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High Court of Australia Transcripts |
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Brisbane No B64 of 1997
RE MINISTER FOR IMMIGRATION AND
MULTICULTURAL AFFAIRS and
ANOTHER
EX PARTE WOLD-MARIAM
CALLINAN J
TRANSCRIPT OF PROCEEDINGS
AT BRISBANE ON WEDNESDAY, 18 FEBRUARY 1998, AT 11.00 AM
Copyright in the High Court of Australia
HIS HONOUR: Mr Wold-Mariam, you represent yourself. Is that correct?
MR E.D. WOLD-MARIAM: I have a solicitor, a lawyer.
HIS HONOUR: You do have.
MR WOLD-MARIAM: But unfortunately he could not make it because of short notice he received.
HIS HONOUR: We will talk about that in a moment, but presently you are here on your own. Is that correct?
MR WOLD-MARIAM: Yes.
HIS HONOUR: Mr Derrington, you appear for the - - -
MR R.M. DERRINGTON: Both respondents, may it please your Honour, both respondents, the Minister for Immigration and Multicultural Affairs and the Refugee Review Tribunal.
HIS HONOUR: Yes. The Refugee Review Tribunal is not taking an active part, I take it.
MR DERRINGTON: No. We will take an appropriate stance, abide by the order of the Court and ask to be excused from further involvement.
HIS HONOUR: Mr Wold-Mariam, you say you are trying to get a solicitor or you have a solicitor. What is the position?
MR WOLD-MARIAM: I have a solicitor by the name of Mr Terry Ogge.
HIS HONOUR: Mr - - -
MR WOLD-MARIAM: Terry Ogge from Brown and Fowler.
HIS HONOUR: I am sorry. Which firm is that?
MR WOLD-MARIAM: Brown and Fowler.
HIS HONOUR: Yes.
MR WOLD-MARIAM: He is my solicitor.
HIS HONOUR: And why is not he here today?
MR WOLD-MARIAM: Well, we received the letter of the High Court from Mr Belcher's office the day before yesterday. I contacted him and faxed it to Gold Coast. Unfortunately he could not make it. He told me yesterday at 3 o'clock that he could not make it because he had a commitment for another appointment. On such short notice he told me he could not make it.
HIS HONOUR: Is he actually engaged by you or what is the situation?
MR WOLD-MARIAM: Sure.
HIS HONOUR: He has accepted a retainer from you? Do you know what I mean when I ask that?
MR WOLD-MARIAM: Yes, yes.
HIS HONOUR: Well, look, what are you suggesting, Mr Wold-Mariam?
MR WOLD-MARIAM: Pardon?
HIS HONOUR: What are you suggesting, then?
MR WOLD-MARIAM: Me?
HIS HONOUR: Yes. Do you want the matter adjourned?
MR WOLD-MARIAM: Well, yes, adjourn it, because I am not good in my English, conversational English. I prefer actually to be represented by the lawyer.
HIS HONOUR: Right, thank you. And Mr Derrington? What is your view about that, Mr Derrington?
MR DERRINGTON: Your Honour, it has taken us somewhat slightly by surprise. We did not know that Mr Ogge was acting or retained by the applicant. Would your Honour mind if I take some instructions?
HIS HONOUR: No, of course not.
MR DERRINGTON: I trust that the applicant wishes to adjourn it until - - -
HIS HONOUR: Well, he has just said that. Perhaps I will ask him another question. Mr Wold-Mariam, how long an adjournment would you be asking for?
MR WOLD-MARIAM: Well, he could not make it for today, but I would not know actually what his next opening is and I hope you will accept we give him time enough to prepare for the case.
HIS HONOUR: This case has been going for quite a long time.
MR WOLD-MARIAM: Yes, sir.
HIS HONOUR: If I were minded to give an adjournment I would only give it for a week, if I were minded. I have not decided yet. I just want to hear from Mr Derrington, who represents the respondent.
MR DERRINGTON: Your Honour, might I ask your Honour to stand the matter down so we can contact my client in Canberra?
HIS HONOUR: Certainly, certainly. Let me tell you what I have in mind, Mr Derrington.
MR DERRINGTON: Yes, your Honour.
HIS HONOUR: I have not formed a final view about it yet, but I am minded to give Mr Wold-Mariam an adjournment of a week but only one adjournment because obviously his advisers have to meet the Court's commitments and not vice versa, and I am also going to suggest to Mr Wold-Mariam that he will need to state some grounds for his application.
MR DERRINGTON: Yes.
HIS HONOUR: It is an obvious deficiency. That is my inclination, to give him an adjournment of a week, because the Court would obviously be assisted if he is properly represented and - - -
MR DERRINGTON: There is no doubt about that, your Honour. The matter may go much more smoothly if he is.
HIS HONOUR: I think it might, and no doubt the Commonwealth would give an undertaking that nothing would be done in connection with the implementation of the decision of the Tribunal during that period.
MR DERRINGTON: I am certain that that would be the case, although I am sure it is departmental policy not to do anything until the matter is finally disposed of, but I will ask for those instructions as well, your Honour.
HIS HONOUR: They are obviously very serious matters. I mean, judges in Australia fortunately no longer have to impose a death penalty or corporal punishment, but of course a miscarriage of this kind can produce that sort of result.
MR DERRINGTON: Well, indeed, your Honour, and, your Honour, the Department as the responsible litigator has actually put together all the files so they were available for the Court. The matter did come on quite quickly, we notice, but we managed to put together another affidavit, being all the files before the RRT, the Refugee Review Tribunal. It assists all parties to make sure the Court is fully aware of what occurred.
HIS HONOUR: There is a preliminary question, of course, as to how much of that should come before the Court in view of the decision in Craig v South Australia. Have you looked at that?
MR DERRINGTON: I am indebted to your Honour.
HIS HONOUR: It is a decision of the High Court in 1995 which took - I do not mean any disrespect, but it took a very narrow view of what the record was. Of course, this is not certiorari.
MR DERRINGTON: No.
HIS HONOUR: It is prohibition, and I suppose it is much broader than that.
MR DERRINGTON: I think certiorari is sought.
HIS HONOUR: Yes, but I do not know whether there is a jurisdiction, an original jurisdiction in - - -
MR DERRINGTON: Yes, your Honour is right.
HIS HONOUR: - - - in view of section 75. There are a number of questions here. Look, what about I stand the matter down for 10 minutes.
MR DERRINGTON: You are very kind. Thank you, your Honour.
HIS HONOUR: You can obtain instructions and you can see the sort of thing I have got in mind.
MR DERRINGTON: Yes, yes. Thank you, your Honour.
HIS HONOUR: Adjourn for 10 minutes, please.
SHORT ADJOURNMENT
[11.23am]
MR DERRINGTON: Thank you, your Honour. With respect to the adjournment, my client instructs that we have no objection to your Honour granting the applicant an adjournment. We would of course ask for costs. With respect to the undertaking, your Honour might I proffer this undertaking to the Court on behalf of the first respondent: that until the determination of the matter or earlier further order, the first respondent, his servants and agents, will not remove the applicant from Australia.
We are perhaps not sure that it is necessary, but there may be a bridging visa in place, but it does not matter, we offer that undertaking to your Honour.
HIS HONOUR: Thank you, Mr Derrington. Thank you for that. Mr Wold-Mariam, did you understand that? I am going to give you an adjournment for a week so that this matter will resume in Brisbane in this building in a Court which will be nominated at 11 o'clock in a week's time. Now, the respondents have said - they have given an undertaking to the Court that in effect you will not be removed from Australia or deported in any way or obstructed, or rather hindered in any way in Australia during this next week. Do you understand that?
MR WOLD-MARIAM: Yes, your Honour.
HIS HONOUR: I just want to tell you some other things, Mr Wold- Mariam. The preliminary view that I have formed of your papers is that they are defective. Now, in order to obtain the sort of relief from the Court that you are asking, you need to state with certainty or precision what your grounds are, what grounds you rely upon in order to persuade the Court that you should have the orders that you want. Now, it is not sufficient for you simply to refer to all the matters that you refer to in your affidavit. You need to state, or you need to get your lawyer to state for you with certainty what your grounds are. Do you understand what I am putting to you?
MR WOLD-MARIAM: Yes.
HIS HONOUR: And unless you do that, you are going to have a problem right at the beginning of your case. Do you understand that?
MR WOLD-MARIAM: Yes, sir.
HIS HONOUR: Now, the other suggestion I am going to make is that you have your lawyers file in the Court some written submissions on or before 4 o'clock next Monday. Now, what date is that? That is the 24th. Mr Wold-Mariam, that your lawyers file in the Court written submissions by 4 o'clock next Monday. Now, I am going to make that a condition of the adjournment, and, Mr Derrington, I do not impose the same condition upon you but it would be helpful if you could do that.
MR DERRINGTON: Thank you, your Honour. Your Honour, we actually have prepared one. We would give it to Mr Wold-Mariam now.
HIS HONOUR: Mr Wold-Mariam, you should provide the respondents' solicitors, or your lawyers should, with written submissions by 4 o'clock next Monday also. So you have to file them in the Court, and you have to provide a copy to the lawyers on the other side.
MR WOLD-MARIAM: Yes, your Honour.
HIS HONOUR: Now, Mr Derrington, I am not minded to make any order as to cost today, I am going to reserve the costs.
MR DERRINGTON: May it please your Honour.
HIS HONOUR: Do you understand, Mr Wold-Mariam, precisely what I am saying to you what will happen now? I just want to make sure that you understand what I am saying.
MR WOLD-MARIAM: Yes, sure, I understand it.
HIS HONOUR: First I am going to grant you an adjournment on condition that you or your lawyers file in the Court and serve upon the respondents or their solicitors written submissions by 4 o'clock in the afternoon next Monday. Do you understand that?
MR WOLD-MARIAM: Yes, sir.
HIS HONOUR: And I am going to give you an adjournment until 11 o'clock next Wednesday. It is the 26th, Mr Associate, is that correct?
THE COURT: The 25th.
HIS HONOUR: The 25th. Wednesday the 25th. I am going to reserve the costs, there will be no order for costs today but they will be reserved, and there can be an argument about them later. Do you understand all of that?
MR WOLD-MARIAM: Yes, sir.
HIS HONOUR: Yes, you can sit down, Mr Wold-Mariam. Yes?
MR DERRINGTON: I was wondering if I could ask your Honour's indulgence for another day. I appreciate your Honour has sitting commitments.
HIS HONOUR: No, no, I do not. Would you prefer the Thursday, Mr Derrington?
MR DERRINGTON: I would, may it please your Honour.
HIS HONOUR: There is no problem about adjourning it till Thursday week rather than Wednesday week, Mr Wold-Mariam? It would give you another day anyway.
MR WOLD-MARIAM: We discussed about that a while ago, and you know Mr Terry Ogge, he is living in Gold Coast, and I have a problem of contacting him.
HIS HONOUR: Well, Thursday week is better for you too then?
MR WOLD-MARIAM: I prefer if it could be Friday next week.
HIS HONOUR: No, I cannot do it on Friday, Mr Wold-Mariam.
MR WOLD-MARIAM: Okay, Thursday I appreciate - I will take that.
HIS HONOUR: Well, that order will be that the matter will be adjourned until Thursday week, the 26th, Mr Associate, is that correct?
THE COURT: Yes, your Honour.
MR WOLD-MARIAM: How about the submissions, could it be Tuesday?
HIS HONOUR: Yes, the written submissions can - I will change that from Monday to the Tuesday.
MR WOLD-MARIAM: Tuesday.
HIS HONOUR: Mr Derrington, you may have addressed these questions, but I do not know whether there have been any applications in respect of this Tribunal - you can sit down, Mr Wold-Mariam - since this legislation came in in 1992, is that correct?
MR DERRINGTON: No, there have been, your Honour. It has become a vexed question now. There have been a number of applications - - -
HIS HONOUR: To this Court?
MR DERRINGTON: - - - to the High Court to single justices seeking orders nisi, yes.
HIS HONOUR: And have there been any orders nisi granted?
MR DERRINGTON: Yes, there have been. And a question arises as to what is done with them whether they are referred to the Full Bench or whether or not they have been remitted to the Federal Court, and there is a question about that. But would your Honour like some authorities, or would your Honour like me to send you authorities before next week?
HIS HONOUR: Well, perhaps if you could make available to me your submissions now upon the basis that if you want to expand upon them in any way by next Tuesday, do so by all means, and as I say, I do not make the order in respect of your side anyway.
MR DERRINGTON: Yes. Your Honour, these really deal with the grounds of the application for an order nisi dealing with the material that was, or would be before your Honour. It does not deal with what would occur on your Honour's decision to grant the order nisi, so I do not refer to those cases. But I might hand your Honour my outline and I will give a copy to Mr Wold-Mariam.
HIS HONOUR: Yes, thank you.
MR WOLD-MARIAM: Thank you.
HIS HONOUR: And do you deal with the question whether the High Court has jurisdiction to grant certiorari in these cases?
MR DERRINGTON: Your Honour, I did not deal with that because I have come to the conclusion that it probably is available, and there are a number of academic debates as to why it is available. Perhaps it is because if the Court is seized of original jurisdiction with respect of granting prohibition and mandamus, and therefore certiorari tags on behind, so to speak, others - - -
HIS HONOUR: It is not expressly mentioned, and the others are.
MR DERRINGTON: No, it is certainly not in 75(5) whereas there is also the power in the Judiciary Act which it has been suggested just simply gives the Court all powers and entitlements that it is entitled to.
HIS HONOUR: Certainly no jurisdiction inferior to any other court in Australia.
MR DERRINGTON: Yes. Yes, your Honour.
HIS HONOUR: In its original jurisdiction anyway.
MR DERRINGTON: Yes. But I have reached the conclusion that it is not - and that there did not seem to be in other cases dealt with by Gummow J, it did not seem to be a problem in other cases that I have identified.
HIS HONOUR: It raises something of a question with - I think if certiorari is a remedy that is available as to what constitutes the record that Craig v South Australia case I mentioned to you which is in 131 ALR. It should be in the CLR by now too, but it is the ALR at page 595. The High Court held, certainly in respect of inferior courts, that the record might not even constitute the reasons.
MR DERRINGTON: Yes, is that the one where ex tempore reasons were regarded as not constituting the record of - yes, I think - - -
HIS HONOUR: Well, that was one of the debates in the case.
MR DERRINGTON: Yes, yes.
HIS HONOUR: But what might in some circles, certainly in academic circles would be regarded as a narrow view of what the record is was taken, you may have the question here that you - whether you have a different record for the certiorari remedy from the record for prohibition and mandamus because in the case that Mr Wold-Mariam refers to in 169 CLR where relief was granted, the Court, the High Court in its original jurisdiction, but then sitting on appeal from the Full Federal Court, examined in some detail and analysed the evidence and the reasons.
MR DERRINGTON: Yes, yes, I see. So the record might well be different depending on jurisdiction - - -
HIS HONOUR: I do not know. I mean, it is a question. Since the decision - it is Chan v Minister for Immigration which Mr Wold-Mariam referred to in his submissions, which is 169 CLR 379, since then amendments have been made to the Migration Act by the introduction of a new section 476 which restricts very much the sorts of grounds that the Federal Court can look at in reviewing these decisions.
MR DERRINGTON: Indeed. In this case my submissions identify it best the grounds of relief could only be Wensbury unreasonableness, and, your Honour, irrelevant or irrelevant considerations.
HIS HONOUR: That may not apply to us in our original jurisdiction.
MR DERRINGTON: Indeed it would not, but they are ones which I perceive would be at best the argument the applicant could make, and they are excluded by, as your Honour correctly identified, 476 of the Migration Act.
HIS HONOUR: It is interesting because I mean it is obviously a matter of considerable importance to this Court.
MR DERRINGTON: Yes.
HIS HONOUR: Because if we have, what seems to be the case, much more ample jurisdiction that the Full Federal Court.
MR DERRINGTON: Yes.
HIS HONOUR: Well, obviously applications are going to come here. Some of them are going to involve factual questions which normally we would not hear.
MR DERRINGTON: Indeed, your Honour. It has been, I should tell your Honour, the subject of comment by Gummow J in a case of - in the Minister of Immigration and Abebe, A-b-e-b-e. There is only a transcript of available. Your Honour, it is not in my - there is only a transcript available from the very helpful High Court home page in the Internet, and if your Honour wants to see a copy of that I am very happy to - - -
HIS HONOUR: Yes, I would. Well, I can get one. If you just give me a reference.
MR DERRINGTON: Well, it is an Internet copy from the High Court home page.
HIS HONOUR: Well, if you have got a spare one.
MR DERRINGTON: I do have a spare one, your Honour. It deals with the exact point that your Honour has raised.
HIS HONOUR: Could I ask you to give a copy of that to Mr Wold-Mariam, too, please.
MR DERRINGTON: Yes.
HIS HONOUR: I do not mean immediately, but perhaps a copy could be given to him before he leaves the Court today.
MR DERRINGTON: Your Honour, that is perhaps not the end of the matter, other - it also occurred in Chen Xin He and the Minister for Immigration and Ethnic Affairs, decision of Nicholson J. It really deals with, though, exactly the point your Honour has raised, the jurisdiction of the Federal Court dealing with the matter, and a decision of Finkelstein J, who raises it, discusses it, and might indicate that in fact, perhaps, at the end of the day, it was not something that needed to turn on that application. But those are two other decisions which I will hand.
HIS HONOUR: Well, thank you, that is most helpful, Mr Derrington.
MR DERRINGTON: Again, not reported there on the unreported judgments data.
HIS HONOUR: All right, well, it might be helpful if you could provide Mr Wold-Mariam with a copy of those also.
MR DERRINGTON: Yes, of course, your Honour.
HIS HONOUR: All right. Well, I do not think there is anything further. Thank you, for your assistance, Mr Derrington. Mr Wold-Mariam, do you understand exactly what has happened and what you have to do and what is going to happen next week?
MR WOLD-MARIAM: Yes, your Honour.
HIS HONOUR: Yes, all right. Well, this matter will be adjourned - - -
MR DERRINGTON: Your Honour, I apologise, I should have asked your Honour order - that your Honour might, as a matter of housekeeping, just order the second respondent, The Refugee Review Tribunal be excused from further involvement in the proceedings.
HIS HONOUR: Yes. I order that the - I do not know whether I need a formal order - but, in any event, I am prepared to make one that The Refugee Review Tribunal is excused from further participation, bearing in mind that if the Tribunal wants to come back and make submissions on the Hardiman principle, it may do so.
MR DERRINGTON: Yes. Thank you, your Honour.
HIS HONOUR: Mr Wold-Mariam, do you understand exactly what the situation is here?
MR WOLD-MARIAM: Yes.
HIS HONOUR: What the orders are and what you have to do?
MR WOLD-MARIAM: Yes, sir.
HIS HONOUR: And I counsel you very strongly to get your lawyers to prepare material and to inform themselves properly on the law in relation to the matter, because at present it seems to me that you may have a serious problem, even with your documents in this Court, because they do not state grounds as they are required - as they should. You understand?
MR WOLD-MARIAM: Yes, sir.
HIS HONOUR: We will adjourn this matter to Thursday week, thank you.
AT 11.40 AM THE MATTER WAS ADJOURNED
UNTIL THURSDAY, 26 FEBRUARY 1998
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