Re Min for Immig & Multicultural Affairs & Anor, Ex parte Thambythurai

[1997] HCATrans 187

TRANSCRIPT
OF PROCEEDINGS
AUSCRIPT
Victoria
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IN THE HIGH COURT OF AUSTRALIA

MELBOURNE OFFICE OF THE REGISTRY

No. M47 of 1997

In the matter of an application for writs of mandamus or prohibition or an injunction against

THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

(First Respondent)

- and -

J. VRACHNAS

(Second Respondent)

Ex parte

V.A. THAMBYTHURAI

(Prosecutor/Applicant)

DAWSON J

AT MELBOURNE, TUESDAY THE 22ND DAY OF JULY 1997

AT 9.37 AM

MR T.V. HURLEY:   I appear on behalf of the prosecutor applicant in this proceeding (instructed by Barlow and Company).

MR R.R.S. TRACEY QC:   I appear on behalf of the Minister (instructed by the Australian Government Solicitor).

HIS HONOUR:   Mr Hurley.

MR HURLEY:   Your Honour, I took the liberty yesterday of delivering to the Registry an outline of the submissions and authorities and delivering also a copy to my learned friend, which sets out the submissions that the prosecutor application seeks to make.

HIS HONOUR:   You are seeking to extend the jurisdiction of the Federal Court as it were, are you not?

MR HURLEY:   As it were, your Honour, we are seeking remitter, so that the Federal Court when it deals with part 8 application, may also consider the - may ought to exercise on remitter, the powers remitted to it, at common law.

HIS HONOUR:   Now, there is an Act referred to in your list of authorities, which is the Law and Justice Legislation Amendment Act (1997).

MR HURLEY:   Your Honour, I have a copy of the entire Act, yes, your Honour. 

HIS HONOUR:   That Act has been passed, has it?

MR HURLEY:   Yes, your Honour.

HIS HONOUR:   What does it say, because I have not seen it?

MR HURLEY:   I apologise.  Your Honour, the relevant part is set out in our submissions at page 9.  It gives - it amends the Judiciary Act, your Honour, to extend the original jurisdiction of the Federal Court.  If I can hand to your Honour's Associate, at page 26.  It introduces section 39B(1A) paragraph (c), relevantly, to extend the original - to keep the original jurisdiction of the Federal Court in any matter, (c):

... arising under any laws made by the Parliament.

HIS HONOUR:   Well, how is that relevant?  I mean, there is Federal jurisdiction - Federal Court jurisdiction under 39B did extend to prerogative relief, anyway, did it not?

MR HURLEY:   It did, your Honour.

HIS HONOUR:   Yes.

MR HURLEY:   This is an enactment that has been passed after Part 8 of the Migration Act, and to the extent that section 485(1) of the Migration Act states that the jurisdiction given to that Court by section 486 provides:

... the Federal court does not have any jurisdiction in respect of judicially reviewable decisions.

The submission that we advance is that the subsequent Act which has given the Federal Court original jurisdiction over any matter arising under any law of a Parliament, full stop, and without exception, must be taken to have impliedly repealed the effect of section 485(1).

HIS HONOUR:   But we, or at least I had taken the view that the Federal Court on remitter had jurisdiction anyway, so this was unnecessary. 

MR HURLEY:   Well, your Honour, this puts it, we would say, beyond doubt that ‑ ‑ ‑ 

HIS HONOUR:   Yes, I see.

MR HURLEY:   ‑ ‑ ‑ it has - the Federal Court has a general original jurisdiction under section 439B(1A) paragraph (c) in addition to what it formerly had under section 39B(1) in any event.

HIS HONOUR:   Yes.  So that one thing is clear, it cannot have the effect of restricting the jurisdiction on the Federal Court.

MR HURLEY:   No, your Honour.  No.

HIS HONOUR:   I had been under some impression, probably from reading the newspapers, that there was some attempt, some legislative attempt to restrict this avenue of reviewing decisions under the Migration Act, so as to achieve the position which is apparently sought to be achieved by the restrictions originally imposed.

MR HURLEY:   Your Honour is correct, there is a Bill ‑ ‑ ‑ 

HIS HONOUR:   Yes.

MR HURLEY:   ‑ ‑ ‑ that I do not have in Court, to that effect.

HIS HONOUR:   It is just a Bill, it is not an Act.

MR HURLEY:   It is a Bill, and I do not even know - I cannot ‑ ‑ ‑ 

HIS HONOUR:   And there would be constitutional difficulties about that.

MR HURLEY:   Your Honour, I do not even know whether the Bill has been introduced.  It has been circulated, I believe, and I ‑ ‑ ‑ 

HIS HONOUR:   Yes, well, we need not worry about it, it is not law.

MR HURLEY:   Your Honour, the key point that the applicant seeks to agitate in the proceedings is the effect - it is set out, your Honour, in the -relevant point is the finding of the Tribunal that the applicant had access to government officials in his home country, at their residence, which is a fact that in our submission must poison the mind of the Tribunal considering his application, and is a fact that is a misconstruction or mis-application, mis-recollection of the evidence given by the applicant.  Before the Tribunal, the applicant said that he had met an opposition man at the opposition man's residence, and the opposition man had 12 bodyguards.  In the reasons for the Tribunal, that meeting has become a meeting of the applicant with a government official, your Honour. 

HIS HONOUR:   What did the Tribunal find originally?

MR HURLEY:   The Tribunal's finding was this sentence, your Honour:

He, the applicant described to the Tribunal one occasion when he wished to meet a Minister of the Government and had to go to the Minister's residence as there were too many complications with security arrangements for the meeting to take place in a hotel.

The evidence is to this effect, your Honour, VAT9 at page 25 of the transcript, that - halfway down, your Honour, at VAT9, at page 25 of the transcript.  There is the line beginning:

False security.  In fact, I don't know ...

and then there is something missing:

... is a leading international lawyer.  I wanted to meet him on some business work.  He is an opposition man.  Still he had 12 security guards, and he said, he can't come to the hotel because of all the security people have to come.  I had to go and meet him at his residence.  So even if he travels there are security guards.  That is for the opposition.

And then there is reference to millions of rupees being spent on security.  The submission of the applicant is that the finding of the Tribunal in its reasons at page VAT10 - at exhibit VAT10 at reasons, page 9 ‑ ‑ ‑ 

HIS HONOUR:   Just wait until I find that.

MR HURLEY:   In exhibit VAT10. 

HIS HONOUR:   Yes, well, read it to me, Mr Hurley.

MR HURLEY:   I have got my instructor's copy, your Honour.  The Tribunal, just above the asterisk is a line:

He described to the Tribunal one occasion when he wished to meet a ...

then there is an asterisk, your Honour:

... Minister of the Government, and had to go to the Minister's residence as there are too many complications with security arrangements for the meeting to take place in a hotel. 

The sentence then follows:

He spoke of another venture where he stood to earn a half per cent commission on a multi million dollar project and he referred to regular liaison with a government board of investment and senior officials.

Is a separate point, your Honour.  The evidence is to the effect that while the applicant did speak of a commission, his regular liaison with a government board of investment and senior officials, the evidence of that is to the effect, at the transcript, that he had lodged applications with a government investment board.

HIS HONOUR:   Yes.

MR HURLEY:   Which, again, your Honour - which is a slightly lesser - it is a second point that the applicant seeks to raise.  That the most critical one is the - in the discussion and findings of the Tribunal, is its finding that the applicant described to the Tribunal this occasion when he wished to meet a minister of the government, when the fact is, and the evidence is that he in fact was speaking of an opposition man, and not the government, and the applicant's submission to the appropriate court will be, that that finding of the Tribunal is not one that is open on the evidence and also one of profound in an application such as this, if the Tribunal has it in its mind that an applicant for refugee status is able to visit ministers of the government in their residence, then it could only, in our submission, have an incalculable effect on that Tribunal's approach to the decision.

The reason that we seek remitter, your Honour, and at this stage is that the point became - the question arose as to how this point could be put before the Federal Court, and there are limits in any jurisdiction on challenging findings of fact, as no doubt your Honour is aware, and they are canvassed by Brennan J as he then was in Waterford, and by Mason CJ in Bond v Australian Broadcasting Tribunal.  But while that is a point that can be argued before the Federal Court, the other way of putting the proposition that the decision is unreasonable in the Wednesbury sense of being perverse, which the applicant would seek to do, is a point that is excluded from him in the Federal Court by operation of section 476(2B) of the Migration Act, which excludes as a ground of review, the ground that the decision was unreasonable.

So that the applicant seeks remitter so that he can agitate that ground to the Federal Court alongside an error of law ground, which he can do the error of law ground, but he cannot do the unreasonable ground.  The applicant is fearful of falling between two stools and brings this application now that he cannot be criticised for seeing which way the Federal Court decision goes and then approaching this Court.  That is, in a nutshell, your Honour, our submissions.  The submission puts the proposition not only on the unreasonableness ground, but also on a natural justice ground, on the basis that while the applicant was heard, what the Tribunal heard was not the application propounded by the applicant.  That the Tribunal has taken away from the hearing on a key, and the keystone of the arch, and a key point, a case that was not propounded by the applicant, nor by the Secretary in the written materials that the Secretary provided to the Department, i.e. the file.

That is also a ground that is excluded from being a ground of review before the Federal Court by section 476(2)A.  So it is to place those matters before the Federal Court in their common law context, that this application is made and it is made now to avoid criticism of the applicant by waiting until after the Federal Court proceedings, if the need then still exists.

HIS HONOUR:   When do the Federal Court proceedings commence?

MR HURLEY:   Your Honour, they are in fact listed for tomorrow.

HIS HONOUR:   Yes.

MR HURLEY:   In the Federal Court.  So that is why this application was brought before those proceedings.

[9.51am]

Your Honour, the submissions that have been prepared indicate the grounds and the context to which the applicant puts them at pages 4 and 5.  At page 4 in the context of the application for mandamus, the prosecutor applicant submits that there has been a breach of duty, the duty to determine the application according to law remains to be fulfilled because of three grounds: 

(a) that the decision involved a breach of natural justice

as I briefly indicated to your Honour;  secondly:

that it is unreasonable in the Wednesbury sense. 

On page 5. your Honour, in paragraph (c), thirdly:

That the decision was based on irrelevant matters or failed to take into account relevant matters.

Being the same points, your Honour.  That is also a ground of review that is excluded by section 476 of the Migration Act, subsection 3, paragraphs - I believe it is (d) and (e), your Honour, but one that would be known, in our submission, to the common law and as a basis for seeking final relief on the basis of mandamus.  On page 6, your Honour, I address the application for certiori.

HIS HONOUR:   We have been over that ground on another occasion, have we not?

MR HURLEY:   We have, your Honour. 

HIS HONOUR:   You may have difficulties there.

MR HURLEY:   Yes, your Honour.  And then finally at the bottom of page 6, your Honour, prohibition in relation to acting on a purported decision.  Your Honour, on page 7 we address discretion and seek to agitate the ground that I just put to your Honour that - I do not want to repeat myself, your Honour - that ‑ ‑ ‑ 

HIS HONOUR:   Why should I not remit this application to the Federal Court?

MR HURLEY:   There is no reason, your Honour, why your Honour should not remit this application.

HIS HONOUR:   I make that suggestion simply because the Federal Court will have to go into the matter anyway.

MR HURLEY:   Yes, your Honour.

HIS HONOUR:   And in the circumstances it may be more appropriate that they consider the application for orders nisi.

MR HURLEY:   Yes, your Honour.

HIS HONOUR:   Rather than I do it at this stage, perhaps not as well informed as that Court will be.

MR HURLEY:   Yes, your Honour.

HIS HONOUR:   Yes.

MR HURLEY:   The applicant will have no objection to that, your Honour.

HIS HONOUR:   Including the extension of time there would be no difficulty about the Federal Court on a remitter granting an extension of time if necessary, would there?

MR HURLEY:   No, your Honour.  Your Honour, we deal with the question of remitter on pages 8, 9 and 10 of the submission.

HIS HONOUR:   Well that is a ground we have been over before.

MR HURLEY:   That is a ground we have also been over before, your Honour.  Your Honour, I have prepared - there is a draft form of order exhibited to the affidavit that we have been advised is probably not in an appropriate form.

HIS HONOUR:   Then there is another one, is there not?

MR HURLEY:   My instructress has sent another one.  I hate to burden your Honour, but I have another - I believe it could be the same.

HIS HONOUR:   I have one that is exhibit VAT12, so it says.

MR HURLEY:   I believe, your Honour, that that is the original one and that is thought not to be in an acceptable form.  The one I have handed to your Honour is in the form that is thought to be acceptable.  Your Honour, they are the reasons for which the applicant seeks that the question of whether an order nisi be issued be remitted to the Federal Court.

HIS HONOUR:   Mr Tracey.

MR TRACEY:   If your Honour pleases.  The Minister opposes the making of an order nisi principally upon the ground that the material that is before the Court would not support any of the grounds that it is proposed to include in that order nisi.

HIS HONOUR:   Yes.  Well that would entail some fairly close examination of the matter.

MR TRACEY:   It would, your Honour, and ‑ ‑ ‑ 

HIS HONOUR:   What do you say as to my making an order that this application be remitted to the Federal Court?

MR TRACEY:   We do not oppose that course, your Honour.

HIS HONOUR:   Well that would seem to be the convenient course and the whole matter could be dealt with at once, could it not?

MR TRACEY:   Indeed, and the Federal Court Judge who deals with it will have to be seized of all the material, and would be in a better position to make that decision, having been taken through it all.

HIS HONOUR:   Yes.  Well in view of the intimation from Mr Hurley and your intimation, it would seem to be the order which I should make.  So what I will do is merely make an order for remitter of this application, that is the application for orders nisi and extensions of time in the ordinary form to the Federal Court in Melbourne.

MR TRACEY:   Yes, your Honour.

HIS HONOUR:   Yes.  Very well, I make that order.

MR TRACEY:   If your Honour pleases.

HIS HONOUR:   Is there anything else, gentlemen?

MR HURLEY:   No, thank you, your Honour.

AT 9.56 AM THE MATTER WAS ADJOURNED
INDEFINITELY