Plaintiff M117-2007 v Minister for Immigration & Citizenship

[2007] HCATrans 616

Replacement Transcript

[2007] HCATrans 616

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M117 of 2007

B e t w e e n -

PLAINTIFF M117/2007

Plaintiff

and

MINISTER FOR IMMIGRATION AND CITIZENSHIP

Defendant

Office of the Registry
  Melbourne  No M116 of 2007

B e t w e e n -

PLAINTIFF M116/2007

Plaintiff

and

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Defendant

REFUGEE REVIEW TRIBUNAL

Second Defendant

Applications for order to show cause

CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON THURSDAY, 18 OCTOBER 2007, AT 9.32 AM

Copyright in the High Court of Australia

__________________

MR J.D. MONTGOMERY, SC:   If your Honour pleases, I appear with my learned friend, MS N. KARAPANAGIOTIDIS, for the plaintiff.  (instructed by Asylum Seekers Resource Centre)

MR P.R.D. GRAY:   If the Court pleases, I appear for the Minister in both of the matters, M116 and M117.  (instructed by Australian Government Solicitor)

HER HONOUR:   Yes, Mr Montgomery.

MR MONTGOMERY:   Your Honour, applications were filed in this matter on 5 and 8 October in respect of seeking writs and injunctions in reference to a protection visa and a bridging visa.  By letter of 16 October 2007 the Australian Government Solicitor informed our instructors that it was the Department’s intention to remove the plaintiff from the jurisdiction and advised us that we should bring on an application on an interlocutory basis as a matter of urgency and that is what we are doing today.

HER HONOUR:   Yes.  So today is for the hearing of the application for interlocutory injunctive relief?

MR MONTGOMERY:   Yes, your Honour.

HER HONOUR:   Is it also a convenient time in which to perhaps make other directions in relation to the matters?

MR MONTGOMERY:   If that is convenient to the Court and to my friend.

HER HONOUR:   That is something that counsel might think about.

MR MONTGOMERY:   Yes.  If that is suitable, we would not disagree with that.  We are asking the matter eventually, if successful, be remitted to the Federal Court.

HER HONOUR:   Yes.  Is the application for interlocutory injunctive relief opposed, Mr Gray?

MR GRAY:   It is, your Honour.

HER HONOUR:   Yes, thank you.  Very well. 

MR MONTGOMERY:   Thank you, your Honour.  Your Honour, it is the submission of the plaintiff that in order to prevent his legal avenues being denied to him by his removal from the jurisdiction that the interlocutory injunction order restraining that be made by the Court.  It is our submission that it is a serious question to be tried, which is one of the requirements that your Honour should consider in making a decision about whether to grant the injunction applied for, it is a serious question when an unlawful non‑citizen is removed from the jurisdiction, thus denying that person his judicial review proceedings to be determined prior to his removal if, in fact, the plaintiff is removed from the jurisdiction.  In effect that denies him, as a matter of practicality, his rights to pursue the applications that have been lodged on his behalf.  So it is our submission that there is a serious question to be tried in relation to the issuing of the interlocutory injunction and that is it.

Secondly, your Honour then has to move on to, if you agree with that, is there a bona fide issue to be tried in respect of the applications that have been made.  It is our submission that in relation to both the applications that test is met.  Does your Honour have the applications there?

HER HONOUR:   Yes.  You can assume I have read the materials.

MR MONTGOMERY:   Yes, your Honour.  Would your Honour be assisted by a chronology of my client’s history in the country.

HER HONOUR:   Yes.

MR MONTGOMERY:   Does your Honour have the affidavits and exhibits of our instructor?

HER HONOUR:   Yes.

MR MONTGOMERY:   There are a couple of amendments that Mr Gray has suggested to the chronology and your Honour will see that they are written in by my ‑ ‑ ‑

HER HONOUR:   Yes, I do see that. 

MR MONTGOMERY:   It is of vital interest to our case that it is understood what has occurred to the plaintiff since he arrived in Australia and the distinction has to be made in respect of the two applications, that one is in respect of the protection visa and one is in respect of the bridging visa.  In essence, the substance of the applications in respect of the protection visa relate to the decision of the Tribunal in which the visa was refused.  In that it was argued that the plaintiff was fearful of being returned to China and one of the bases upon which he was fearful of that was his belief that bogus criminal charges would be launched against him.

At the time of the hearing by the Tribunal the Commonwealth had notice of charges that had been made against him, but they did not inform the Tribunal of that.  The submission will be that that, in effect, denied him some corroboration of his allegation that bogus charges would be proffered against him upon his return.  It is alleged that on 20 December 1996 he was involved in a kidnapping and a murder.  On 26 May 1997 it is said that a warrant of arrest was issued and in June 1997 Interpol contacted the Australian Federal Police and in June 1998 they received the arrest warrant.  This is all prior to the hearing by the Refugee Review Tribunal in December 1999.

None of that was disclosed to the Tribunal.  The plaintiff was unaware of that.  It will be our submission to support the issuing of the writs and the injunction that if he had been made aware of that, or if the Tribunal had, it would have provided support for his allegation.  He became aware of that in 2004.  As I understand one of the submissions from my friend will be that we are widely out of time in relation to challenging the Tribunal’s decision and clearly that is the case, but it is our submission that until he knew in June 2004 that there was an arrest warrant out for him, that was not something that he could have litigated although the government was aware of it.

There there becomes a gap between 2004 and today, during which time, until the lodging of the application in this case, our client did not pursue that issue.  What is said on his behalf there in relation to any abridgement application is that he was diverted with the issue of the bridging visa and his efforts were concentrated on that. 

It is our submission that the request to abridge time in relation to the protection visa will have merit on that basis, that it was not his fault that he was not aware of the arrest warrant until June 2004 and it is from that point on understandable, seeing he had concentrated his efforts towards the bridging visa, that the issue of the protection visa was put to one side.

HER HONOUR:   Just making sure I follow all of this, there are two decisions in relation to the bridging visa, the subject of the application for constitutional writs.

MR MONTGOMERY:   Yes.

HER HONOUR:   That is a decision on 7 June 2005 to cancel the visa and a decision on 18 October 2005 not to revoke that cancellation.

MR MONTGOMERY:   Yes, your Honour.

HER HONOUR:   Then what are the dates when the protection visa is dealt with?  That really commences in 1998.

MR MONTGOMERY:   On 17 December 1999 the Refugee Review Tribunal made the decision in respect of the protection visa.

HER HONOUR:   Yes, I see.

MR MONTGOMERY:   That is the decision that we are asking relief in respect of.

HER HONOUR:   Yes.  So there are really three decisions in respect of which relief is sought?

MR MONTGOMERY:   Yes, your Honour.

HER HONOUR:   Two concerning the bridging visa and one concerning the protection visa.

MR MONTGOMERY:   Yes, your Honour.

HER HONOUR:   Yes.

MR MONTGOMERY:   So it is our submission that the actual issue that we want ‑ ‑ ‑

HER HONOUR:   The matter we are dealing with today, the documents have all been filed in what I will call the bridging visa matter.  Is that correct?

MR MONTGOMERY:   And also the protection visa. 

HER HONOUR:   And also the protection visa.

MR MONTGOMERY:   Yes, your Honour.  It will be our submission that in respect of the protection visa application that the argument that we are seeking to make is bona fide and does have merit and that the submission that we will be making in respect of breaching the time has similar faculties.

HER HONOUR:   Yes.

MR MONTGOMERY:   Dealing with the bridging visa, which is a complicated path to follow, your Honour will see by the chronology that it begins when he enters the country and throughout 1997 and on 23 May 1997 he is granted the bridging visa.  If your Honour then goes to the bottom of the page, on 24 February 2004 the visa had expired in January 2001 and on a minor traffic matter in 2004 he was stopped by the police and this came up on the computer that his bridging visa had expired.  He was arrested because of that, detained.

As it turned out, if your Honour goes over the page to 23 May 2005, it was determined by the Department that in fact the expiry of the bridging visa had not been determined properly and it was still current and he was released.  It was then cancelled two days later on 25 May.  He then applied to the Migration Review Tribunal to consider the cancellation and that was successful on 7 June 2005.  On the same day, after the success of that application, the Minister cancelled the visa.

The Migration Review Tribunal was extremely critical of the documentation that had been provided to support the allegation that the plaintiff was wanted in China.  Apart from an unsigned arrest warrant there has been very little other information by way of documentation provided.  The plaintiff has never been served with a brief, never been contacted by the Chinese authorities or sought to be interviewed by them while he has been here in custody and the Migration Review Tribunal was scathing of the documentation and, in essence, it was for that reason that the Tribunal upheld the visa.

On the same day the Minister cancelled it after that decision and in it, on a number of occasions, the Minister places great weight on the fact that the plaintiff had done nothing to query, investigate, et cetera, the arrest warrant or the circumstances of what had happened in China, somehow casting an onus on the plaintiff quite opposite to the onus that is cast on anyone in this country charged with a criminal offence to do something about it.  The Minister on I think it is four occasions in her decisions refers to that.  The Minister decided that he failed the character test and then decided to revoke the visa.

HER HONOUR:   Just come back for a moment if I may, what was the decision of the Refugee Review Tribunal in relation to the protection visa?  Can you point me to the exhibit?

MR MONTGOMERY:   To the protection visa?

HER HONOUR:   Yes, the decision.

MR MONTGOMERY:   That was refused on 17 December 1999.

HER HONOUR:   Yes.  I was just asking you about whether or not you can point me to the decision.

MR MONTGOMERY:   Your Honour should have an annexure list with a folder of annexures and it is annexure 1.

HER HONOUR:   Annexure 1.  Thank you.

MR MONTGOMERY:   These are the annexures to my instructor’s affidavit, your Honour.

HER HONOUR:   And it is No 1, is it?

MR MONTGOMERY:   Yes.

HER HONOUR:   Yes, thank you, Mr Montgomery.

MR MONTGOMERY:   What I was referring to about whether he would be accused of crimes is at the bottom of page 8.

HER HONOUR:   Yes, I have that, thank you very much.

MR MONTGOMERY:   I was going to the Minister’s reasons and the numerous times that the Minister, for example – the annexure of reasons is at No 3 of the annexures and in paragraph 11:

The nature of [Plaintiff M117/2007’s] alleged conduct in the absence of any evidence to indicate that he is attempting to rectify or dispute these allegations with PR authorities is such that I gave this consideration great weight.

The same comments are made in paragraph 5 and also in paragraph 18. 

HER HONOUR:   Yes.

MR MONTGOMERY:   What then happens is that the Minister is asked to reconsider the decision and that failed.  It is also apparent that in the Minister’s reasons there were confidential materials provided to the Minister which were said to be protected under section 503A of the Migration Act and that is set out in paragraph 3 of the Minister’s reasons.  Now, that is not, as is submitted by us, as it should have been provided to the plaintiff following that decision.  It will be submitted under section 501C(3) the Minister has an obligation to provide particulars and it will be submitted that that is one of the particulars that should have been provided and it is not covered by the other provision in the Act which, in our submission, only applies to an officer of the Department and not to the Minister not to divulge such material.  There is a case on that and that will be litigated at the hearing, if we are allowed to.  That is under section 503A(1).

HER HONOUR:   Yes.

MR MONTGOMERY:   On 12 October 2005 the Minister refused to revoke the decision.  The matter is then taken to the Federal Magistrates Court on 26 May 2006.  It is taken to the Magistrates Court on a very limited basis.  The Magistrates Court reason is at annexure 6 of your Honour’s folder.

The application was to have either or both the decisions set aside and reconsidered and although there are two issues set out to be litigated, in effect, as I read them they are the one issue, that is, whether there is a real risk that the applicant would face the death penalty if returned to the Republic of China.  The plaintiff was unsuccessful in that argument so the application was refused.  The applications made here in relation to the bridging visa are put on a different basis, as is set out in the application that your Honour has.  It is the first claim that what the Minister did was a disguised extradition.  At no stage during the time that my client has been in Australia has the Chinese Government applied to extradite him.

It is also put in the application that, in relation to the point I mentioned previously, the confidential information that had been provided to the Minister should have been provided to the plaintiff.  That was not done.  It is also submitted that there is a lack of reliable evidence to support the finding that the plaintiff did not pass the character test and it is also submitted that the Minister took into account that irrelevant consideration as to whether the plaintiff was seeking to address the allegations through the

PRC legal system.  It is our submission that they are all grounds of substantial merit to be put in relation to the application. 

The response from the Department or the Minister is that the plaintiff is estopped from raising those matters again because of the decision in the Federal Magistrates Court.  It is our submission that that is probably right, that it is the same issue.  It is the same cause of action, that is, the setting aside of the Minister’s decision is being sought to be litigated again but for very different reasons and it is our submission that in normal circumstances we would be estopped from seeking to litigate it again but in this case it is our submission that there are special circumstances that would enable the Court to hear the matter and decide whether it has any merit or not.  Is your Honour familiar with the case of Anshun?

HER HONOUR:   Yes, I was just going to mention it sounded like an Anshun estoppel point.

MR MONTGOMERY:   Yes.  It is our submission that we fit into the category mentioned in that of special circumstances.

HER HONOUR:   Yes, I understand your point.

MR MONTGOMERY:   Does your Honour wish me to outline what we say the special circumstances are?

HER HONOUR:   I do not think it will be necessary to do that.

MR MONTGOMERY:   I then have nothing else to say, your Honour.

HER HONOUR:   Yes, thank you.  Yes, Mr Gray.

MR GRAY:   If the Court pleases, I have a very brief outline to hand up.

HER HONOUR:   Thank you, Mr Gray.

MR GRAY:   At the same time it might be convenient if I hand up a bundle of the authorities referred to in that outline and I will step through them.  I will let your Honour read the outline.  That might be of assistance.

HER HONOUR:   Yes, thank you.

MR GRAY:   I trust that is of assistance to your Honour in showing your Honour where I am going with my submissions.

HER HONOUR:   The only concern I have, Mr Gray, is that matters you are dealing with there might better be dealt with on a hearing in relation to the applications for an order to show cause rather than on today’s application which is for an interlocutory injunction which might be granted in combination with a timetable for directions which could possibly result in the determination of the applications within a very short period of time, so I raise those matters for your consideration.

MR GRAY:   Thank you, your Honour.  Your Honour will see that in paragraph 3 at the end of the outline of submissions I have raised the issue of the intersection of the delay matters and the Anshun and abuse of process matters with the principles to be applied by the Court on an application for an interlocutory injunction.

HER HONOUR:   Yes.  Of course, delay is commonly very important, certainly that is right in all commercial contexts, but it has a different aspect possibly in circumstances where one is speaking of the removal of an unlawful non‑citizen or, for example, if one were speaking of the liberty of a subject.

MR GRAY:   I can only put it on this basis, your Honour, that your Honour is not constrained from considering those delaying Anshun and abuse matters at this point, but neither, could I submit to the Court ‑ ‑ ‑

HER HONOUR:   You are no doubt right about that, Mr Gray.  I am not constrained, but I think that has to be considered in the context that a relatively speedy hearing in relation to applications to show cause can be provided by a court.

MR GRAY:   Outside the matters I have addressed in writing there is nothing I can add at this point, your Honour. 

HER HONOUR:   Part of the consideration involves the fact that this matter has been brought on very quickly.  In fact, the time limits under the Rules, even in relation to the summons filed yesterday, probably need to be abridged although you perhaps make no point about that.  It seems from the rather complex background and history that an appropriate course, providing people can meet a strict timetable, would be to grant interlocutory injunctive relief which is granted in the context of quite a detailed timetable which has in prospect a hearing date for this matter where there is more time for everybody to give ample consideration to the points made by both parties, including, of course, these very important points you presage in your very helpful written outline.

MR GRAY:   If your Honour pleases.

HER HONOUR:   Perhaps that brings me then, Mr Montgomery, to asking you about the times that would be required for the filing of affidavits in support of the applications in both matters and should both matters be run in tandem and heard together?  I would have thought so.

MR MONTGOMERY:   Yes, your Honour, yes, clearly.

HER HONOUR:   The delay is considerable so are you able to prepare the affidavits to be relied on in support of your applications within one week or two weeks?  Can you give me some understanding of what can be done?

MR MONTGOMERY:   Two weeks for affidavits I am told, your Honour.

HER HONOUR:   So that would be by 8 November?

MR MONTGOMERY:   Yes.

HER HONOUR:   Mr Gray, would you require two weeks in order to prepare the material in opposition to the applications?

MR GRAY:   I would be grateful to be given it, your Honour.  We might not need it all, but I would be grateful.

HER HONOUR:   Yes, very well.  That would take us up to 22 November.  I would be inclined to order each party file and serve outlines of argument within a very short space of time after the completion of the filing of the material, say, three days, something of that order.  That should be quite possible, should it not?

MR GRAY:   Yes, your Honour.

HER HONOUR:   So if I say that filing and service of outlines should take place by Tuesday, 27 November, what I would have in mind then would be to have both applications heard on Friday, 30 November and the interlocutory injunction could be framed to run at least until 30 November or further order and there may be an obligation on the day on the applicant to make whatever applications may be sought in relation to whether there is a need for any further time.  That seems a reasonable course.

MR GRAY:   Yes, your Honour.

MR MONTGOMERY:   Yes, your Honour.  Is that going to be in this Court or the Federal Court, your Honour?

HER HONOUR:   This is an application for an order to show cause.  Normally the direction would bring the matter to a state of readiness for hearing.  I have not heard anything from anybody about remission at the moment.  We are talking about the distinctions between orders nisi and orders which are not ‑ ‑ ‑

MR MONTGOMERY:   Yes, your Honour.  We are happy for it to stay here if everyone else is.

HER HONOUR:   A matter like this would normally be remitted to the Federal Court.  What do you say, Mr Gray?

MR GRAY:   I do not have any instructions, your Honour, or any submission to make on remitter at this point.  The matter, as it is currently framed, is obviously a process in this Court and it is an interlocutory injunction application in relation to the subject matter of those applications.

HER HONOUR:   Yes.

MR GRAY:   That being the case, if your Honour is foreshadowing a tight timetable, as your Honour is, and that is part of a premise for dealing with the matter, as your Honour is dealing with it, then it seems incongruous to impose on the Federal Court that timetable.  I am not sure that it can be done.  It would of course be a matter for the court, but there would be some doubt as to whether the timetable could be imposed on the Federal Court and the matter remitted on the basis of that timetable.  There seems to be some difficulty in doing that.

HER HONOUR:   The argument for remitting the matter to the Federal Court is that then this Court has the benefit of the reasons in the Federal Court.

MR GRAY:   Indeed.

HER HONOUR:   It has all the hallmarks of a matter which should be remitted to the Federal Court.

MR GRAY:   Viewed as an isolated proposition, I would have nothing to say against remitter to the Federal Court.  It is just the complication of your Honour setting a timetable and the timetable being part of your Honour’s basis for granting interim injunction at the moment and then remitting the proposal or the hypothetical course being that the matter be remitted, together with that timetable, to the Federal Court.  It is that last step that I am not sure can be done.

HER HONOUR:   It would be possible, I suppose, to grant an interlocutory injunction today and remit the matter to the Federal Court.  I was only suggesting a timetable to try to really assist the parties have the matter in a state of readiness, having regard to the previous delays.  It is my quite strong view that it is an appropriate matter to remit to the Federal Court. 

MR GRAY:   Indeed, your Honour.

HER HONOUR:   I was a judge of the Federal Court, as you will recollect, and I would anticipate that there would be no difficulty in the Federal Court being able to provide a hearing date, if not on the precise date – if it is remitted, the hearing date could be left in abeyance and that is a matter to be dealt with by the Federal Court obviously in the context that the material will be completed so far as filing and serving is concerned by a particular date in November, then it would be a matter for the Federal Court to extend any times as necessary in relation to the interlocutory injunctive relief.  That seems an appropriate course.

MR GRAY:   Yes, your Honour, and your Honour has a power to remit.  From recollection, and I do not have the section in front of me, but subject to such directions as the Court sees fit.  So there is some sort of direction making power and I will retrieve that in a moment.

HER HONOUR:   In other words, there is nothing concrete to making directions in relation to a speedy timetable in the context of an application for interlocutory injunctive relief and remitting the matter to the Federal Court for final determination which would obviously be on a hearing date that is an appropriate hearing date having regard to the consent of the parties to have the matter ready in accordance with the directions which I have raised as possible directions with both of you today.

MR GRAY:   Yes, that must be so, your Honour.  Your Honour would not be proposing to fix a date in the Federal Court obviously, so there would be no difficulty there.

HER HONOUR:   No, that is right.  It would be better to leave that to the Federal Court.  As I understand it, certainly Mr Montgomery opened it on the basis that it is an appropriate matter for remission to the Federal Court, as indeed it is, because it has some sui generis aspects which means that if the matter goes further, then this Court has the benefit of the reasons of the Federal Court.  It has all the hallmarks of something that will be a matter which may take, it is possible anyway, more than a day in the Federal Court.

MR GRAY:   There is nothing I would seek to say against the proposal to remit, your Honour.

HER HONOUR:   Yes. 

MR GRAY:   Your Honour, section 44(1) of the Judiciary Act gives your Honour the power and it includes power to make the order for remitter “subject to any directions of the High Court”.  If your Honour pleases.

HER HONOUR:   Yes, thank you.  That is most helpful, Mr Gray.

MR MONTGOMERY:   Can I just explain, I did open on remitting to the Federal Court and I was seduced by the imminent hearing date that your Honour offered, because if it does not get on this year, my junior and I will disappear for a year and our client will not have the benefit of our services, so we are most anxious that it be heard prior to Christmas.

HER HONOUR:   I understand that and you will appreciate, Mr Montgomery, that the Federal Court is famous – if I could resort to that adjective – for being able to accommodate matters of this kind with the aspect of urgency that has been identified and accordingly I would have every confidence that a remission, together with directions which impose speedy preparation, would be an appropriate course in this matter.

MR MONTGOMERY:   Thank you, your Honour.

MR GRAY:   Your Honour, my learned instructor has raised a point on which she would like to seek instructions.  I would be asking for a great indulgence obviously, but could the matter be stood down for a very short time?

HER HONOUR:   Very short time.  Would half an hour be sufficient time or would less be sufficient?

MR GRAY:   Probably less would be sufficient and I would be very grateful.  Fifteen minutes would probably be enough.

HER HONOUR:   All right.  Why do I not adjourn on the basis of the need for having 15 minutes and you could contact my associate if any longer is required.

MR GRAY:   Thank you, your Honour.

AT 10.11 AM SHORT ADJOURNMENT

UPON RESUMING AT 10.55 AM:

HER HONOUR:   Yes, Mr Gray.

MR GRAY:   Thank you for that indulgence, your Honour. 

HER HONOUR:   Not at all.

MR GRAY:   My learned instructor raised a complication arising from the Migration Litigation Reform Act 2005 No. 137 2005.  That Act, Schedule 1, inserted a provision, section 476A – and, incidentally, I should mention, 476B as well – which have the consequence that this Court should not and, on one view, cannot remit the RRT related proceeding in M116 to the Federal Court and that if remitter is proposed, it is really the Federal Magistrates Court that is the proper destination of the remitter order.  Could I hand up section 476A and 476B. 

HER HONOUR:   What about the desirability of the matters being heard together, Mr Gray?

MR GRAY:   Yes.  My learned friends will address your Honour on that.  There is at least one possibility as to that but I would prefer not to address your Honour because I do not have instructions on it.

HER HONOUR:   It is really not so much their problem, but, I mean, they are raising the desirability of hearing both matters together.  When you have two different matters which are similar but somehow not being heard together, one prospect, of course, is to stay one pending the determination of the other or there may be other possibilities.

MR GRAY:   Yes, your Honour.  I would agree with the proposition that my friend should take the running of that issue.

HER HONOUR:   Yes.

MR GRAY:   Section 476A is to apply by reason of item 17 of the schedule of the amending Act I mentioned to proceedings which are commenced on or after 1 December 2005 and your Honour will see that section 476A provides that:

the Federal Court

(1)      Despite any other law . . . has original jurisdiction in relation to [a concept called] a migration decision if, and only if –

and then there are a number of possibilities enumerated and none of those possibilities encompasses an application for review of an RRT decision of the kind which is the subject matter in M116.  For good measure, your Honour, section 476B(1) provides that:

Subject to subsection (3), the High Court must not remit a matter, or any part of a matter that relates to a migration decision to any court other than the Federal Magistrates Court.

Subsection (3) feeds back into two of the possibilities that are enumerated in 476A and which are inapplicable in this case.  So that, subject to one point, is strongly suggestive that the Court should make the order for remitter to the Federal Court.  The one point is this, what is a migration decision?  It is our submission that it encompasses a decision of the kind which is the subject of M116.  It is a complex argument because “migration decision” is defined by reference to the concept of privative clause decision and purported privative clause decision and non‑privative clause decision.  However, if a decision predating the privative clause regime had not been the subject of commencement of proceedings for judicial review prior to the commencement of that privative clause regime, it became ‑ ‑ ‑

HER HONOUR:   Is it not a migration decision?

MR GRAY:   Yes, it is a migration decision.  It becomes characterised as a ‑ ‑ ‑

HER HONOUR:   As a migration decision.

MR GRAY:   Yes, if your Honour pleases.  That is the point I took instructions on during the interval, if your Honour pleases.

HER HONOUR:   Yes.  I am indebted to you, Mr Gray, for taking those instructions.

MR GRAY:   Thank you, your Honour.

HER HONOUR:   Yes, Mr Montgomery.

MR MONTGOMERY:   My learned junior will address your Honour on this.

HER HONOUR:   Yes.

MS KARAPANAGIOTIDIS:   Thank you, your Honour.  Your Honour, we do not take issue with Mr Gray’s characterisation or his analysis of this section.

HER HONOUR:   So you agree that the subject matter of 116 is a migration decision?

MS KARAPANAGIOTIDIS:   Yes, your Honour.

HER HONOUR:   And that that is subject to section 476B(1)?

MS KARAPANAGIOTIDIS:   It appears to be.  Your Honour, certainly though our position, as you have stated, is that it is obviously desirable for the two matters to proceed and to remain together.  It is not a matter for your Honour today, but quite peculiarly 476A(1)(a) provides that:

The Federal Magistrates Court transfers a proceeding pending in that court in relation to the decision to the Federal Court under section 39 of the Federal Magistrates Act –

So it may be, and I am just foreshadowing, that this matter is remitted to the Federal Magistrates Court and we have the migration bridging visa decision in the Federal Court, that we may make application to have the RRT matter lifted.

HER HONOUR:   Yes, to keep the matters being heard together.  So that the provisions of 476B(1) will be satisfied leaving open the possibility that the applicant seeks to take advantage of the provisions under section 476A(1)(a).

MS KARAPANAGIOTIDIS:   On my reading it appears to be open to us and I foreshadow perhaps that occurring in the future, but, your Honour, I am not in a position ‑ ‑ ‑

HER HONOUR:   You are proposing then that the remittal from this Court under section 44(1) of the Judiciary Act be a remittal of the bridging visa matter to the Federal Court, the Melbourne registry, and that matter 116 which concerns the protection visa ought to be remitted to the Federal Magistrates Court, Melbourne registry, that the directions which this Court can make under the provisions of section 44(1) of the Judiciary Act would be the same directions for each of the two matters and perhaps rather than doing one set of directions they should just be separate directions in relation to each of the two matters.  Any interlocutory injunction would be granted in each of those matters until hearing and further determination or further order is probably the best way of providing terms for that, and not to impose any specified time which may put artificial constraints on the matter, but the timetable being set here will indicate to each of the Federal Magistrates Court and the Federal Court of Australia that a speedy hearing would be highly desirable, that being a matter of course for any further direction by each of those courts in the separate two matters.

MS KARAPANAGIOTIDIS:   Precisely, your Honour, given that the matters are being split, we would agree with what you have said about setting directions but certainly nothing specific in the event that there are some unforeseen complications in terms of having the matter actually heard, having a directions hearing, having it lifted.

HER HONOUR:   One possibility would be to ask the parties to prepare minutes of orders.  It would not take very long, I  think.  As to the injunction I have already indicated the terms in which that would be made.

MS KARAPANAGIOTIDIS:   Until further order, your Honour.

HER HONOUR: It would be until the further order of the court or it might recite “or hearing or determination by the relevant court” because there would be two different courts. There is probably the need to abridge time under rule 28.02.2 of the High Court Rules for the filing and serving of the summons dated 17 October.

MS KARAPANAGIOTIDIS:   That is so, your Honour, yes.

HER HONOUR:   So that would be the first.  We have already discussed timetabling and as I understood it there was no real objection to my suggestion of dates.  I think I suggested 8 November for the plaintiff’s affidavits to be filed, two weeks after that for the defendant and then for exchange of outline of submissions within a further three days and I understood none of that was contentious.  Then the proceedings in the respective matters would be remitted to the respective courts indicating the Melbourne registry and then there would be an order that the proceedings continue in those respective courts as if the steps already taken in the proceedings in this Court had been taken in those respective courts, the Registrar of this Court to forward to the proper officer of that court photocopies of all documents filed in this Court. 

The costs of the summonses – I think there are two of them of yesterday, but they would be in these respective sets of orders and directions – will be the costs in the proceeding.  The costs of the proceeding to the date of the respective remittals or remission, including the costs of the orders in respect of which you are preparing minutes would be, according to the scale, applicable to proceedings in this Court and thereafter according to the scale applicable in the respective courts to which the remissions will be made and to be in the discretion of those respective courts.  Can anyone think of anything else that has been covered in the discussions?

MR GRAY:   Your Honour, it might not have been expressly covered in the discussions but the Minister would seek to preserve the effect of the time limit provisions of the High Court under order ‑ ‑ ‑

HER HONOUR:   Yes, that is why I have made no orders at all in relation to that part of your written outline of argument which dealt with the delay issues because the applications in respect of those matters for requisite extensions of time will be part of the preliminary aspects of the arguments of the applicants and it seems to me, since I am not dealing with the merits but only with the serious question to be tried and the balance of convenience issues today, that matter ought to be left thus leaving it open to the courts to which the matters are respectively remitted to make a determination on those matters.  That seems the appropriate course, Mr Gray.

MR GRAY: In my submission, it is, your Honour, and of course we have what your Honour has said on transcript, but to formalise it I suggest that in your remitter order in each matter - if the court thinks fit - that your Honour includes the words “subject to the High Court Rules 2004 or to be determined”.

HER HONOUR:   Yes, that is another reason why I think it is an appropriate course to ask the parties to draft minutes of the order.  I should say by way of a preliminary in relation to that request that I am satisfied on the material before me that there is a serious question to be tried, and that on the balance of convenience it is appropriate to grant the interlocutory relief sought together with directions designed to facilitate a speedy hearing of each of the matters.

MR GRAY:   If your Honour pleases.

HER HONOUR:   Those minutes can be the subject of consideration during the course of the day if you wish.  In other words, I am not asking you to do them immediately in longhand because you might want to take some care including over the very matter you have just mentioned.  The minutes ought to come to my associate as agreed minutes and the orders can be made subsequently in that context.

MR GRAY:   Thank you, your Honour.

MR MONTGOMERY:   Thank you, your Honour.

HER HONOUR:   Nothing further?

MR GRAY:   No, your Honour.

MR MONTGOMERY:   No, your Honour.

HER HONOUR:   Thank you.  Adjourn the Court.

AT 11.11 AM THE MATTER WAS CONCLUDED