Mohammad, Ex parte MIMA

[2001] HCATrans 186

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S56 of 2001

In the matter of -

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

First Respondent

THE REFUGEE REVIEW TRIBUNAL OF THE COMMONWEALTH OF AUSTRALIA

Second Respondent

Ex parte –

MANIRA ABDO SALAM MOHAMMAD

Applicant

GUMMOW J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 8 JUNE 2001, AT 9.28 AM

Copyright in the High Court of Australia

MR S.J. GAGELER, SC:   If the Court pleases, I appear with MR L.J. KARP for the applicant.  (instructed by Parish Patience)

MR G.T. JOHNSON:   May it please, your Honour, it is strictly an ex parte application but if your Honour is prepared to hear me ‑ ‑ ‑

HIS HONOUR:   I am, indeed.

MR JOHNSON:   I appear for the first respondent.  (instructed by Clayton Utz)

HIS HONOUR:   I should indicate that the Deputy Registrar has been informed by the solicitor for the second respondent, that is to say, the Tribunal, that it does not wish to be represented at the hearing of the matter and will submit to any order of the Court save as to costs.  Yes, Mr Gageler.

MR GAGELER:   Your Honour, this is an application for an order nisi substantially for mandamus directed to the Refugee Review Tribunal.  The affidavit in support is that of the applicant dated 27 February, and filed on 23 March.

HIS HONOUR:   Yes, I have looked at that.  And there is an affidavit by Mr Wilson, for the respondent.  That is right, Mr Johnson?

MR JOHNSON:   Yes, your Honour.  I read that, your Honour, but it is really only to complete the history.  It is not likely to have any bearing on your Honour’s consideration.

HIS HONOUR:   No.  Tell me this, Mr Gageler:  does it appear from the materials what your client says she would have wished to put to the Tribunal if alerted to this concern as to her Yemeni passport?

MR GAGELER:   No, it does not, your Honour, but what does appear from the material very clearly is that what I might call the “country information”, that is, the voluminous documentation that was taken into account adversely to her, was taken into account adversely as to her credit.  She was never given the opportunity to explain her story in the light of that information.

HIS HONOUR:   Yes.  What would her story have been?

MR GAGELER:   Well, no doubt, it would have been ‑ ‑ ‑

HIS HONOUR:   It has to be relevant to know, as there is a complaint of denial of procedural fairness, what it is you would have done if you had had the chance; surely.

MR GAGELER:  Well, not entirely, your Honour.  It is a question of whether or not she is truly given a chance to meet the case that is made against her.  If the issue is never raised, as it was not in this case ‑ ‑ ‑

HIS HONOUR:   There is no material indicating what she would have said if directly challenged as to the finding by the delegate as to the significance of her Yemeni passport or the “country information”, is that ‑ ‑ ‑?

MR GAGELER:   There is no evidence before the Court of that, yes.  That is so.

HIS HONOUR:   It is a matter for you, I suppose.  What I was presently minded to do was to – the matters I have just been discussing with you I would have thought would go to discretion.

MR GAGELER:   I see – I did look at Aala again last night, your Honour, and I realise that those matters are relevant.

HIS HONOUR:   Would be to proceed under Order 55 rule 2 and adjourn the matter to a Full Court for consideration of an application for an order absolute in the first instance; give you the opportunity to put on any further evidence you wish to, and Mr Johnson any further evidence he wished to, and - - -

MR GAGELER:   If your Honour pleases.

HIS HONOUR:   It is enough to constitute a Full Court, is it not?  There is no constitutional question arising, I do not think.

MR GAGELER:   No.

MR JOHNSON:   No.

HIS HONOUR:   It is enough to constitute a Full Court where there is no constitutional question arising – to have two Justices, is it not?

MR GAGELER:   Yes.

HIS HONOUR:   I think that is right?

MR GAGELER:   I think that is right, your Honour.  I have not looked at those provisions of the Judiciary Act for some time.

HIS HONOUR:   Yes, section 19.

MR GAGELER:   Yes.

HIS HONOUR:   And to set it down, perhaps, before two Justices – perhaps more – with a limited time for oral submissions on that day.

MR GAGELER:   That is suitable, your Honour.

HIS HONOUR:   Does that sound suitable, Mr Johnson?

MR JOHNSON:   Can I first take instructions, your Honour?

HIS HONOUR:   Yes.

MR JOHNSON:   Yes, that is acceptable, your Honour.

HIS HONOUR:   Just pardon me a minute.  This may have to change but tentatively in Sydney at 2 pm on 18 September.  That seems to be the first possible date.

MR JOHNSON:   That is suitable to me, your Honour.

HIS HONOUR:   Is that suitable to you, Mr Gageler?

MR GAGELER:   It will be, your Honour, yes.

HIS HONOUR:   How long would you need to put on any further material?

MR GAGELER:   If your Honour gave us two weeks, that would be more than sufficient.

HIS HONOUR:   That would take us to the 22nd.  And the Minister?

MR JOHNSON:   A further two weeks, your Honour.  I am not quite sure exactly what my friend wishes to put on.

HIS HONOUR:   No, that is right.  That will be 6 July.  This is what I propose:

(1)The applicant file and serve any further affidavits on or before 22 June;

(2)The respondent file any further affidavits on or before 6 July;

(3)Direct that the application proceed before a Full Court as an application in the first instance for final relief;

(4)Subject to any contrary listing direction, set the application down for hearing at Sydney at 2 pm on 18 September before a Full Court with each side to occupy no more than 1 hour in oral submissions;

(5)Costs reserved;

(6)Certify for counsel.

MR JOHNSON:   Your Honour, is there any need to make a direction in relation to further or supplementary written submissions?

HIS HONOUR:   Yes, you may be right.  Should there be any order for that?

MR GAGELER:   I do not think it would be necessary, your Honour.  We can ‑ ‑ ‑

HIS HONOUR:   You can work it out between you.  I will say, “Any further written submissions be filed and served on or before” - what date do you suggest, gentlemen?

MR GAGELER:   We will do it two weeks before the hearing and my friend can do it a week before the hearing.

HIS HONOUR:   Yes, I think on or before 31 August.

MR GAGELER:   Yes.

HIS HONOUR:   So, I have inserted:

(5)Any further written submissions be filed and served on or before 31 August 2001;

(6)Costs reserved;

(7)Certify for counsel.

MR GAGELER:   Could I just raise one matter, a procedure contemplated by your Honour’s orders?

HIS HONOUR:   Yes.

MR GAGELER:   I take it your Honour does not have in mind the applicant filing a notice of motion in accordance with Order 55, rule 2?

HIS HONOUR:   Yes.  Perhaps there should be a motion, actually.  (3) should perhaps say:

(3)Direct that the application proceed by notice of motion before a Full Court as an application –

And that motion, that can go in with the further affidavits on the 22^nd.

MR GAGELER:   Yes, your Honour.

HIS HONOUR:   So, I will revise (1) to say:

(1)The applicant file and serve the notice of motion –

I will read it again in a minute –

referred to in order (3), and any further affidavits.

So, (1) will read:

(1)The applicant file and serve the notice of motion referred to in order (3), and any further affidavits, on or before 22 June;

(2)The respondent to file and serve any further affidavits on or before 6 July;

(3)Direct that the application proceed by notice of motion before a Full Court as an application in the first instance for final relief;

(4)Subject to any contrary listing direction, set the matter down for hearing in Sydney at 2 pm on 18 September before a Full Court with each side to occupy no more than 1 hour in oral submissions;

(5)Any further written submissions be filed and served on or before  31 August;

(6)Costs reserved;

(7)Certify for counsel.

MR GAGELER:   Thank you, your Honour.

HIS HONOUR:   Thank you.

AT 9.44 AM THE MATTER WAS CONCLUDED