr Hurley, I am told by the deputy registrar that the matter is seen as one of some urgency.  As you see, we have made arrangements for a transcript to be taken.  A transcript will therefore be taken of the proceedings.  If you obtain relief - I see Mr Mosley has arrived, but just let me complete what I am saying.  If you were to obtain relief this evening, ordinarily I would expect that that would be on terms that an affidavit or affidavits are sworn very promptly deposing firstly to what it is that I am told tonight, and secondly deposing to its accuracy, and ordinarily speaking such an affidavit would have to be prepared, filed and served in very short order on those whom it is intended should be respondents in this proceeding.

MR HURLEY:   Yes, Your Honour.

HIS HONOUR:   I know that your instructor is not here at the moment, but the transcript will record what is said.  We therefore should not encounter the difficulty sometimes encountered on ex parte applications or urgent applications where no-one quite knows what the judge was told.  At least this time we will.  Mr Mosley, I understand that dashing in off the street you appear for some party or some person whom it is intended should later become a party if and when a proceeding is instituted.

MR W.S. MOSLEY:   That is correct, Your Honour.  I appear for the Minister who I presume will be respondent to the application. (instructed by the Australian Government Solicitor)

HIS HONOUR:   Mr Hurley has told me that it is intended that the Minister would be the first respondent, and a Dr Rory Hudson who he tells me constituted the Refugee Review Tribunal in connection with this matter would be the second respondent.  Would you appear for Dr Hudson or no?

MR MOSLEY:   Yes, we would I believe, Your Honour.  I think that is the practice.  The tribunal generally submits to the jurisdiction.  I may not be correct in saying that.  It may only be that I appear for the Minister.

HIS HONOUR:   At least for the moment, Mr Mosley, I would take it that your appearance is limited to that of the Minister.  In so taking it I do not wish you to think that I am limiting you in some way, but for the moment I think it may suffice if your appearance is for the Minister.

MR MOSLEY:   If Your Honour pleases.  Thank you, Your Honour.

HIS HONOUR:   Mr Hurley, what is the order you seek, and what is the basis upon which you seek it?

MR HURLEY:   Your Honour, we seek an order that the first respondent, the Minister and his servants and agents, be restrained from removing my client from Australia until further order.

HIS HONOUR:   Yes.  Ordinarily speaking I would, if persuaded to make an order, propose that that order be returnable in very short time.  Ordinarily speaking I would be looking with an order of this kind to make it returnable tomorrow or the day following.  Having a meeting of the Court on Thursday, it would ordinarily therefore be tomorrow or the day following that I would make it returnable, and the injunction that you seek if I were persuaded to grant it would ordinarily not be for much longer than that.

MR HURLEY:   Your Honour, why we want it, we contend - if I can inform Your Honour of the chronology of my instructions, it becomes apparent.  The applicant is a citizen of Iran.  He arrived in Australia on 9 April 1997.  I am instructed he jumped ship.  He applied for refugee status on the Migration Act on 17 June 1997.

HIS HONOUR:   Sorry, what date?  17 June 97?

MR HURLEY:   17 June 97.

HIS HONOUR:   Yes.

MR HURLEY:   He claimed his fear of persecution arose relevantly for two reasons:  (1) that he had a minor political profile, and secondly relevantly - specifically relevantly, that he had developed an interest in the Christian faith from 1994.  This matter proceeded to a hearing before the Refugee Review Tribunal constituted by the proposed second respondent which the decision was given on 25 November 1997.

HIS HONOUR:   Sorry, I was distracted.  What date November 97?

MR HURLEY:   25 November 1997.

HIS HONOUR:   Thank you.

MR HURLEY:   I have a copy of that, Your Honour, for the Court, but relevantly the tribunal found first that the applicant was not a convincing witness.  It did not accept his claims based on his political profile, but the tribunal doubted the applicant's claims that he adhered to the Christian faith, and observed that the claim that he would sacrifice the applicant's life for his faith was ludicrous hyperbole, but then proceed on page 12 of its reasons by saying that - giving the applicant the benefit of the doubt to the point of assuming he has a vague interest in Christianity, he had so little knowledge of it that the tribunal concluded he did not have a sincere commitment to it, and therefore proceeded to reject the application for refugee status. 

Your Honour, the applicant appeared at the tribunal.  He seems to be represented before the tribunal before the Legal Aid Commission of Western Australia, and evidence is given on his behalf by a woman who I think adhered to the faith - the Christian faith.  The applicant made an application to the Minister under section 417 of the Act, and this was refused in June 1998.  That is the power, Your Honour, that enables the Minister to set aside a decision and substitute another one in the applicant's favour.

The applicant on 29 September 1998 was baptised as a Christian whilst in custody in detention in Melbourne.  The Minister was then asked to exercise his power under section 48B of the Migration Act I believe by letter dated 18 November 1998.  A submission was put to the Minister.  The submission was to the effect that the applicant had been baptised as a Christian.  The Minister should revisit the matter.  Your Honour will recall that under section 48A;

A person cannot make a second application for refugee status where one has been rejected without the leave of the Minister.

Under section 48A(1):

The Minister can give that leave if the Minister is satisfied it is in the public interest do to so -

but under section 48B(6), the Minister does not have to consider whether to exercise the power whether asked - basically, Your Honour, at any time.  He is under no duty to consider it.  The Minister decided by letter dated 17 February 1999 that - and he personally wrote stating:

The request for the exercise of the power was referred to me.  However, I have decided not to consider exercising my power.

The applicant was thereafter advised on 12 March of travel arrangements to remove him.  The applicant, Your Honour, has never held - I believe my instructions are the applicant has never held a visa.  He has been in custody for a long period of time.  If he ever held a visa it was - I am not instructed that he has ever held a visa.  I believe he has been an unlawful non-citizen at all times.  He has been in detention as I am instructed from a time very shortly after he jumped ship.

On Friday, Your Honour, he was advised that he would be moved from the detention centre in Melbourne where he has been in detention since September 1997 when he was baptised in Melbourne, and some time prior to that.  He was moved from Melbourne to Perth on Sunday, and then I am instructed today he was moved from Perth to Esperance where an Iranian ship - it is proposed that he be placed on an Iranian ship some time tonight, and that ship will depart Western Australia and sail to Iran.

HIS HONOUR:   Yes.

MR HURLEY:   Your Honour, there are two bases upon which the applicant seeks interlocutory relief, and the first relates to the decision of Dr Hudson.  Your Honour, since that decision it has become apparent that Dr Hudson has expressed a view in his home page on the Internet to the effect that refugee applicants are, for whatever reason, sometimes driven to tell untruths.  This was so found by Heerey J in the Federal Court on 22 December 1998 in the matter of Besin Ferati v Minister for Immigration.  I have a copy of the Internet version of that, Your Honour. 

The essence of it is that Dr Hudson has a home page where he makes people aware of himself, and that includes the observation that - this is quoting from Heerey J's reasons and in turn quoting from the home page - that:

When I was first appointed to the tribunal, a colleague who shall remain nameless said to me, "Let them all in, Rory," but while I would like to let into Australia at least 95 per cent of the applicants who come to us who are actually deserving cases and decent human beings even if they lie through their teeth as they often do in their desperation to find a better life, it is not as simple as that.  The government has a fixed quota of places for refugees both on-shore and off-shore every year -

and it goes on for a few more lines, Your Honour, and the home page Heerey J sets out contains this sentence:

We work with dishonesty and corruption on all sides.  Foreign governments who practise the most abhorrent forms of cruelty against their citizens, immigration officials bent on keeping out as many people as they can irrespective of need, other parties who in my present position I had better not mention, applicants who weave webs of lies, lawyers and migration agents who pray on them to rip off what little money they have.  In these sordid surroundings it is I firmly believe only the RRT and the Courts, and to be fair a small minority of honest lawyers and migration agents, who stand up for decent values and who honestly seek to do what is right.

Your Honour, quoting from that passage, led Heerey J to conclude that this would exercise in the fair-minded reasonably instructed bystander that there was an apprehension of bias, and he set aside the subject decision before him in order that it be remitted to the RRT, differently constituted.  I am advised that this decision of 23 December 1998 is under appeal to the Full Court of the Federal Court.

HIS HONOUR:   What is said to be the bias that is apprehended?

MR HURLEY:   That the member has a view that even well-intentioned applicants for refugee status will lie, will weave a web of lies, and lie through their teeth.

HIS HONOUR:   What, that some will or some may?

MR HURLEY:   Some may.  Not all will, but some may.

HIS HONOUR:   Well, it moved Heerey J in that case to give what relief; to set aside the decision?

MR HURLEY:   And remit it to a differently constituted tribunal.  Heerey J - I do not know whether Your Honour would be assisted by Heerey J's observations, but he observed that fact-finding in refugee cases was a difficult and sensitive task, and he came to the conclusion, Your Honour, that:

But his critical role in either believing or disbelieving an individual applicant is hopelessly compromised by his published preconception that applicants often lie through their teeth and weave webs of lies.

HIS HONOUR:   Anyway, you say that that is an arguable point.

MR HURLEY:   An arguable point, Your Honour.

HIS HONOUR:   Just as a matter of interest, were they Part VIII proceedings before Heerey J?

MR HURLEY:   Yes, Your Honour, but bias is ‑ ‑ ‑

HIS HONOUR:   Actual bias is one of the permitted grounds, perception of bias, perhaps other considerations intrude, perhaps they do not.  Those may be matters for debate, but actual bias is mentioned.

MR HURLEY:   Actual bias is a permitted ground, Your Honour.

HIS HONOUR:   Yes, but as I understand Heerey J's finding as you relay it to me - at least not instantly apparent to me that that is a finding of actual bias, but anyway, sufficient you say, I take it, that the point is arguable; a single judge of the Federal Court has found this.  Therefore you have an arguable case - to do what?  To demonstrate that the RRT decision is flawed.

MR HURLEY:   Yes, Your Honour, that that decision - Dr Hudson being an officer of the Commonwealth for the purposes of deciding the application, I do concede, Your Honour, in November 1997 was we would submit a trial.  The decision is affected by bias.  It should be quashed with certiorari and the application for refugee status remitted to be redetermined.  On that basis, Your Honour, what has happened afterwards about baptisms and seeking the Minister's permission for a further application does not arise because the first one was never determined according to law.

HIS HONOUR:   Yes, and the second basis for your application is what?

MR HURLEY:   Your Honour, the second basis of the application has been relayed to me by telephone, and it relates to the manner in which the power given to the respondent to remove non-citizens from Australia should be exercised.  That power, Your Honour, is in the Act and clearly the Minister has the power to remove; in fact I believe there is even a duty to remove.

HIS HONOUR:   Well, an officer must under 198(6) remove as soon as reasonably practicable an unlawful non-citizen if certain events or certain conditions are met, and at least at first blush, if things stay as they are, those conditions are met.

MR HURLEY:   Your Honour, the point that will be made here is that the Minister is given power by these provisions to remove non-citizens.  It is a power which should be construed both according to its purpose to remove non‑citizens, but according to the requirements of a humane country.  I am instructed, Your Honour ‑ ‑ ‑

HIS HONOUR:   What, to humane destination or to humane means of removal?  What is the point that is being ‑ ‑ ‑

MR HURLEY:   Humane means of removal, Your Honour.  I am instructed that on Friday the applicant inflicted harm upon himself which required medical treatment.  I am instructed that as a result of that he was sedated, and I do not want to overstate my instructions, Your Honour, but he was removed at some stage after the medical treatment which was in Melbourne.  He was then removed to Perth.  We would be contending, Your Honour, that - and my instructions as to what has happened in Perth are - I do not have specific or clear instructions there, Your Honour, but we would submit that a process of removing or exercising the power of removal given by section 198 or the Act otherwise is beyond the jurisdiction of the respondent where it is exercised in a way that is inhumane by sedating people who have recently received medical treatment.

I am instructed that the applicant received 18 stitches to part of his person on Friday night, Saturday morning, and in those circumstances was removed from Melbourne to Perth.

HIS HONOUR:   It is not instantly apparent to me how it is that you will contend that removal is inhumane in these circumstances.  Sorry, I am just not grasping the point you are making.

MR HURLEY:   Your Honour, the power has limits that the power does not authorise in humane ‑ ‑ ‑

HIS HONOUR:   Assume for the purposes of argument that that proposition is good - and I do not stay to examine that for the moment - but assume it were so.  What is it that you would contend would make this man's removal in this way or in these circumstances inhumane?

MR HURLEY:   The possibility, Your Honour, that he is being placed on a ship while he is not possessed of his full faculties to care for himself or look after himself after he has left on the means of conveyance - removing him anyway from the detention centre in Melbourne in circumstances where he is unable to respond, instruct, advice or look after himself because he has been subjected to sedation.

HIS HONOUR:   That would at least at first sight be an argument involving a number of steps.  First there is of course the question of construction and the question of whether the power or the obligation, whichever it is, is subject to limitations of the kind you assert.  Second, that as a matter of fact what is being proposed is contrary to whatever that limitation or those limitations may be.  I must say for the moment that on what you have told me thus far, the bare facts of self-harm, sedation, movement do not instantly convey to me the conclusion that if there is a limitation of humanity or humane method, that this is inhumane, but it may be, Mr Hurley, that this second limb of the argument may stand apart.

What is it that you would say to explain the lapse of time between - well, what time?  Do you make any submission to me about when Dr Hudson's views upon which you rely first came to the notice of those by whom you are instructed?

MR HURLEY:   It first came to the notice of those who instruct me very recently.  I gather from Heerey J's reasons that the home page was published on 21 October 1997, and I see from that that is a month in fact before Dr Hudson gave his decision on 25 November 1997.

HIS HONOUR:   But so far as questions of delay or time are concerned, do you say that it will be your case that this is a matter that came to the attention of those who instruct you very recently?

MR HURLEY:   Within the last few hours, Your Honour.

HIS HONOUR:   I see.

MR HURLEY:   It is within the last few hours.  If it had been known earlier than that, this application would have been made at an earlier time.

HIS HONOUR:   I do not wish to cut you off too quickly, but do I understand the submissions to come down to this:  first, given Heerey J's decision, I should be persuaded that there is either a case to be tried or investigated or serious issue or whatever the better view of the test may be for injunction; second, that balance of convenience issues are weighted in your favour, in that if this man leaves, then that is an end of his application; and third, that what seems to be a very long delay in making the point or this first of the two points that you mention is to be explained by it having come to notice only recently.  Is that the essence of it?

MR HURLEY:   That is the essence of it, Your Honour, yes.

HIS HONOUR:   Are there other matters you would wish to urge on me before I ask Mr Mosley to address me?

MR HURLEY:   No, Your Honour.  That is the essence of the case we submit at this stage it warranting a stay order or an order restraining the respondent from proceeding further.

HIS HONOUR:   Mr Mosley, given that you have come into the matter perhaps very recently and perhaps have been learning of it as I have been learning of it, are there submissions that you wish to make about whether I should make an order?  For the moment, the only order I am considering is one limited in time to an order for 24, 48 hours, something of that duration.  I take it the inevitable consequence of an order even of that duration is that quite literally this man misses the boat.  Is that right?

MR MOSLEY:   I believe that to be the case, Your Honour.  I hasten to add that I have very limited instructions about this matter, but as I understand it, the vessel on which he is departing was leaving today, and when I left chambers and spoke to my instructing solicitor this evening, no application had been made, so I presume it has not as yet left Esperance. 

HIS HONOUR:   What do you say then in answer to the point that I should be persuaded of serious issue because of Heerey J's decision, be that decision right or wrong ultimately, and that balance of convenience is weighted wholly in favour of the applicant or at least very largely so?

MR MOSLEY:   Your Honour, I make these points as I say with limited knowledge of this matter, but in relation to Heerey J's decision in Ferati, as Your Honour pointed out to my learned friend, the question of 476(1)(f) which is available as a ground of review under Part VIII relates to actual bias.

HIS HONOUR:   There may be matters for real debate about that in the Federal Court, but in this court of course we would have whatever is open to us under 75(5), would we not?

MR MOSLEY:   Yes, Your Honour, but the point that I submit with respect to that, Your Honour, is this:  taking up Your Honour's question to Mr Hurley, that decision was certainly made - His Honour said:

I do not think it shows actual bias in the sense of bias held by Dr Hudson against this particular applicant.  However, there is in my opinion a clear case of apprehended bias.  As such there was a failure to act according to substantial justice.  Section 422B - - -

HIS HONOUR:   .......... argument.

MR MOSLEY:   Again it somewhat depends upon the High Court's decision as it turns, in my submission, entirely - this apprehended bias point, it turns on the decision of the High Court as to whether that ground or review is available.

HIS HONOUR:   But again in this court, we would not be limited to that.

MR MOSLEY:   Yes, I appreciate what Your Honour says.

HIS HONOUR:   It seems to me - again I come to this matter expressing no view - but there may be a lively question whether notions of apprehended bias are apposite in inter partes proceeding, but not apposite in inquisitorial proceedings of a kind that it may, it may not, be right to say RRT proceedings are.  But the point - can I tell you frankly my difficulty?

MR MOSLEY:   Yes, Your Honour.

HIS HONOUR:   An applicant comes with a Federal Court single judge decision in the hand and says, "Look, at least I have got an arguable case."  The respondent is then in a rather difficult position, is it not, to say, "No, look the Federal Court judge's decision is plainly, unarguably wrong."

MR MOSLEY:   As we would say.

HIS HONOUR:   It just shows there is no lonelier place than the lectern in the High Court, does not it, Mr Mosley? 

MR MOSLEY:   Your Honour, on the question - Your Honour raised this issue of delay.  My instructions were, taking up Mr Hurley's chronology, that the decision in this matter was made on 25 November 1997.

HIS HONOUR:   That is RRT, is it?

MR MOSLEY:   That is the RRT decision, not the delegate.  That is the RRT decision from which he could have appealed or sought an application for an order of review in the Federal Court within 28 days.  He was represented before the RRT by the Legal Aid Commission of Western Australia by a lawyer, Mr Andrew Bias of the Legal Aid Western Australia as is recorded in the Refugee Review Tribunal's decision on page 2.

No application was made to seek to review that decision.  Mr Hurley informs the Court that in June of the following year which is some six or seven months later, a 417 application was made to the Minister to seek to have him exercise his discretion.  As I understand Mr Hurley, at some stage in June that application was refused.  He can correct me if I am wrong about that.  It was then sought in November of that year - that is last year - 18 November; that is 12 months after the decision was made by the Refugee Review Tribunal to seek for the Minister to exercise his power under section 48B of the Act to allow the applicant to make another application for a protection visa and that was refused.

So in terms of the delay, in our submission there has been extraordinary delay in this matter by an applicant who it would appear was represented at the hearing, but took no steps to make any application at that stage to suggest there was any error of law disclosed in the decision of the tribunal.  That is the first point that I would submit with respect to that, Your Honour.  The other issue that I would take with what Mr Hurley mentioned was that on - I think he said - I am not certain of the date, your Honour, but in terms of when the applicant was served with a notice of intention to remove him ‑ ‑ ‑

HIS HONOUR:   It was said to be by Mr Hurley.  He was advised on 12 March, namely last Friday.

MR MOSLEY:   On our instructions the notice of intention to remove was served ‑ ‑ ‑

HIS HONOUR:   Is that the same thing?

MR MOSLEY:   - - - on 3 March.  I think that is - I make that point in any event, Your Honour, but subject to, as I say, in respect of these submissions, but a chronology that I had was that it was 3 March that a notice of intention to remove him was served, and even if it was 12 March, as Mr Hurley said - that was Friday, I think - no application was made on that day, no application was made over the weekend, and no application is made until very late this evening.  In our submission, Your Honour, there is no merit in the application.  It has been refused by the tribunal.  It has been considered at least once under section 417 by the Minister.  It has been considered again under section 48B by the Minister who would not exercise his discretion to enable a further application to be made for a protection visa.

The issue of Christianity, if Your Honour - has Your Honour been provided with a copy of the decision of the tribunal?

HIS HONOUR:   No, I have not, but is that not an issue that would go to in effect the merits of the claim that the intended applicant has made to refugee status rather than to the procedural regularity of the steps that since have been taken?

MR MOSLEY:   Yes.

HIS HONOUR:   His complaint now is that the RRT hearing was procedurally irregular and that it should quashed.  Do I need in those circumstances, indeed is it right in those circumstances, for me to dive into the merits of his claims to conversion, sincerity of belief and the like?

MR MOSLEY:   No, Your Honour, I accept that.  With respect to my learned friend's second argument, Your Honour I think dealt - and I grabbed a decision in which Your Honour dealt with an application for removal of a gentleman to Somalia involving Mr Kissane in which Your Honour ‑ ‑ ‑

HIS HONOUR:   Yes, I am familiar with that.

MR MOSLEY:   I do not think the name is public, so perhaps I ought not raise that, but Your Honour dealt with this issue of ‑ ‑ ‑

HIS HONOUR:   Forgive my amusement, Mr Mosley.  The orders made in this court about confidentiality were varied in ways I do not quite understand by order of the Federal Court, but there we are.

MR MOSLEY:   Your Honour, with respect to the - there was a submission made in that case that the applicant had submitted - I am reading from Your Honour's judgment - that:

Section 198(6) should be read as limiting to obliging removal only when to do so is reasonable -

and in my submission that amounts to what Mr Hurley is submitting to Your Honour.  In my submission what he is suggesting is that where it is unreasonable to do so due to - I think what he is suggesting is some form of ill health.  Your Honour said ‑ ‑ ‑

HIS HONOUR:   I do not think I am going to be much assisted, Mr Mosley, at the moment by submissions on this aspect of the matter.  The matter that troubles me much more is the first point, and if the applicant is entitled to injunction on that, then this second point, for the moment at least, falls away.

MR MOSLEY:   Yes.  I appreciate what Your Honour says.  Your Honour, all I can submit with respect to that is in our submission - and again Your Honour will probably pick me up with respect to this - but what Mr Hurley read to Your Honour, the extract that appears in Heerey J's judgment, what Dr Hudson has said in our submission represents no more than what presumably every judicial officer in every court from time to time would either enunciate sotto voce or perhaps openly that persons who come before him tell lies.

It is no more than stating what is, in our submission, the obvious.  But I take Your Honour's point, that there is a decision of Heerey J that is against us.  As Mr Hurley said, that has been the subject of appeal and as I understand it, that is fixed for hearing in May before the Full Federal Court - no, it is not fixed, I am sorry.  Yes, it is some time in May that it is likely to - I do not know whether I can assist Your Honour any further.

HIS HONOUR:   Mr Mosley, I am minded to give Mr Hurley an order.  I will be assisted by submissions from counsel about the terms of that order.  It is sufficient to say that, given the urgency of the matter, the circumstances in which it arises, the fact that the applicant prays in aid a decision of a single judge of the Federal Court and has in his favour the whole of the considerations ordinarily weighed in the balance of convenience, I am firmly of the view that this is a case appropriate for the making of an interim injunction.  I say interim injunction because I am of the opinion that the injunction should be limited until 4.15 pm on 17 March 1999 or further order and that directions should be given to bring the matter back on for interlocutory relief before that time.

If counsel would just give me a moment whilst I formulate the form of order, and I will then invite submissions about the terms of that order.  It may be as well, Mr Mosley, since we are unsure of the time of departure of this vessel, if your instructor would be good enough to communicate to those instructing her that an order will be made and that order should be acted on now.

MR MOSLEY:   As Your Honour pleases.  I will have her do that now.

HIS HONOUR:   I am sure that if she needs access to telephones, these things can be arranged.  Just one matter, Mr Mosley:  on what terms, if any, do you say this injunction should go?  In particular, ordinarily with injunction, one would be talking in terms of undertakings as to damages.  Is that appropriate in a case of this kind?

MR MOSLEY:   Your Honour, there have been costs incurred obviously in terms of removal from Maidstone to Perth and removal from Perth to Esperance and whatever costs may be incurred in keeping them in Esperance until such time as he was put on whatever Iranian vessel he was due to leave on this evening.  So, yes, in our submission, we would say that it ought to be on some terms with respect to those costs if they are thrown away.

HIS HONOUR:   Undertaking as to damages.

MR MOSLEY:   Yes.

HIS HONOUR:   Mr Hurley?

MR HURLEY:   Your Honour, in relation to the costs of detention, they are governed by the act.  There are scheduled procedures for that.  In relation to costs of the orders, an undertaking for damages, I will gladly give one, but I don't have specific instructions, but I presume I would have those instructions - what I'm saying, Your Honour, I don't want to give an undertaking to the court when I don't have instructions to give that undertaking.

HIS HONOUR:   How long will it take you to get them?

MR HURLEY:   I believe, Your Honour, my instructress is on top of Flagstaff station at the front door.  She wasn't told of the plan to go to the back door.  So, Your Honour, perhaps if I can give that undertaking.  Your Honour, at this stage it may not determine granting interim relief - if I could persuade Your Honour to make the order without the undertaking at this stage, I will indicate that I will seek one and advise if my client gives one, and I am certain I will get those instructions.  But I cannot give an undertaking as we speak, in the absence of instructions to do so.  I do not believe that would be - I cannot.

HIS HONOUR:   There is a difficulty then.

MR HURLEY:   If I can go to the phone, Your Honour, I can perhaps ring my instructress up.

HIS HONOUR:   Just before we do that, let us deal with that, secondly.  What I have in mind - and just having photocopied my handwritten scrawl which will give counsel something on which to work - is an order that will be limited as to time.  My associate will hand to you gentlemen a copy of what I have in mind.  Order 1 would be that until 4.15 pm on 17 March or further order, the intended first respondent, the Minister, not by himself - etcetera - remove or attempt to remove.

Order 2 would be that on or before 2.15 pm tomorrow, the intended applicant caused to be issued a summons seeking interlocutory injunction, restraining until hearing and determination of application for prerogative relief, intended first respondent from removing.  So summons for interlocutory injunction to be issued by 2.15 tomorrow.

Order 3 would be - that should be on or before 2.15 pm, 16 March; it reads 18 March, it should read 16 March - intended applicant file and serve on each respondent; (a) an affidavit or affidavits deposing to all of the material placed before me; (b) an affidavit or affidavits in support of an application for order nisi for prerogative relief directed to the intended respondents, that of course standing in the place of the initiating process; (c) such affidavit or affidavits as the applicant may be advised in support of an application for interlocutory injunction; and (d) a copy of this order.

Then order 4 would be, direct that the application for order nisi and the application for interlocutory injunction be made returnable in the first instance before a single Justice on 17 March at 10.30, or at such other time as may be fixed by a single justice, and reserve costs and certify.

MR MOSLEY:   Your Honour, if I might interpose - I am sorry to interrupt Your Honour - but my instructing solicitor has handed me a note that says, "The department thinks ship might have left Australia."

HIS HONOUR:   Well, I think, ladies and gentlemen, at this point we had better start agreeing on times.  I make the time 11 minutes past 8.  Your instructing solicitor will have been asked to leave and communicate at about 7 or 8 past, Mr Mosley.  Would that be so?

MR MOSLEY:   I think so, Your Honour.

HIS HONOUR:   Plainly, this is the sort of thing about which people become very agitated.  Lest there be any doubt of it, Mr Mosley, I now make an order in the terms of minute 1 of the order before you.  Do you have that minute?

MR MOSLEY:   Yes, I do, Your Honour.

HIS HONOUR:   Would you be good enough to have your instructor convey the terms of that order, and as I say, I make the time now 12 minutes past 8 o'clock Eastern Summer Time.  Would you be good enough to have your instructor do that at once?

MR MOSLEY:   Yes, at once.  Does Your Honour wish me just to clarify one thing?  She seems anxious to ask me something.

HIS HONOUR:   Yes, of course. 

MR MOSLEY:   Yes, I do not think that is particularly - that phone call is going to the ships and what have you, as I understand it.  I will get my instructor to go and do what Your Honour has said.

HIS HONOUR:   Yes, if she would be so kind as to convey to those instructing her that I have now made an order in the terms of minute 1 that she has before her.

MR MOSLEY:   There is always drama.  There was drama earlier when I was cooking my spaghetti with my young daughter.

HIS HONOUR:   You were so lucky as to get that far, Mr Mosley.  Now, what are we to do, Mr Hurley?  Do you wish to have an opportunity to obtain some instructions or what is it you wish?  Leave aside the undertaking as to damages.  That I think, in political jargon, has become rather a second level issue, hasn't it.

MR MOSLEY:   It has, Your Honour.  I would also like to get some instructions, if I may.

HIS HONOUR:   Perhaps if I adjourn and I will come back onto the bench at 25 past 8.  Ladies and gentlemen, I will adjourn for the moment.

ADJOURNED  [8.12 pm]

RESUMED  [8.30 pm]

HIS HONOUR:   Now, where are we up to?

MR HURLEY:   Your Honour, my learned friend advises that he is instructed that my client has not left.  The ship is at the dock and it has not left, and he is still in custody where he is.

HIS HONOUR:   The order has been made, Mr Hurley, and the order has been made, and no doubt those who are charged with the matter will do what has to be done to obey.  Now, as to the other terms of the order that I had proposed?

MR HURLEY:   I have instructions, Your Honour, to give the undertaking that Your Honour sought, and I have indicated to my friend, because this occurred before he arrived, that we do seek an order that at least until Thursday these proceedings not be publicised, so that a nomenclature or some - by some procedure, the applicant will not be able to be identified by examination of the transcript.

HIS HONOUR:   If I were to make an order, Mr Hurley, that until 4.15 pm on 17 March 1999 or further order the applicant's name not be published, and that the transcript and documents hereafter filed in the Court refer to the applicant as MIP, first, that is not plain that the second half of that would persist only until that time.  I can adjust that in the drafting, but is that the form of order that you seek?

HIS HONOUR:   Yes, Your Honour.

HIS HONOUR:   Mr Mosley, what do you say about my making an order to that effect?

MR MOSLEY:   Yes, we would support that, Your Honour.  We are happy with that.

HIS HONOUR:   Thank you.

MR MOSLEY:   Whilst I am on my feet, Your Honour, it is just in relation to affidavits in reply that might ‑ ‑ ‑

HIS HONOUR:   I would propose to make no direction about when they are to be filed and served, Mr Mosley, simply because this comes upon you late and I am not minded to direct when they are to be filed and served.

MR MOSLEY:   If Your Honour pleases.

HIS HONOUR:   Unless you positively urge me to.

MR MOSLEY:   No, we do not.

HIS HONOUR:   Mr Hurley, you are instructed to offer and do offer an undertaking on behalf of the counsel in these terms; that upon the applicant by his counsel undertaking to the Court to abide by any order that the Court may make as to damages in case the Court should hereafter be of opinion that the intended respondents or either of them shall have sustained any by reason of this order which the applicant ought to pay.  In each case I think it should be the intended applicant.  Do you offer that undertaking?

MR HURLEY:   I do, Your Honour.

HIS HONOUR:   Then as I have already previously ordered, I recite again that:

1. Until 4.15 pm on 17 March 1999 or further order, the intended first respondent, the Minister for Immigration and Multicultural Affairs, not (whether by himself, his servants or agents or otherwise howsoever) remove or attempt to remove the intended applicant from Australia.

1. On or before 2.15 on 16 March 1999 the intended cause to be issued a summons seeking interlocutory injunction restraining (until the hearing and determination of an application for prerogative relief directed to the intended respondents or further order) the intended first respondent from removing the intended applicant from Australia.

1. On or before 2.15 pm on 16 March 1999 the intended applicant file and serve on each respondent:

(a)  an affidavit or affidavits deposing to all of the material placed before Hayne J on the hearing of this application;

(b)  an affidavit or affidavits in support of an application for order nisi for prerogative relief directed to the intended   respondents;

(c) such affidavit or affidavits as the applicant may be advised in support of his application for interlocutory relief;

(d)a copy of this order.

1. Direct that the application for order nisi for prerogative relief and the application for interlocutory injunction be made returnable in the first instance before a single justice sitting in Melbourne on 17 March 1999 at 10.30 am or at such other time as may be fixed by a single justice.

1. Until 4.15 pm on 17 March 1999 or further order:

(a)the applicant's name not be published; and

(b)the transcript of proceedings and documents filed in the court refer to the applicant as MIP.

1. Reserve costs.

1. Certify for the attendance of counsel in chambers.

Do either counsel seek to be heard about the form of those orders?

MR HURLEY:   No, Your Honour.

HIS HONOUR:   Thank you.  Those orders are then made.  I will adjourn.

MATTER ADJOURNED AT 8.37 PM