Perchine, Ex parte MIMA

[2002] HCATrans 43

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry         
  Sydney  No S228 of 2001

In the matter of -

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

First Respondent

GILES SHORT sitting as the Refugee Review Tribunal

Second Respondent

JOHN GODFREY sitting in his capacity as acting Principal Member of the Refugee ReviewTribunal

Third Respondent

Ex parte –

ANDREI PERCHINE and EKATERINA PERCHINA

Applicants/Prosecutors

McHUGH

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON WEDNESDAY, 20 FEBRUARY 2002 AT 10.15 AM

Copyright in the High Court of Australia

__________________

MR C.D. JACKSON:   May it please the Court, I appear for the applicant.  (instructed by Roach & Halligan)

MR M.A. WIGNEY:   If it please the Court, I appear for the first respondent.  (instructed by Clayton Utz)

HIS HONOUR:   I have a certificate from the Deputy Registrar in which he states that he has been informed by the solicitor for the second and third respondents that they do not wish to be represented at the hearing of this matter and will submit to the order of the Court save as to costs.

I have read the submissions and subject to what you would say, Mr Wigney, my inclination is to grant an order nisi in this matter.  Is there anything further you want to say other than – it is a very low hurdle.

MR WIGNEY:   Yes, I accept that and I think it is fair to say that we have put everything we really can put in the written submissions in as fulsome way as we possibly can.

HIS HONOUR:   Yes.

MR WIGNEY:   So unless there is anything your Honour ‑ ‑ ‑

HIS HONOUR:   No – well, there is one other matter.  It has occurred to me that you have a ground in relation to bias.  You have a ground in relation to failing to give notice.  It may be ‑ although this is a matter for Mr Jackson ‑ that you ought to give some consideration as to whether or not, given the type of ground that there has been a constructive failure to exercise jurisdiction.  I say that by reason of the fact that all these statements have been rejected and there has been no inquiry, for instance, of the Russian newspaper or the journalist. 

Anyway, it is a matter that Mr Jackson could give some thought to, that although on the face of it the Tribunal has purported to exercise its jurisdiction, it may be that it has constructively failed to exercise it.  But that is a matter for Mr Jackson, but if he was so inclined, I would give him leave to add such a ground, if he wished to.  I would give him leave to file his amended order ‑ ‑ ‑

MR WIGNEY:   That is the one that raises unreasonableness as an additional ground.

HIS HONOUR:   Yes.  Where is the ‑ ‑ ‑

MR WIGNEY:   Sorry, there is a further amended – I was going to inquire whether your Honour ‑ ‑ ‑

HIS HONOUR:   Well, I saw a document at some stage ‑ ‑ ‑

MR WIGNEY:   Yes.  Perhaps I will let Mr Jackson deal with it.

MR JACKSON:   Yes, your Honour.  I have a copy of the further amended draft order nisi that I could hand up, if that would be of assistance.

HIS HONOUR:   Right, thank you.  Is this in addition to the proposed further amended draft order or ‑ ‑ ‑

MR JACKSON:   I have just removed the “proposed” and ‑ ‑ ‑

HIS HONOUR:   I see.  So it is the same document, is it?

MR JACKSON:   Not presumptively, but if leave were granted to file it.

HIS HONOUR:   Yes.  Mr Jackson, I am not following this last order that you seek – the direction you seek on page 3:

IT IS DIRECTED THAT notice be given to the second respondents –

well, that must be a mistake –

requiring them to show cause –

on the such‑and‑such day –

why the order nisi herein should not be remitted to the third respondent –

What is that?

MR JACKSON:   That is obviously a mistake.

HIS HONOUR:   It certainly is a mistake.

MR JACKSON:   Yes.

HIS HONOUR:  

or, alternatively, calling on the said respondents to sign a consent pursuant to Order ‑ ‑ ‑

MR JACKSON:   I am not sure.  I suspect that is the danger of word processors, your Honour.

HIS HONOUR:   It certainly is.

MR JACKSON:   Not directing proper attention to that part of the draft order.

HIS HONOUR:   Yes.  Well, I am prepared to give you consent to file the document described as the further amended draft order nisi but with that paragraph “IT IS DIRECTED THAT” being deleted from the document.

MR WIGNEY:   Your Honour, can I raise one matter in relation to that document?

HIS HONOUR:   Yes.

MR WIGNEY:   Ground 2, which is the additional ground that has been added by this amendment, refers to:

Findings of fact which were so unreasonable that no reasonable Tribunal –

could have made them.  It is essentially unparticularised as to what are those findings of facts.  I understand from my learned friend’s written submissions that the findings of facts are the adverse credibility finding and the rejection of various claims based on it.  But we would request some particulars in relation to that so that is not effectively open slather.

HIS HONOUR:   Yes.  Well, it would not surprise me if they particularised every ground.  I mean, the Tribunal has just rejected every matter put forward, even matters that there was no contest before the Delegate about.  But I think the point is well taken, Mr Jackson.  I think that you should particularise those matters. 

I think the best way of handling this is I will grant leave to file a further amended draft order nisi upon the understanding that you will particularise ground 2, Mr Jackson, and delete the “IT IS DIRECTED” clause that appears on page 3 of that document.  I will extend the time for making an application for mandamus and certiorari to tomorrow, which is 21 February 2002.  I think you will need that, having regard to the fact that you are proposing to amend this particular document.

MR JACKSON:   Yes, thank you, your Honour.

HIS HONOUR:   The order nisi can be dealt with by me in chambers, so if it can be filed in the Registry and I will make the formal orders in chambers.

MR WIGNEY:   If the Court please.

MR JACKSON:   Thank you.

HIS HONOUR:   Yes.  I certify this is a proper matter for the attendance of counsel in chambers and the costs of this application are costs in the cause.  Is there anything further required?

MR JACKSON:   No, your Honour.

HIS HONOUR:   Very well.  Adjourn the Court.

AT 10.26 AM THE MATTER WAS CONCLUDED