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

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…

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: [1999] HCATrans 337
Decision Date

CaseChat Overview and Summary

This matter concerned an application by Mr Tadros for a writ of habeas corpus, seeking his release from immigration detention. The application was heard by Hayne J in chambers.

The central legal issue before the Court was whether Mr Tadros was lawfully detained under the provisions of the *Migration Act 1958* (Cth). Specifically, the Court was required to consider the validity of the Minister for Immigration's decision to refuse to grant Mr Tadros a visa, and the subsequent detention of Mr Tadros pending his removal from Australia.

Hayne J considered the relevant provisions of the *Migration Act* concerning the detention of non-citizens and the Minister's powers in relation to visa applications. The Court's reasoning focused on the interpretation of these statutory provisions and their application to the facts of Mr Tadros's case. The principles applied involved an examination of the lawfulness of the detention in light of the Minister's decision and the statutory framework governing immigration detention.

The application for a writ of habeas corpus was dismissed.

Orders