Moran, Ex parte - Re Min for Immigration

[1999] HCATrans 476

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry  
  Melbourne  No M116 of 1999

In the matter of -

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

Respondent

Ex parte –

JOSEPH MORAN

Prosecutor/Applicant

HAYNE J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON MONDAY, 13 DECEMBER 1999, AT 10.32 AM

Copyright in the High Court of Australia

MR O.P. HOLDENSON, QC:   If it please the Court, I appear with MR R.M. NIALL for the applicant/prosecutor, Joseph Moran.  (instructed by David Tonkin & Associates)

MR R.R.S. TRACEY, QC:   If your Honour pleases, I appear for the Minister.  (instructed by the Australian Government Solicitor)

HIS HONOUR:   Yes, Mr Tracey.

MR TRACEY:   Your Honour, we can inform you that the Minister takes the view that it is proper that the relief sought should issue and we have minutes of proposed orders that we hope will give effect to that.

HIS HONOUR:   The basis of the relief issuing being that the Minister is alleged to have acted on material that was not first made available to Mr Moran.

MR TRACEY:   Yes.  There were two police reports that had been obtained that were quite prejudicial and Mr Moran had not been given the opportunity of making submissions about, your Honour.  It was apparently an administrative oversight.

HIS HONOUR:   “Quite prejudicial” is one way of describing them, Mr Tracey.

MR TRACEY:   I am sure my friend would have another epithet, your Honour.  I should also tell your Honour that the draft orders nisi prepared by the applicant contained a wrong date of the decision and said that it occurred on 21 December instead of September.  My friend has had a revised draft prepared to put the correct date on it and it may assist if that were to be on file and placed with the - - -

HIS HONOUR:   Yes, I think it should be.

MR TRACEY:   All it does, your Honour, is correct the date of the decision.

HIS HONOUR:   Yes, thank you.  What I am looking for, Mr Tracey, is the rule that enables the order to be made absolute in the first instance which really is what is sought, is it not, or is it?  No, “order nisi be granted instanter.”

MR TRACEY:   But we then envisage, your Honour, will then make it absolute immediately.

HIS HONOUR:   Yes, I see.  It is Order 55 rule 1(4):

may, in its or his discretion, in a case in which it appears necessary for the advancement of justice, grant an order absolute in the first instance for –

various writs.

MR TRACEY:   Yes, your Honour.  The applicant is in immigration detention, your Honour, so that there is some urgency.

HIS HONOUR:   Yes, I understand that.  It is simply the form of the order that now occupies me, not whether an order should go.  It is simply to get the form right.  See, I wonder whether it would be sufficient if we took out order 1 and substituted, in orders 2 and 3, “order absolute for writ of certiorari directed to” et cetera; “order absolute for writ of prohibition directed to” et cetera.  Would that meet the case or am I tripping on things that I should not trip on?

MR TRACEY:   No, I do not think so, your Honour.  I think, under Order 55 rule 1(4), as your Honour has said, that first step can be jumped and we certainly do not oppose it being jumped.

HIS HONOUR:   No.  Then if I were to make orders in these terms.  Order 1 would become:

1.  Pursuant to Order 55 rule 1(4) order absolute in the first instance for a writ of certiorari directed to the Minister for Immigration and Multicultural Affairs of the Commonwealth of Australia requiring the decision made by the said Minister on 21 September, 1999 (“the decision”) whereby he determined to cancel the visa of the Applicant/Prosecutor pursuant to s 501(2) of the Migration Act, 1958 (Cth) to be brought up and quashed.

2.  Pursuant to Order 55 rule 1(4) order absolute in the first instance for a writ of prohibition directed to the Minister for Immigration and Multicultural Affairs of the Commonwealth of Australia forbidding any further action or proceeding on the decision.

3.  The Minister to pay the taxed costs of the Applicant/Prosecutor of and incidental to the proceeding.

4.  Certify for the attendance of counsel.

Now, Mr Tracey, have you any comment on that form of order?

MR TRACEY:   No, your Honour, that would achieve the object, I think.

HIS HONOUR:   Yes.  Now, Mr Holdenson, have you any comment on that form of order?

MR HOLDENSON:   No, your Honour.

HIS HONOUR:   Very well.  There will be orders in those terms.  I have amended the draft minutes which were supplied and I will initial those and they may remain on the file.  Is there anything else, gentlemen?

MR TRACEY:   No, thank you, your Honour.

HIS HONOUR:   Thank you.  I will adjourn.

AT 10.40 AM THE MATTER WAS CONCLUDED