Rajasingham, Ex parte - Re Minister for Immigration & Multicultural Affairs & Anor M134/1998 [1999] HCATrans 409 (11 October 1999)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No M52 of 1998

In the matter of -

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

Respondent

Ex parte -

LLOYD JOSEPH VEDAMANIKKAM

Prosecutor

Office of the Registry

Melbourne No M77 of 1998

In the matter of -

An application for Writs of Certiorari, Mandamus and Prohibition against THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS in relation to a decision through his Delegate, KRISTIN STAMPF DE VAGRAS

Respondent

Ex parte -

RAGHUDEVAN DEVASAHAYAM and SURENTHINI RAGHUDEVAN

Prosecutor

Office of the Registry

Melbourne No M123 of 1998

In the matter of -

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

Respondent

Ex parte -

TAARA CHANDRIKA CANDYAH

Prosecutor

Office of the Registry

Melbourne No M129 of 1998

In the matter of -

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

First Respondent

ELIZABETH JENSEN, constituting the REFUGEE REVIEW TRIBUNAL

Second Respondent

Ex parte -

MOHAMED AASIK ABULHALAM

Prosecutor

Office of the Registry

Melbourne No M130 of 1998

In the matter of -

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

First Respondent

E COOKE, constituting the REFUGEE REVIEW TRIBUNAL

Second Respondent

Ex parte -

PUSHPARAJAH MURUGESU

Prosecutor

Office of the Registry

Melbourne No M131 of 1998

In the matter of -

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

First Respondent

J.A. GLAROS, constituting the REFUGEE REVIEW TRIBUNAL

Second Respondent

Ex parte -

JEGATHEESWARAN KANAPATHIPILLAI

Prosecutor

Office of the Registry

Melbourne No M132 of 1998

In the matter of -

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

First Respondent

R. ZALEWSKI, constituting the REFUGEE REVIEW TRIBUNAL

Second Respondent

Ex parte -

MOHAMED FAIZER MOHAMED GHOUSE

Prosecutor

Office of the Registry

Melbourne No M133 of 1998

In the matter of -

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

First Respondent

ADOLFO GENTILE, constituting the REFUGEE REVIEW TRIBUNAL

Second Respondent

Ex parte -

MOHAMED DILSHAD MOUSOOF

Prosecutor

Office of the Registry

Melbourne No M134 of 1998

In the matter of -

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

First Respondent

ADOLFO GENTILE, constituting the REFUGEE REVIEW TRIBUNAL

Second Respondent

Ex parte -

THANALAKSHIMI RAJASINGHAM

Prosecutor

Office of the Registry

Melbourne No M135 of 1998

In the matter of -

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

First Respondent

B.F. KISSANE, constituting the REFUGEE REVIEW TRIBUNAL

Second Respondent

Ex parte -

MOHAMED HALITH RASICK

Prosecutor

Office of the Registry

Melbourne No M136 of 1998

In the matter of -

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

First Respondent

J.A. GLAROS, constituting the REFUGEE REVIEW TRIBUNAL

Second Respondent

Ex parte -

MOHAMED NIZAM MOHAMED NAYEEM

Prosecutor

Office of the Registry

Melbourne No M137 of 1998

In the matter of -

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

First Respondent

B.F. KISSANE, constituting the REFUGEE REVIEW TRIBUNAL

Second Respondent

Ex parte -

DINNUNHAN RAHAMATHULLA

Prosecutor

Office of the Registry

Melbourne No M138 of 1998

In the matter of -

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

First Respondent

ELIZABETH JENSEN, constituting the REFUGEE REVIEW TRIBUNAL

Second Respondent

Ex parte -

MOHAMED FAZY KAPPAMARAIKKAR

Prosecutor

Office of the Registry

Melbourne No M139 of 1998

In the matter of -

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

First Respondent

G. BREWER, constituting the REFUGEE REVIEW TRIBUNAL

Second Respondent

Ex parte -

PASKARAN BALAMURALI

Prosecutor

Office of the Registry

Melbourne No M140 of 1998

In the matter of -

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

First Respondent

DOMENICO CALABRO, constituting the REFUGEE REVIEW TRIBUNAL

Second Respondent

Ex parte -

GOPALA THIRUCHELVAM GOVINDAN

Prosecutor

Office of the Registry

Melbourne No M5 of 1999

In the matter of -

An application for Writs of Certiorari and/or Mandamus and/or Prohibition, or an injunction against MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Respondent

J.A. GLAROS, constituting the REFUGEE REVIEW TRIBUNAL

Second Respondent

Ex parte -

MR ERIC DILENDRAN SOMANADER, MRS THEODORA EVELYN NAVASHIRANI SOMANADER, MISS DEBORAH SHIRANTHI SOMANADER and MR EUAN DILANJAN SOMANADER

Prosecutors

Office of the Registry

Melbourne No M6 of 1999

In the matter of -

An application for Writs of Certiorari and/or Mandamus and/or Prohibition, or an injunction against MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Respondent

J. VRACHNAS, constituting the REFUGEE REVIEW TRIBUNAL

Second Respondent

Ex parte -

MUMTHAJ YASMIN MOHAMED HUSSAIN IBRAHIM, MOHAMED JAVID MOHAMED ANVER, JUNADEENKHAM MOHAMED ANVER

Prosecutors

Office of the Registry

Melbourne No M9 of 1999

An application for Writs of Certiorari and/or Mandamus and/or Prohibition, or an injunction against MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Respondent

B.F. KISSANE, constituting the REFUGEE REVIEW TRIBUNAL

Second Respondent

Ex parte -

MUHAMMED ZANOOS MOHAMED SHALY

Prosecutor

Office of the Registry

Melbourne No M10 of 1999

In the matter of -

An application for Writs of Certiorari and/or Mandamus and/or Prohibition, or an injunction against MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Respondent

B.F. KISSANE, constituting the REFUGEE REVIEW TRIBUNAL

Second Respondent

Ex parte -

MOHAMMED RAZEEN ABDUL HAMEED

Prosecutor

Office of the Registry

Melbourne No M11 of 1999

In the matter of -

An application for Writs of Certiorari and/or Mandamus and/or Prohibition, or an injunction against MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Respondent

DR RORY HUDSON, constituting the REFUGEE REVIEW TRIBUNAL

Second Respondent

Ex parte -

MOHAMED HANISUL REFRI

Prosecutor

Office of the Registry

Melbourne No M12 of 1999

In the matter of -

An application for Writs of Certiorari and/or Mandamus and/or Prohibition, or an injunction against MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Respondent

J.A. GLAROS, constituting the REFUGEE REVIEW TRIBUNAL

Second Respondent

Ex parte -

SATHASIVAMPILLAI MANICKAVASAGAR and MAHESWARY MANICKAVASAGAR

Prosecutors

Office of the Registry

Melbourne No M13 of 1999

In the matter of -

An application for Writs of Certiorari and/or Mandamus and/or Prohibition, or an injunction against MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Respondent

J. VRACHNAS, constituting the REFUGEE REVIEW TRIBUNAL

Second Respondent

Ex parte -

MOHAMED ANVER MOHAMED IBRAHIM

Prosecutors

Office of the Registry

Melbourne No M15 of 1999

In the matter of -

An application for Writs of Certiorari and/or Mandamus and/or Prohibition, or an injunction against MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Respondent

J. VRACHNAS, constituting the REFUGEE REVIEW TRIBUNAL

Second Respondent

Ex parte -

PASUVATHY PARAMANAYAGAM, RAJESWARY PARAMANAYAGAM, KASTHURI PARAMANAYAGAM, THARSHA PARAMANAYAGAM and NAVEATHADSHAN PARAMANAYAGAN

Prosecutors

Office of the Registry

Melbourne No M16 of 1999

In the matter of -

An application for Writs of Certiorari and/or Mandamus and/or Prohibition, or an injunction against MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Respondent

ELIZABETH JENSEN, constituting the REFUGEE REVIEW TRIBUNAL

Second Respondent

Ex parte -

MOHAMED ZAROOK SEYED MOHAMED

Prosecutor

Office of the Registry

Melbourne No M21 of 1999

In the matter of -

An application for Writs of Certiorari and/or Mandamus and/or Prohibition, or an injunction against MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Respondent

MS R. ZALEWSKI, constituting the REFUGEE REVIEW TRIBUNAL

Second Respondent

Ex parte -

MR NOOHU LEBBE MAHROOF, MRS JAZEEMA MAHROOF, FATHIMA MAHFOOLA MAHROOF, FATHIMA MAFAZA MAHROOF, AHAMAD MAFAZ MAHROOF, FATHIMA MUNAZA MAHROOF, FATHIMA MIFRAH MAHROOF, ABDUL MAJITH MAHROOF and MARIAM MAHROOF

Prosecutors

Office of the Registry

Melbourne No M28 of 1999

In the matter of -

An application for Writs of Certiorari and/or Mandamus and/or Prohibition, or an injunction against MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Respondent

J. VRACHNAS, constituting the REFUGEE REVIEW TRIBUNAL

Second Respondent

Ex parte -

JACQULINE RUBANGINI TARSICIUS

Prosecutor

Office of the Registry

Melbourne No M43 of 1999

In the matter of -

An application for Writs of Certiorari and/or Mandamus and/or Prohibition, or an injunction against MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Respondent

G. BREWER, constituting the REFUGEE REVIEW TRIBUNAL

Second Respondent

Ex parte -

DINORSHAN DHANABALA

Prosecutor

Office of the Registry

Melbourne No M52 of 1999

In the matter of -

An application for Writs of Certiorari and/or Mandamus and/or Prohibition, or an injunction against MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Respondent

ROSLYN SMIDT, constituting the REFUGEE REVIEW TRIBUNAL

Second Respondent

Ex parte -

INDRAJITH ILLANKOVAN

Prosecutor/Applicant

Office of the Registry

Melbourne No M59 of 1999

In the matter of -

An application for Writs of Certiorari and/or Mandamus and/or Prohibition, or an injunction against MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Respondent

BRENDAN F. KISSANE, constituting the REFUGEE REVIEW TRIBUNAL

Second Respondent

Ex parte -

IRENE SUNTARARANEE SOMANADER, correctly IRENE SUNTHARARANEE SOMANADER, SATHIAJIT VIVUVASHARAN SOMANADER correctly SATHIAJIT VISUVASAHARAN OLIVER SOMANADER and CHRISTOPHER NIMALARAJ SOMANADER

Prosecutors

Office of the Registry

Melbourne No M70 of 1999

In the matter of -

An application for Writs of Certiorari and/or Mandamus and/or Prohibition, or an injunction against MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Respondent

PETER NYGH, constituting the REFUGEE REVIEW TRIBUNAL

Second Respondent

Ex parte -

KANMANY NAGARAJAH

Prosecutor/Applicant

Office of the Registry

Melbourne No M71 of 1999

In the matter of -

An application for Writs of Certiorari and/or Mandamus and/or Prohibition, or an injunction against MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Respondent

ADOLFO GENTILE, constituting the REFUGEE REVIEW TRIBUNAL

Second Respondent

Ex parte -

VIVEKANANDA HARI DAS and MAHALEDCHIMY HARI DAS

Prosecutors/Applicants

Office of the Registry

Melbourne No M82 of 1999

In the matter of -

An application for Writs of Certiorari and/or Mandamus and/or Prohibition, or an injunction against MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Respondent

ELIZABETH COOKE, constituting the REFUGEE REVIEW TRIBUNAL

Second Respondent

Ex parte -

SELVARAJAH SEENITHAMBY (also known as SEENITHAMBY SELVARAJAH

Prosecutor

HAYNE J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON MONDAY, 11 OCTOBER 1999, AT 9.36 AM

Copyright in the High Court of Australia

________________

MR A.F.L. KROHN: If the Court please, I appear for the prosecutor in this matter. I apologise to the Court for the delay. (instructed by Ravi James & Associates)

MR R.R.S. TRACEY, QC: If the Court pleases, I appear on behalf of the Minister. (instructed by the Australian Government Solicitor)

MR KROHN: Your Honour, it may be of assistance to the Court if I were to hand up a list which sets out 32 matters that are in the list this morning. I have had discussions with the other side concerning these. I understand the respondent proposes consent orders to which the prosecutors in those 32 matters would not object. Perhaps it may be of assistance, your Honour, if your Honour ignores the dates beside the first two names, but the first matter, No M52 of 1998 - - -

HIS HONOUR: Which is Vedamanikkam.

MR KROHN: Vedamanikkam, that is a matter which is concerned primarily with the manner in which the respondent Minister exercises his power and his discretion pursuant to section 417 of the Migration Act. No 2 in that list, Devasahayam & Anor,

No M77 of 1998, that is concerned primarily with the manner in which a decision is made as to whether a person satisfies the criteria for the grant of a protection visa.

Your Honour, the remaining cases in the list raise, in one way or another, and most of them raise the issues concerning both of those points, and therefore it may assist the Court if I indicate that it would be appropriate either for them all to be heard together or that if the first two cases in that list were heard, the other cases waited upon the determination in those two. The factual matrix in the cases, particularly concerning the satisfaction of criteria for a protection visa, vary, but the legal points raised in the grounds in each case are essentially the same.

HIS HONOUR: Is there any reason why they must be heard in this Court? Is there any reason why they cannot be remitted?

MR KROHN: There is, your Honour, in this way. If your Honour would pardon me for a moment. Taking the grounds in relation to the satisfaction of a protection visa, the criteria for a protection visa, the grounds which are raised are basically three. They are, first, that there was a breach of natural justice or - - -

HIS HONOUR: By whom?

MR KROHN: A breach of natural justice by the second respondent, that is the Refugee Review Tribunal. Or, in the alternative, a failure to take relevant considerations into account. In my submission, your Honour, it would not be appropriate to remit that part of the matter which relies upon or deals with that ground.

HIS HONOUR: Why not? And I ask that for this reason, that the limitations on jurisdiction of the Federal Court which are found in 476 are limitations relevantly in (2)(a) "that a breach of natural justice occurred". What exactly is said to be the failure in each case that would enliven, if you like, at common law a complaint of breach of natural justice and, in particular, is it a failure that would fall within one of the permitted grounds, namely failure to follow procedures required by the Act?

MR KROHN: Your Honour, the ground is pleaded - perhaps if I may refer specifically to the ground in No M77 of 1998.

HIS HONOUR: Which one is that? That is Devasahayam.

MR KROHN: Yes, your Honour. Although this particular application deals with an application for review of a decision as to a protection visa by a delegate of the respondent, all of the other cases in the list arise from a decision of the Refugee Review Tribunal. The ground is essentially the same and I direct your Honour to ground 5 in the draft order.

HIS HONOUR: The draft order I have in Devasahayam has three grounds, so we are not starting on a good note.

MR KROHN: I beg your Honour's pardon. It is the first ground.

HIS HONOUR: Yes.

MR KROHN: That is essentially the way that the natural justice point is put in all of the other cases also.

HIS HONOUR: A failure to make all due and proper inquiries.

MR KROHN: That is so, your Honour.

HIS HONOUR: Now, that may invite attention to where lies the obligation to make all due and proper inquiries in a statutory scheme that regulates the way in which, in cases in which the point arises in connection with the Tribunal, the Tribunal goes about its task. Some at least of these issues were considered by Justice Gummow and I in our judgment in Abebe. It is not immediately and self-evidently apparent to me, and now is not the time to debate it, that grounds of want of natural justice, at least in connection with claims concerning the Tribunal, are grounds that preclude remitter for this reason. It may be - and I express no final view on it, of course - that on examination, when you try to identify the obligation which is relied on as an obligation to accord procedural fairness you really run into the terms of the statute. And the statute might - I emphasise might - be said to stipulate exhaustively the content of the fairness that is to be accorded to the applicant. If that is so, either the complaint of the applicant is failure to abide by - what is the statutory expression - procedures required by the Act, or there is no complaint.

Now, now is not the time for us to engage in debate about that but at some point applicants are going to have to confront squarely that kind of debate. Now, whether it is in this Court or in the Federal Court, for the moment I do not know. I need to hear Mr Tracey on this and the related issues. But it is not, as I say, self-evidently apparent to me that the bare fact of plea of want of procedural fairness or absence of natural justice precludes remitter to the Federal Court. So there is that problem that is lurking in all of these files.

The other problem you raise is fail to take relevant considerations into account. Now, how does that work in connection with 476?

MR KROHN: If your Honour would pardon me for a moment.

HIS HONOUR: On its face it seems to be an excluded ground under 476(3)(e):

failing to take a relevant consideration into account in the exercise of a power;

That then drives you inevitably to an identification, does it not, in the particular case of the consideration that it is said was relevant but was not taken into account.

MR KROHN: Yes, that is so, your Honour.

HIS HONOUR: And again, that may drive you - I say again I emphasise "may" drive you - to close analysis of the provisions of the statute for it is, at least at first blush, there that one must look for the relevant considerations. Now again, it may be - again I emphasise the conditional nature of the statement - that on analysis, the ground is not one which may, of itself, exclude remitter. Now, where that leads me to is this, Mr Krohn, and I want to put this on the table so that the parties may consider it and consider it with, I think, some time to think about it. It may be that we have to choose one, or perhaps two, of these related matters and we have to engage in an exchange of submissions, engage in an exchange of submissions that would, if you like, seek to isolate the content of these arguments in a way that will help identify whether the plea, that is the claim for relief on these grounds, is in truth a bar to remitter.

Now, whether one can segregate these grounds and look at only these grounds, putting all other grounds to one side, I do not know. And it may be that the whole matter must be agitated. But the point that it seems to me that the parties may wish to consider, and about which at some point I am going to want considered submissions from both sides, is whether we should not, with a view to efficient use of this Court's very limited time, try to focus on that kind of issue to see whether the bare fact of seeking relief on those grounds does, in truth, stand in the way of remitter to the Federal Court and it may be - again, I express no view - that some of these issues are issues which the parties say should be referred into a Full Court. I express no view on whether that is sensible or not sensible. But I think that we have to grasp these proceedings and see where they are going to go, rather than simply let them lie fallow in the Registry.

Now, what do you say I should now do with this bundle of cases?

MR KROHN: Your Honour, perhaps if your Honour were to see the orders which have been proposed by the respondent, that might assist your Honour.

HIS HONOUR: Yes, of course. Mr Tracey, I have done a lot of talking. You have I think announced your appearance and that is all. Is there anything you would wish to say, before I turn to these consent orders, about the kinds of issue that I have sought to raise?

MR TRACEY: When your Honour sees those orders your Honour will see that we are labouring under similar difficulties to those under which your Honour is labouring because, in every one of these matters, the draft order nisi is in precisely the same form and is not particularised. The result of that is that we are unable to make a judgment as to the appropriateness or otherwise of remitter in each case. It is for that reason, amongst others, that we have sort some elaboration.

Your Honour, there are some similarities between these cases, but there are other aspects of them that render them very different. We have prepared a table in which each of the cases is dealt with. I would seek to take your Honour quickly to it with a view to identifying some of those differences because they are significant and they also, in our submission, make it desirable that the orders that we seek be made. Your Honour will see that in that table, what we have done is to identify the name of the prosecutor in each case, the relevant file number, the date in which the matter was filed in this Court and then the date of the RRT decision, if there be one, and - - -

HIS HONOUR: There is only one, is there, Devasahayam, where there is no decision of the Tribunal? It seems to be.

MR TRACEY: There are two, your Honour. If your Honour goes to the third page, your Honour will see Metohu.

HIS HONOUR: Yes, thank you.

MR TRACEY: Your Honour, there are others where the attack is made only on the exercise, or lack of it, of the non-compellable ministerial discretion under section 417, but the bulk of them, there is an RRT decision which has been adverse but which has not been the subject of a judicial review application in the Federal Court. There has been then a merits application to the Minister under section 417. He has either considered it and made a decision or, as he has done in the bulk of the cases, decided not to consider the application. Now, your Honour will appreciate immediately that in those circumstances, in addition to the problems that your Honour has identified, we are at a loss to see how certiorari or mandamus could possibly be appropriate remedies, at least in respect of the 417 decision or lack of it.

Now, it is for those reasons, your Honour, that we seek the orders that your Honour has before you and once we have seen how each of these cases is put, we will be in a much better position to judge which would be appropriate vehicles for a test case, if there is to be one here, which cases might appropriately be remitted and which should not be. Your Honour, can I just say in that regard that our friend has referred to Vedamanikkam as a potential vehicle for a test case. Your Honour, we will be submitting if that suggestion is pressed after this exercise has been undertaken, should your Honour make the orders, that it would not be an appropriate test case because your Honour will see that that proceeding was filed in June last year. In December last year the Minister made a fresh decision under section 417 in respect of that matter. So that the decision that is sought to be challenged has been superseded. So it would not be an appropriate vehicle.

HIS HONOUR: Those, no doubt, are matters that the parties will have to take up - - -

MR TRACEY: Indeed, and they will emerge, your Honour, if this exercise that we propose is undertaken.

HIS HONOUR: Now, Mr Tracey, what about this question of, if I can put it inaccurately, trying to identify the content of breach of natural justice, failed to take account of relevant considerations.

MR TRACEY: Your Honour, the Minister has argued in a number of cases in the Federal Court - and there is a decision pending before a Full Court - that the extent of the obligation is the statutorily imposed procedures, no more, no less, and that accordingly, common law natural justice is effectively removed by this legislation.

HIS HONOUR: There is, then, a vehicle in the Full Federal Court at the moment where at least the natural justice side will emerge.

MR TRACEY: Indeed, your Honour.

HIS HONOUR: What about the want of consideration of relevant circumstances?

MR TRACEY: Your Honour, I am not aware of any suitable vehicle in the Federal Court to test that and it may well be that when this greater particularity that we have sought is forthcoming, that there is overlap between the two. But there is nothing that we are aware of that would enable that matter to be resolved in the Federal Court at this stage.

HIS HONOUR: Yes. Now, if we were to adopt this programme that you propose, Mr Tracey, that would get something into the hands of the parties and the Court by 12 November 1999. I see that it is a self-executing order. I am not quite certain about that.

MR TRACEY: The reason it is there is because these matters, as your Honour has observed, have lain dormant and would presumably still be lying dormant had it not been for certain initiatives that have been taken. We do not understand our friend to oppose the order.

HIS HONOUR: Part of it, Mr Tracey, is the fact that there are 24 hours in a day and seven days in the week and there are times I wish for 36 and 12.

MR TRACEY: Could your Honour simply add a liberty to apply clause and if difficulty was experienced by our friends in complying, then they can take advantage of it.

HIS HONOUR: What I have in mind is simply bring the matter back on for further directions, say, in the week commencing 22 November. We have sittings commencing on the weeks of 8 and 15 November in Canberra, motion day on 19. Some time in the week of the 22nd may be a day to bring it back, see where the parties are up to, see what has happened if the Full Court has delivered its judgment by then and generally review the matters.

MR TRACEY: Yes, your Honour.

HIS HONOUR: My hesitation about it is every time people have to come back it is another cost to the parties. But subject to what you may say and Mr Krohn may say, I think there may be advantage in bringing you back at that stage of the process.

MR TRACEY: Your Honour, that would be perfectly suitable to us.

HIS HONOUR: If that were so, and I were to make the order sought in minute one and minute three, but not minute two, would that meet your needs?

MR TRACEY: Yes, it would, your Honour.

HIS HONOUR: If I were to fix Monday, 22 November at 9.30 as the return time?

MR TRACEY: Would your Honour bear with me just a moment?

HIS HONOUR: Yes, of course.

MR TRACEY: Yes, your Honour, that would be something that we would be more than happy to have.

HIS HONOUR: I am just sending for my own diary. I am gaily filling in slots in my diary without looking at it, Mr Tracey. We have all fallen for that trap.

MR TRACEY: At 9.30 is pretty safe, your Honour.

HIS HONOUR: If I am in Melbourne it is.

MR TRACEY: Could we leave it on the basis that the Registry would notify us.

HIS HONOUR: Now, Mr Krohn.

MR KROHN: Your Honour, perhaps if I may just indicate that I would respectfully agree it would be appropriate to make the orders not self executing. Perhaps if I might also simply mention that this group is a set of 32 matters and 12 November is just a month away. That is something like a day for each one.

HIS HONOUR: No, Mr Krohn. There is a degree of commonality and overlap and a month is a month is a month. We are going to have to move.

MR KROHN: Indeed, I accept that, your Honour.

HIS HONOUR: It is back to my commercial list days, Mr Krohn. Some habits are deeply ingrained, I regret to tell you.

MR KROHN: I accept that, your Honour, but I mention it only because it is important, as your Honour has indicated, to have sufficient particularity so that it is clear in the summary that is produced for both the parties that a case actually does fit or does not fit.

HIS HONOUR: And no doubt your clients have a degree of passing familiarity with the provisions of the Migration Act, but I rather think they may be depending more upon their lawyers than on their own assessment of the arrangements. So if we were to fix 22 November 1999.

MR KROHN: Your Honour, may I just mention about that - there are other counsel. I myself will not be available from 18 November until 6 December, but if that is the only obstacle, that does not matter.

HIS HONOUR: The only window I have is that week of 22 November, Mr Krohn.

MR KROHN: Right, very good, your Honour.

HIS HONOUR: I would urge both sides to give close attention to the matters, as no doubt they will, that we have spoken of this morning, but it will suffice if I make orders as follows:

In each of the 32 matters beginning with Ex parte Vedamanikkam and concluding with Ex parte Seenithamby -

1. Prosecutor file a summary of argument on or before 12 November -

file and serve, I would have thought, Mr Tracey.

MR TRACEY: Yes, your Honour.

HIS HONOUR:

1. Prosecutor file and serve a summary of argument on or before 12 November 1999 setting out:

(a) grounds upon which any decision the subject of the application is challenged;

(b) the remedies sought;

(c) the reasons applicable for any enlargement of time to enable particular remedies to be sought; and

(d) whether the matter should be remitted to any, and which, court.

2. Adjourn the matter for mention on 22 November 1999 at 9.30 am in Melbourne or at such other time and date as may be notified to the parties by the Deputy Registrar.

3. Costs reserved.

4. Certify for the attendance of counsel in chambers.

Is there any other matter that counsel wish to raise about these matters?

MR KROHN: No, your Honour.

MR TRACEY: No, thank you, your Honour.

HIS HONOUR: May I retain this schedule, Mr Tracey, that you provided?

MR TRACEY: Yes, your Honour.

HIS HONOUR: Has Mr Krohn a copy of it?

MR TRACEY: He has a copy, your Honour.

HIS HONOUR: Thank you.

AT 10.05 AM THE MATTER WAS CONCLUDED