Tadros, Ex parte - Re Min for Immigration

[1999] HCATrans 337

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M19 of 1999

In the matter of –

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

First Respondent

AGNES BORSODY, a (former) Member of the REFUGEE REVIEW TRIBUNAL

Second Respondent

Ex parte –

MERVAT TADROS

Prosecutor

HAYNE J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON MONDAY, 11 OCTOBER 1999, AT 10.05 AM

Copyright in the High Court of Australia

MR C.L. RAWSON:   If it please the Court, I appear for the first respondent in that matter.  (instructed by the Australian Government Solicitor)

HIS HONOUR:   I think the applicant has a relative who desires to speak on the applicant’s behalf present in Court.

MR RAWSON:   I believe they are both outside the Court.

HIS HONOUR:   Are they?  I think the Deputy Registrar is just calling them into Court so if we can wait a moment, Mr Rawson.

I think if Mrs Tadros can be given a seat at the back there with her children, that is fine.  Now, you, sir, I think want to appear on behalf and speak on behalf of Mrs Tadros, is that right?

MR B. TADROS:  That is right.

HIS HONOUR:   Can I ask you your name?

MR TADROS:   My name is Basim Tadros, your Honour.

HIS HONOUR:   You are related to Mrs Tadros?

MR TADROS:   Yes, I am her son, an older son.

HIS HONOUR:   Thank you.  Now, Mr Tadros, the proceedings have come on today really to see where we are up to with them.  That is the only purpose of today, to see where we are up to and where we are going to go with them.

MR TADROS:   Sure.

HIS HONOUR:   I am not going to hear the case today.  I just want to find out what is happening.  Now it may be simplest if I hear from Mr Rawson, who is appearing for the Minister and the Refugee Review Tribunal first, and then we can see what you want to add, if anything.  Is that all right with you?

MR TADROS:   Yes, sure.

HIS HONOUR:   Thank you, Mr Tadros.  Now, Mr Rawson, where are we up to?

MR RAWSON:   Your Honour, I have spoken with Mr Tadros outside Court this morning.  I have explained to him that, for our part, we can see no reason not to remit the matter to the Federal Court.  Mr Tadros, as I understand it, has informed me that the application, as they say it, is pretty much ready for hearing but they have some issues they wish to put to you, as I understand it, on the question of remittal.

HIS HONOUR:   It comes out of the RRT. 

MR RAWSON:   Yes, your Honour.

HIS HONOUR:   Is there any question of prohibited grounds being agitated?

MR RAWSON:   No.  There are three grounds raised by the application, your Honour.  One is a section 430 ground, sufficiency of reasons; one is an error of law ground, and the third ground is a section 420 substantial justice ground.  It is obviously the respondent’s view, in the light of the Eshetu decision, that that ground will not assist the applicant in either venue.

HIS HONOUR:   That is the ground, and there is no difficulty that you say would arise in them pursuing that ground, so far as it is capable of pursuit, in the Federal Court.

MR RAWSON:   That is so, your Honour, yes.

HIS HONOUR:   That is, if the ground has any merit, it can be agitated in the Federal Court.

MR RAWSON:   Yes, your Honour.

HIS HONOUR:   Now, can you explain to me, before I hear from Mr Tadros, the kinds of things that you understand they are a bit worried about and want to raise now.

MR RAWSON:   I think primarily it relates to legal assistance and costs, your Honour, so it is probably more appropriate to come from ‑ ‑ ‑

HIS HONOUR:   What is the score on that sort of thing, Mr Rawson?  Is there anyone to whom they can turn to get some advice and some assistance?  Are there voluntary bodies, are there other bodies to whom we should be pointing them to look for assistance in this sort of thing?

MR RAWSON:   There may be voluntary bodies, your Honour.  I am probably not the best placed person to direct the applicant to one or the other.  I am not sure to what extent the prosecutor may have availed, or

sought to avail, herself of those opportunities.  I do understand that they have had legal assistance in so far as drawing this application is concerned.  The application is properly particularised.

HIS HONOUR:   Are they in a position where, if they go, for example, to the Bar, the pro bono scheme will offer them anything?  Should they be exploring that sort of thing?

MR RAWSON:   The Federal Court does have a pro bono scheme run through the Bar.

HIS HONOUR:   Yes, the Victorian Bar has a pro bono scheme which is used by the Federal Court.

MR RAWSON:   That is so, your Honour.  There are some guidelines relating to that scheme that I understand repose some discretion in the Judge who has listed the matter with reaching the Federal Court as to whether or not he would make a referral of the matter to the pro bono scheme.

HIS HONOUR:   I think it important that Mrs Tadros have some influence, some direct control over those things, as well as the judge, of course, retaining whatever control he or she has over it, so that if they go to the Bar, does the Institute have any referral system of any sort to which resort might be had that you know of?

MR RAWSON:   Not that I know of, your Honour, but I am probably not in a position to give a proper answer.

HIS HONOUR:   All right.  There are the questions of representation.  Are there other questions that you believe they may want to be raising?

MR RAWSON:   Not that I know of.

HIS HONOUR:   Not that you know of.

MR RAWSON:   No, your Honour.

HIS HONOUR:   Thank you for your help, Mr Rawson.

Now, Mr Tadros, you have heard what Mr Rawson and I have been talking about.  What are the problems that you see, that you want to raise with me at the moment?  There is the question of getting some legal assistance.  Is there any other problem that we need to look at this morning?

MR TADROS:   Your Honour, I am pretty sure we have asked our solicitor, who is working for legal aid, and he said to me that he could not find a way of representing us through legal aid.  So I am not sure where else we could go.  He has tried to help us.  He has tried to look for barristers or solicitors who are willing to help us out but I do not think he has found anybody.

HIS HONOUR:   Two things, Mr Tadros.  First, I will not make any orders or directions about getting you assistance.  The second thing is, my knowledge of the volunteer organisations is not very good so do not take what I say as being exhaustive or complete.  I know the Victorian Bar has some arrangements for looking after some sorts of cases where people cannot afford to pay.  I do not know whether your case is one that is appropriate, possible or one they will take on.  But you are to make some inquiries about that and the best place to talk to is the Victorian Bar.  It may be a complete dead end, there may be nothing that comes of it, but you should make inquiries.

MR TADROS:   Sure.

HIS HONOUR:   There are then, I think, some other voluntary organisations that sometimes help people with their refugee claims or migration claims.  I do not know whether they will take on your case, I do not know that they can or will help, but ask around, see what you can find out about them.

From what I am told, it seems to me that this case is one which can be dealt with in the Federal Court.  If that is so, then it should go to the Federal Court and it will come under the control of the Federal Court.  Is there anything you want to tell me about why it should not go to the Federal Court?

MR TADROS:   Your Honour, the only reason I know of – or that I have spoke to with my solicitor about was the financial difficulties we would face if we go to the Federal Court.  I think that is the only reason or that is the only issue we probably face at the moment.  As far as I know, the information that we have presented in the affidavit is also the information we are relying on, so we have no further evidence or information that we can present.

HIS HONOUR:   Yes.  Now, is there anything else that you need to tell me about, Mr Tadros?

MR TADROS:   I am not sure exactly what I can talk about or what I cannot talk about, your Honour.

HIS HONOUR:   There is nothing I am conscious of, but I do not want you going out the door later saying, if only I had said this.  There is nothing else

I need to know, I do not think, and there is nothing I can think of that we ought to deal with, but is there anything else you can think of?

MR TADROS:   I can see that you are trying to help me as much as you can and I appreciate that.  I thank you very much and I hope that the matter is heard in the High Court, if that is of any benefit to us.

HIS HONOUR:   There is no benefit that I am aware of in it staying in this Court.  It can go to the Federal Court.  If it goes to the Federal Court there are then appeal rights available from that court to the High Court.  So there are those advantages.

Now, Mr Rawson, what I am minded to do is to remit the application for prerogative relief.  I would not make any order nisi.  I would simply remit the application to the Federal Court in the common form order.  Is there anything you would say against my adopting that course?

MR RAWSON:   No, your Honour.

HIS HONOUR:   There will be an order remitting the proceedings to the Federal Court of Australia in its Melbourne Registry.  The costs of the proceedings will be costs in the cause.  That, I think, is all I need to order, is it not, Mr Rawson?

MR RAWSON:   Yes, your Honour.

HIS HONOUR:   Mr Tadros, the effect of that order is that the matter will now go on in the Federal Court.  In the meantime, you will need to make those inquiries I have spoken about, about seeing whether you can get some help.

MR TADROS:   Thank you, your Honour.

HIS HONOUR:   Thank you for coming in, Mr Tadros.

Call the next matter.

AT 10.18 AM THE MATTER WAS CONCLUDED