Muthusamy, Ex parte - Re Min for Immig

[1999] HCATrans 420

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M14 of 1999

In the matter of –

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

First Respondent

B.F. KISSANE

Second Respondent

Ex parte –

PUHENTHIRAR MUTHUSAMY

Prosecutor

HAYNE J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON TUESDAY, 23 NOVEMBER 1999, AT 10.45 AM

(Continued from 22/11/99)

Copyright in the High Court of Australia

HIS HONOUR:   Mr Vadivelu for the applicant and, Mr Mosley, I think this is your matter, is it not?  Now, is this a matter in which, again, I should make orders of the kind just made in Zanaj, Mr Mosley?

MR MOSLEY:   Yes, your Honour.  The only difference between this and the earlier matters, I think, was there is no 417 application in this.

HIS HONOUR:   So, is there any need then to preserve any part of the matter in this Court?  Yes, there is, is there not?

MR MOSLEY:   Yes, in respect of - - -

HIS HONOUR:   Yes.  Do we have a draft order nisi filed in this matter, Mr Vadivelu?

MR VADIVELU:   No, your Honour.  Your Honour has proposed one draft order.  Other than that, I have not filed anything before your Honour’s Court.

HIS HONOUR:   Yes, the draft order nisi I have in mind is the exhibit RV2 to your affidavit of 12 January 1999, Mr Vadivelu. 

MR VADIVELU:   That is right, your Honour.

HIS HONOUR:   Yes, so it would be on the grounds in the order nisi, would it not, Mr Mosley?

MR MOSLEY:   Yes.  I have got that now, yes, your Honour.

HIS HONOUR:   So, in Muthusamy the order would be:

(1) Grant of an order nisi on the grounds in the draft order nisi filed herein. 

Orders (2), (3), (4), (5) and (6) would be in the form previously adopted.

(2)  Remit to the Federal Court of Australia that part of the matter pending in this Court in which the applicant seeks a writ of mandamus prohibition or certiorari or an injunction against an officer of the Commonwealth on the grounds that:

(a)  the Refugee Review Tribunal failed to observe the procedures that were required by the Migration Act 1958 (Cth) (“the Act”) or the regulations under the Act to be observed by the Tribunal in connection with the making of the decision challenged in these proceedings;

(b)  the Tribunal did not have jurisdiction to make the decision it did;

(c) the Tribunal’s decision was not authorised by the Act or the regulations under the Act;

(d)  the Tribunal’s decision involved an error of law, being an error involving an incorrect application of the applicable law or an incorrect application of the law to the facts as found by the person who made the decision, whether or not the error appears on the record of the decision.

(3)  Further proceedings in the part of the matter that is remitted to the Federal Court of Australia to be as directed by that Court.

(4)  Costs of the part of the matter that is remitted to the Federal Court of Australia (including the costs of the application to the date of this order) to be reserved to that Court.

(5)  Otherwise adjourn application for order nisi to a date to be fixed on not less than three clear days notice in writing to the respondents.

(6)  Certify for Counsel.

Do you have any comment on that, Mr Mosley?

MR MOSLEY:   Your Honour, in other words, there are no particulars in the same manner in which your Honour dictated in the earlier matters?

HIS HONOUR:   Just so, yes.  Mr Vadivelu, have you any comment on those orders?

MR VADIVELU:   Yes, your Honour.  If I may seek your Honour’s indulgence.  I have to say there is a 417 application and also a 48B application in this matter.

HIS HONOUR:   But not, I think, mentioned in the proceedings as presently constituted, are they?

MR MOSLEY:   No, your Honour, I do not think so.

MR VADIVELU:   I may have to clarify from my counsel, Mr Krohn, that matter, your Honour.

HIS HONOUR:   Yes.  I think as the proceedings stand at the moment, there is only a challenge to the RRT.  That may lead to some difficulties but I think at the moment the only orders I would be minded to make are those that I have indicated.

MR VADIVELU:   I have no difficulties in anything, your Honour, other than what I have just mentioned to your Honour’s attention about 48B and 417.

HIS HONOUR:   Yes.  Well, as I say, those not being yet mentioned in the proceedings as constituted, I would not be minded to make any order in respect of those issues yet.

Very well, there will be orders in those terms.

One point, Mr Tracey, which just occurs to me, and I understand that your opponents have now largely gone, the forms of order that I have given attract 75(v) directly.  They therefore did not mention certiorari.  Should not the order mention certiorari as well?

MR TRACEY:   Yes, your Honour.

HIS HONOUR:   It is a bit much of me to add this after your opponents have gone but it is, I think, if anything - - -

MR TRACEY:   I do not think they will object, your Honour.

HIS HONOUR:   I do not think they will object, will they?

MR TRACEY:   I think not, your Honour.

HIS HONOUR:   Would you be so kind as to tell them what has transpired?

MR TRACEY:   I will.

HIS HONOUR:   And that I will add writ of mandamus or prohibition or certiorari or an injunction.

MR TRACEY:   I will do that, your Honour.

HIS HONOUR:   I had forgotten the infamous omission of certiorari from 75(v).

MR TRACEY:   Your Honours have been very good at making sure that it is still available.

HIS HONOUR:   Yes.  Well, I will adjourn then.

AT 10.50 AM THE MATTER WAS CONCLUDED