Chong, Ex parte; Re Bedlington & Anor S39/1996 [1996] HCATrans 146 (4 April 1996)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S39 of 1996

In the matter of -

An application for Writs of Prohibition and Mandamus

JENNIFER J. BEDLINGTON

First Respondent

THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS OF THE COMMONWEALTH OF AUSTRALIA

Second Respondent

Ex parte -

ANA CECILIA ENCISO CHONG

Prosecutor

GUMMOW J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON THURSDAY, 4 APRIL 1996, AT 9.56 AM

Copyright in the High Court of Australia

MR T.A. GAME: If your Honour pleases, I appear for the prosecutor, together with my learned friend MS K.M. GUILFOYLE. (instructed by Kessels & Associates)

MR R.T. BEECH-JONES: If the Court pleases, I appear for the respondents. (instructed by the Australian Government Solicitor)

HIS HONOUR: Now, Mr Game, looking at the grounds you seek to agitate, there does seem to be a question of construction of the legislation at the heart of it.

MR GAME: Yes, your Honour.

HIS HONOUR: That would be reviewable for error of law, for misconstruction of the law, obviously enough.

MR GAME: Well, your Honour - - -

HIS HONOUR: Perhaps you had better hear the rest of what I am going to say to you.

MR GAME: Sorry.

HIS HONOUR: That part of the matter is something that could be remitted to the Federal Court, could it not, leaving here the balance of the matter, including your Wednesbury unreasonableness grounds?

MR GAME: Yes.

HIS HONOUR: Now, what I want you to think about is why that would not be or would be an appropriate order and what I would need assistance would be, from both of you, to frame some short minutes of order which would clearly distinguish the relevant grounds.

MR GAME: Yes, your Honour.

HIS HONOUR: In other words, to clearly dissect that portion of the matter which is truly remittable. I am not saying that is the course I will follow, but I would need some assistance so that I had that option available for consideration.

MR GAME: Yes, your Honour.

HIS HONOUR: All right.

MR GAME: Thank you.

AT 9.57 AM THE MATTER WAS ADJOURNED

UNTIL LATER THE SAME DAY

UPON RESUMING AT 10.45 AM:

HIS HONOUR: Yes, Mr Game.

MR GAME: Thank you, your Honour. We have taken the opportunity to see whether or not we can agree as to what might be appropriate orders. Could I hand your Honour a document which sets out the proposal?

HIS HONOUR: Yes. Is that the only copy?

MR GAME: No, I have a copy for the - - -

HIS HONOUR: Do you have a copy, Mr Beech-Jones?

MR BEECH-JONES: Yes, your Honour, I have.

MR GAME: At page 67 of the affidavit is the relevant page.

HIS HONOUR: I should mention to counsel that the order nisi granted by Justice Gaudron on 1 September 1995 in the matter of Salew has been discharged.

MR GAME: Yes, your Honour, it was discharged because a visa was granted to - - -

HIS HONOUR: Yes. The reasons do not matter but there is no pending debate on that point?

MR GAME: No, your Honour.

HIS HONOUR: That was an order nisi on 1 September. Some of the relevant legislation, at any event, here, was assented to later, was it not?

MR GAME: Your Honour, section 48B was assented to later.

HIS HONOUR: 18 September.

MR GAME: Yes, but it mirrors the legislation that was under consideration in that case which was section 417.

HIS HONOUR: Yes, but anyhow, it is not section 48A, is that right?

MR GAME: Section 48B is the section that we are concerned with.

HIS HONOUR: And 48B.

MR GAME: And A, yes, your Honour.

HIS HONOUR: All right, let me have a look at the draft order nisi.

MR GAME: Could I say, your Honour, in line 5 of the draft order nisi - - -

HIS HONOUR: I have not found it yet.

MR GAME: I am sorry, pages 66 and 67 of the affidavit.

HIS HONOUR: Yes, I have it. Now, you appear for both respondents, do you not, Mr Beech-Jones?

MR BEECH-JONES: Yes, your Honour.

HIS HONOUR: And what is the office of the first respondent?

MR BEECH-JONES: She is the First Assistant Secretary of the Department of Immigration, your Honour - one of the first assistant secretaries.

HIS HONOUR: Is she doing anything other than as a delegate of the Minister?

MR BEECH-JONES: It is not my submission that she acted as a delegate of the Minister, your Honour.

HIS HONOUR: She was exercising some independent authority, was she?

MR BEECH-JONES: Yes, your Honour.

HIS HONOUR: Or some self-contained authority.

MR BEECH-JONES: Some self-contained - she made a determination but not on behalf of the Minister.

HIS HONOUR: What are the full names, do you know, of the first respondent?

MR BEECH-JONES: I will just find out. I believe her first name is Jennifer. My assistant is not familiar with her middle name but I can - - -

HIS HONOUR: We should at least dignify her by her first name.

MR BEECH-JONES: I will certainly find those matters out, your Honour.

HIS HONOUR: I will amend the identity of the first respondent in the proceeding to "Jennifer J. Bedlington".

MR BEECH-JONES: I should also add, your Honour, the second respondent is now the Minister for Immigration and Multicultural Affairs.

HIS HONOUR: Thank you for reminding me of that. The identity of the second respondent should be amended so that it reads, "Minister for Immigration and Multicultural Affairs". You are seeking orders nisi, are you?

MR GAME: Your Honour, we need something before there is any remittal but, yes, your Honour.

HIS HONOUR: Do you? Why? Why can I not remit the application - so much of the application for an order nisi as depends upon those grounds?

MR GAME: Her Honour Justice Gaudron, she took the view that unless she made orders nisi, there could be nothing to remit.

HIS HONOUR: In what matter was that?

MR GAME: It was in Salew. It is on page 2 in the transcript of the argument in that case.

HIS HONOUR: You were badgering her Honour.

MR GAME: It is not my style, your Honour.

HIS HONOUR: Yes, you were. There was a suggestion made upon which you jumped. What do you say about this, Mr Beech-Jones? Do you oppose an order nisi?

MR BEECH-JONES: Your Honour, if the Court is of a view that it can conduct remittal without granting an order nisi then, in my view, it would service no purpose in the sense that - - -

HIS HONOUR: An order nisi, in a way, is like an interlocutory injunction but, on the other hand, is it needed to preserve the situation?

MR BEECH-JONES: It is not, your Honour. My instructions are that provided the prosecutor makes an application for what is known as a bridging visa, shortly one will be granted and the granting of that would prevent her being removed or detained under the mandatory removal and detention provisions of the Act. So that an order nisi is certainly not necessary for that purpose.

HIS HONOUR: Yes. What would be the appropriate destination of the remitter: the Federal Court New South Wales District Registry, I would imagine?

MR BEECH-JONES: I believe all the circumstances arise in New South Wales other than where Ms Bedlington - - -

HIS HONOUR: Yes. I think I will remit it in its present condition, Mr Game, but I will reserve - which you would have anyway, I suppose - liberty to apply to the Federal Court if any problem arises as to any apprehended removal of your client.

MR GAME: Yes. If your Honour pleases, could I just mention one matter before your Honour finally makes that order for remitter. The question that is raised by this case does raise an important question in the whole administration of the Migration Act 1958 .

HIS HONOUR: Yes, it does.

MR GAME: And there are many other people waiting to see what happens with - they were waiting to see what happened with Salew but that went - - -

HIS HONOUR: Yes. Having sat in the Federal Court for some years, I would think, from that experience, that that would be reflected in some prompt treatment of the matter in the Federal Court.

MR GAME: Yes. The only practical problem is that at the moment it means that the Registry of this Court is likely to receive more such applications until - - -

HIS HONOUR: So be it.

MR GAME: So be it, yes. Your Honour, with respect to the question of orders nisi, I agree with my friend that there is certainly no risk to the prosecutor if orders are not made, given indications that have been given, but if it is the case that section 44 requires that - - -

HIS HONOUR: It just requires "a matter".

MR GAME: Yes.

HIS HONOUR: Well, there is a controversy, is there not?

MR GAME: Yes.

HIS HONOUR: You want an order; Mr Beech says "No, you are not entitled to anything, not even an order nisi". Is that not a matter?

MR GAME: Yes.

HIS HONOUR: Suppose you came up here and wanted an interlocutory injunction, why could that not be remitted?

MR GAME: I agree with your Honour. I was inclined to agree with Justice Gaudron on the last occasion to the contrary view, I am afraid.

HIS HONOUR: Yes. I think if I make the order, I do not think you will have any trouble in the Federal Court with it. But, of course, it should be understood that there remains elements of the matter in this Court.

MR GAME: Yes.

HIS HONOUR: And this is the by-product of this legislation, that these matters have to remain here, they cannot be remitted. It may be that you succeed on your legal construction in the Federal Court and that disposes of the case. You may not and it may then be necessary to reactivate the balance of the matter in this Court.

MR GAME: Yes. It may mean ultimately that there is, on either side, a special leave application running alongside an unresolved application for orders nisi. Thank you, your Honour.

HIS HONOUR: Yes, and there it stands.

MR BEECH-JONES: Can I just say one further matter, your Honour. I do not have formal instructions to consent to remittal but, equally, your Honour, I cannot point to any reason to oppose that course.

HIS HONOUR: No. It is brought about by the legislation which your client administers, which should illustrate to your client the by-product of that legislation which is the fragmentation and delay of procedures. It is much better to have the matter disposed of in the one place other than in the ultimate appellate court.

MR BEECH-JONES: That is a matter, ultimately, for Parliament. My client humbly administers the Act in that sense.

HIS HONOUR: Yes. Well, your client is presently reviewing the operation of the Act.

MR BEECH-JONES: I am not sure how comprehensive that review is, your Honour, but - - -

HIS HONOUR: I say nothing about it beyond what I have said. Now, mandamus is to the first respondent, is it not?

MR GAME: Your Honour, we seek mandamus to both respondents. With respect to the second respondent, we seek mandamus directing the second respondent to determine whether or not to consider the prosecutor's application.

HIS HONOUR: The draft application seeks prohibition to the second and mandamus to the first.

MR GAME: It seeks mandamus to both. Line 4, " directing the second respondent to determine". It seeks mandamus to both respondents and prohibition to the second. The actual word that I wanted to amend was the word "consider" on the fifth line of page 67 and to make that the word "determine".

HIS HONOUR: Would you say that again.

MR GAME: On the fifth line of page 67, the first word "consider" - - -

HIS HONOUR: To "determine".

MR GAME: The word "determine" instead of "consider".

HIS HONOUR: All right. I grant you leave to amend and treat as amended the draft. The first word on line 5 of the second page will be "to determine" rather than "to consider".

MR GAME: Thank you, your Honour.

HIS HONOUR: Is it not better to reframe your matter as an application - or grant you leave to seek an order absolute in the first instance? It is difficult though, is it not? I mean, ordinarily the order absolute would be before a Full Court. What is going to happen in the Federal Court? You go before a single judge and get an order nisi and then what will happen on the return of the order absolute? Do any directions need to be given about that?

MR GAME: Your Honour, it may be that the - - -

HIS HONOUR: I would have thought you wanted an order absolute, an application of order absolute in the first instance by a single judge of the Federal Court and then you appeal that.

MR GAME: Yes.

HIS HONOUR: Is that not the way to do it?

MR GAME: Yes.

HIS HONOUR: Do you agree with that, Mr Beech-Jones? I think it is more sensible.

MR BEECH-JONES: I would think so, your Honour. Presumably, if the single judge decides the question of construction in my way.

HIS HONOUR: Exactly.

MR BEECH-JONES: But that would not result in the - - -

HIS HONOUR: He cannot really decide that satisfactorily on an order nisi.

MR BEECH-JONES: If he was to decide that in my client's favour, he would not necessarily dismiss the application. It would be reactivated in this Court.

HIS HONOUR: That is right. I think you may need to - just let me look at Order 55 of the High Court Rules.

MR GAME: There is certainly power in Order 55 to make an order absolute, as I understand it.

HIS HONOUR: Yes, there is, but I had better get the Federal Court Rules brought in because there is a Federal Court Rule dealing with the 39A jurisdiction. That may be the best way of doing it. Order 55 rule 2, is it not? It used to be. Yes, here it is.

MR GAME: It is Order 55 rule 1(4).

HIS HONOUR: Yes, that is it. I had better make an order, as it were, transmuting this into an application under Order 55 rule 1(4) and then remit that.

MR GAME: Thank you, your Honour.

HIS HONOUR: That might be the sensible way of doing it.

MR GAME: In those circumstances, I would ask leave to amend the draft order to substitute the word "absolute" for the word "nisi" where it appears.

HIS HONOUR: Yes. It is an order that is becoming longer by the minute. Now, the title of the second respondent, that is achieved, is it, Mr Beech-Jones, just by removing "Ethnic" and putting in "Multicultural", is that right?

MR BEECH-JONES: Yes, your Honour.

HIS HONOUR: Is that one word?

MR BEECH-JONES: "Multicultural", I think it is, your Honour.

HIS HONOUR: This is what I propose. I ask counsel to listen to it and then think about it:

1. Grant leave to the applicant to amend the draft being exhibit RK 6 to the affidavit of Ronald Anthony Kessels sworn 16 March 1996 and made in support of the application pursuant to Order 55 rule 1;

(a) by changing the identity of the first respondent to read "Jennifer J. Bedlington";

(b) by deleting from the title of the second respondent "Ethnic" and inserting "Multicultural"; and

(c) by amending the relief sought to orders absolute in the first instance for writs of mandamus against the respondents and prohibition against the second respondent.

2. Order that there be remitted to the Federal Court of Australia New South Wales District Registry so much of the matter pending in this Court, being applications for orders absolute for writs of mandamus directed to the respondents and for a writ of prohibition directed to the second respondent as rely upon grounds (i) and (v) in exhibit RK 6.

3. Liberty to apply to this Court on seven days written notice.

4. Costs of the application to date in this Court be costs of the proceeding in the Federal Court of Australia.

Does that seem adequate?

MR GAME: Thank you, your Honour.

MR BEECH-JONES: Your Honour, I think Mr Game had another amendment to his draft order nisi.

HIS HONOUR: Yes, he does too, you are quite right. Yes, I had better make what is now l(c), make that 1(d) and insert a new 1(c) which will be deleting from line 5 of page 2 of exhibit RK 6, "consider" and inserting "determine".

MR BEECH-JONES: Perhaps, your Honour, in order 2 at the end could the reference to grounds (i) and (v) in exhibit RK 6 perhaps refer to the order as amended.

HIS HONOUR: In exhibit RK 6, as amended. Yes, I think that is right. Is there anything else, gentlemen?

MR BEECH-JONES: No, your Honour.

MR GAME: No, your Honour.

HIS HONOUR: In this matter, the jurisdiction of this Court under section 75(v) of the Constitution is invoked. The effect of the relevant legislation is to restrict what otherwise would be the full power of remitter to the Federal Court of Australia. This affects some but not all of the grounds upon which review is sought. In particular, there are issues as to the proper construction of section 48A and section 48B inserted in the Migration Act (Cth) ("the Act") by section 14 of the Migration Legislation Amendment Act (No 6) 1995 (Cth). These grounds provide perhaps the most significant part of the matter and that part may still be remitted under section 44 of the Judiciary Act 1903 (Cth) ("the Judiciary Act"). The legislative restrictions upon remitter flow from section 485 of the Act.

The appropriate course is to accept the application to change the nature of the application to one under Order 55 rule 1(4) for orders absolute in the first instance for prerogative relief and then to remit part of the matter so pending in this Court under section 44 of the Judiciary Act to the Federal Court of Australia. The relevant portion of the matter to be remitted will be that which conformably with the relevant legislation may be so treated, and the residue will remain in this Court. The orders to implement that decision are as follows:

1. Grant leave to the applicant to amend the draft being exhibit RK 6 to the affidavit of Ronald Anthony Kessels sworn 16 March 1996 and made in support of the application pursuant to Order 55 rule 1:

(a) by changing the identity of the first respondent to read "Jennifer J. Bedlington";

(b) by deleting from the title of the second respondent "Ethnic" and inserting "Multicultural";

(c) by deleting from line 5 of page 2 of exhibit RK 6 "consider" and inserting "determine"; and

(d) by amending the relief sought to orders absolute in the first instance for writs of mandamus directed to the respondents and prohibition directed to the second respondent.

2. Order that there be remitted to the Federal Court of Australia New South Wales District Registry so much of the matter pending in this Court, being the application for orders absolute for writs of mandamus directed to the respondents and for a writ of prohibition directed to the second respondent as rely upon grounds (i) and (v) in exhibit RK 6 as amended.

3. Liberty to apply to this Court on seven days written notice.

4. Costs of the application to date in this Court be costs of the proceeding in the Federal Court of Australia.

5. Certify for counsel.

I will now adjourn.

AT 11.30 AM THE MATTER WAS CONCLUDED