Sithamparapillai & Anor, Ex parte - Re MIMA - [2004] HCATrans 364

[2004] HCATrans 364

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M29 of 2001

In the matter of -
An application for Writs of Certiorari and/or Mandamus and/or Prohibition or an Injunction against MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
J. VRACHNAS CONSTITUTING THE REFUGEE REVIEW TRIBUNAL
Second Respondent

Ex parte –
SANMUGAM SITHAMPARAPILLAI AND MANICKAM SITHAMPARAPILLAI
Applicants/Prosecutors

HAYNE J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON WEDNESDAY, 22 SEPTEMBER 2004, AT 9.30 AM

(Continued from 29/7/04)

MR A.F.L. KROHN: May it please the Court, I appear for the applicants, your Honour. (instructed by Ravi James & Associates)

MR. W.S. MOSLEY: I appear for the first respondent, your Honour. (instructed by Australian Government Solicitor)

HIS HONOUR: The Tribunal is a submitting party, I believe?

MR MOSLEY: Yes, your Honour.

HIS HONOUR: Yes, Mr Krohn.

MR KROHN: If your Honour please. Your Honour, this is an application for orders nisi. The first matter is that there is sought leave to amend the ground of the order nisi in the terms set out in the prosecutors’ outline of submissions dated 27 July this year. It is similar to the situation of the amendments sought in the application for orders absolute yesterday, but this is still an application for order nisi, and so, in my submission, the considerations of Order 55, rule 11 or 17 do not apply, at least not in the same form.

I understand that the application to amend is opposed on the basis that it is a late application. The submission is that it is an application which has not caused prejudice, because it is not a changing of course while the matter has been under argument. It is simply an application to amend that is made now that this question of procedural fairness comes for consideration. It is submitted that there is no prejudice to the respondent in allowing the amendment.

I have, if it is of assistance to your Honour – it may not be very much assistance – I have found one reference to a case this morning on the matter of amendment, although perhaps it may bear more upon the situation after an order nisi has been granted considering amendment in the light of Weldon v Neal. I have had a brief word with – just to identify that I had found a reference – my learned friend, but neither he nor I has had an opportunity to read the case and consider it.

HIS HONOUR: Yes, what is the reference?

MR KROHN: The reference, your Honour, is Collins v Hertfordshire County Council [1947] KB 598. It is also [1947] 1 All ER 633. It goes, I believe, to the question of permitting an amendment if there is no prejudice to the defendant that cannot be compensated by costs or an adjournment, if it is an amendment that would introduce facts that are merely further or different particulars…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2004] HCATrans 364
Decision Date

CaseChat Overview and Summary

This matter concerned an application for leave to appeal to the High Court of Australia by Sithamparapillai and another, acting as applicants, against a decision of the Federal Court of Australia. The applicants sought to challenge the Federal Court's refusal to grant them judicial review of a decision made by the Minister for Immigration and Multicultural Affairs (MIMA).

The central legal issue before Hayne J was whether the applicants had demonstrated a sufficient arguable case to warrant granting them leave to appeal to the High Court. This required an assessment of whether the Federal Court's decision contained an error of law that justified further appellate consideration.

Hayne J considered the applicants' arguments that the Federal Court had erred in its interpretation of the Migration Act 1958 (Cth) and the principles of administrative law. However, after reviewing the material before him, his Honour concluded that the applicants had not established an arguable case of error on the part of the Federal Court. The application for leave to appeal was therefore dismissed.

Orders