Tamas, Ex parte - Re Min for Immigrtion

[2000] HCATrans 46

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S253 of 1999

In the matter of –

An application for Writs of Prohibition and Mandamus against the MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS OF THE COMMONWEALTH OF AUSTRALIA

Respondent

Ex parte –

ARPAD TAMAS

Prosecutor

GLEESON CJ

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 22 FEBRUARY 2000, AT 10.30 AM

Copyright in the High Court of Australia

MR T.A. GAME, SC:   May it please your Honour, I appear for the applicant in this matter.  (instructed by Ron Kessels, Solicitor)

MR S.B. LLOYD:   I appear for the respondent, your Honour.  (instructed by the Australian Government Solicitor)

HIS HONOUR:   I see you have had a win, Mr Game.

MR GAME:   I suppose if you could call it a win, your Honour.  I have had plenty of losses, I would have to say.

HIS HONOUR:   It was not for me to say that.

MR GAME:   Does your Honour ‑ ‑ ‑

HIS HONOUR:   I am just looking at Order 55 rule 1.  My copy of the High Court Rules does not have Order 55 rule 1(4) in it.

MR GAME:   It is Order 55 rule 1(4).

HIS HONOUR:   Yes.  They have left that out of my copy of the Rules.  They probably do that to keep me on my toes.

MR GAME:   It is a well-thumbed page in my set of the Rules.

HIS HONOUR:   I think Justice McHugh had something to say about this in a case recently, did he not?

MR GAME:   In Durairajasingham.  Could I just hand to your Honour a passage in Durairajasingham?

HIS HONOUR:   Thank you.

MR GAME:   As I recall, he was asked to refuse the relief and he held that he had no power to refuse the relief.  But that is different from this situation.

HIS HONOUR:   This is only mandamus – prohibition.

MR GAME:   Mandamus and prohibition, yes.

HIS HONOUR:   The respondent’s submissions appear to be framed on the assumption that you are seeking certiorari.

MR GAME:   Well, your Honour, we do not seek certiorari.  In Durairajasingham Justice McHugh doubted whether – I am not sure

whether he doubted – said that certiorari was not available.  There are cases that suggest that certiorari is available but we do not – the order for prohibition would be more than adequate for our purposes.

HIS HONOUR:   What you ask is an order absolute for prohibition and mandamus in terms of the draft order nisi?

MR GAME:   Yes, your Honour.

HIS HONOUR:   Any other orders?

MR GAME:   An order for costs, but no other orders substantive ‑ ‑ ‑

HIS HONOUR:   What do you say about that, Mr Lloyd?

MR LLOYD:   No opposition is made to any of those things.  I mean, an order of mandamus would imply that the decision was invalid in any event. 

HIS HONOUR:   You read the affidavit of Ronald Antony Kessels of 22 December 1999.  Any other affidavit?

MR GAME:   Yes, your Honour.  Frances Gibson declared on 21 December 1999.

HIS HONOUR:   Yes, Frances Gibson, declared on – I think it is 22 December.

MR GAME:   Is it?  Sorry, your Honour.  And Arpad Tamas, declared on 22 December 1999.  Those are all of the affidavits.

HIS HONOUR:   Thank you.

In this matter, counsel for the respondent has informed the Court that the respondent accepts that the primary decision maker made an error of law as asserted in the affidavit of Ronald Antony Kessels of 22 December 1999.  Having read the affidavits relied upon by the prosecutor I am satisfied that the concession made on behalf of the respondent is correct.  I am content to accept it and act on that basis.  The respondent concedes that, in the circumstances, it is appropriate for me to make orders absolute under the provisions of Order 55 rule 1(4) of the High Court Rules. 

Accordingly, I make orders absolute for prohibition and mandamus in terms of the orders sought in the draft order nisi filed in these proceedings.  I order that the respondent pay the prosecutor’s costs of the application.

MR GAME:   If the Court pleases.

HIS HONOUR:   If it be necessary, I certify for counsel.  I am not sure whether it is.

Nothing else needs to be done in that matter?

MR GAME:   No, your Honour.

HIS HONOUR:   We will adjourn until 2.15 pm.

AT 10.37 AM THE MATTER WAS CONCLUDED