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High Court of Australia Transcripts |
Office of the Registry
Melbourne No M40 of 1999
In the matter of -
An application for Writ of Mandamus against THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Respondent
Ex parte -
ULIKS METOHU and MANJOLA METOHU
Prosecutors
Office of the Registry
Melbourne No M18 of 1999
In the matter of -
An application for Writ of Mandamus against THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Respondent
Ex parte -
ALKETA ZANAJ
Prosecutor
HAYNE J
(In Chambers)
TRANSCRIPT OF PROCEEDINGS
AT MELBOURNE ON MONDAY, 11 OCTOBER 1999, AT 10.40 AM
Copyright in the High Court of Australia
MR R.R.S. TRACEY, QC: If your Honour pleases, I appear for the first-named respondent in each of those two matters. (instructed by the Australian Government Solicitor)
HIS HONOUR: Now, Mr Flower, what is the position in this one?
MR FLOWER: Your Honour, this is slightly different than the matters that have been before the Court today in that relief is not sought against a member of the RRT or the Minister through that member. An order nisi is sought against the Minister's delegate who made the primary decision. Now, what - - -
HIS HONOUR: That is the primary decision refusing a protection visa?
MR FLOWER: Yes, refusing a protection visa, essentially on natural justice grounds. What happened after the decision was made was that an application for merits review was made to the RRT and a decision was made by the RRT that we were out of time and that therefore it had no jurisdiction. Subsequently, solicitors acting on behalf of the Metohus applied to the Minister to exercise his discretion under 417 and that decision was refused on the basis that there was no RRT decision in respect of which he could substitute a more favourable decision.
HIS HONOUR: Now, did the Minister embark on the issue or did the Minister say "I will not consider exercising my" - - -
MR FLOWER: I will not consider it, but the former, your Honour. In the middle there was a change of solicitors and subsequently I was briefed in relation to this application.
HIS HONOUR: So it is want of natural justice by the Minister's delegate making the primary decision to refuse protection visa?
MR FLOWER: Yes, it is, your Honour.
HIS HONOUR: Why is that not capable of remission to a Federal Court?
MR FLOWER: We are out of time for the RRT. Therefore we have no RRT reviewable decision. Even if we had one, we are now out of time to appeal to the Federal Court and 478 provides that a Federal Court judge has no power to extend the time therein provided. So with all of those gates shut, it would seem that the procedure that we have implemented in the only one that is open to us.
HIS HONOUR: Assume for the purposes of argument that that is right, and assume that 75(v) application can be made here against the Minister's delegate as an officer of the Commonwealth, what is it that precludes me from remitting it or would limit the grounds open to you if I were to remit it to a Federal Court under 44, is it not, of the Judiciary Act 1903 ?
MR FLOWER: Your Honour, for the purposes of that argument I assume that the exchanges that have taken place earlier this morning are applicable, namely that there is some ground in the Federal Court for arguing that the procedures under the Act have not been observed. So on the basis of that assumption - - -
HIS HONOUR: No, no; without regard to - no doubt I should be aware of this. Division 2 of Part 8 of the Migration Act bites on, amongst other things, decisions of the Refugee Review Tribunal. The decision you seek to challenge is not the decision of the Tribunal that you are out of time. There is, however, a decision made under the Act or the regulations relating to visas which you seek to challenge, is there not?
MR FLOWER: There could well be, yes, your Honour.
HIS HONOUR: The decision of the delegate refusing you a protection visa is assumedly a decision made under the Act or the regulations relating to visas and is therefore a judicially reviewable decision under 475(1). That then gets you into 476, that gets you into the limitations on 476 - yes, I see. That seems to leave open this question of the Federal Court being limited in jurisdiction if I were to remit it to them. Yes.
MR FLOWER: Yes, it does, your Honour, so the same issue then arises, albeit in a different context.
HIS HONOUR: Yes. What, then, do you say I should do with the application?
MR FLOWER: Given that limited window, there is really no restriction on your Honour remitting it, if that be your Honour's view. But in my submission, what is really sought to be agitated by this application is a wider concept of natural justice, particularly in relation to legal representation. There are two avenues of attack. One is legal representation and one is the opportunity to provide submissions and written material where the applicants were unrepresented. Now, in my submission, it is more appropriate, assuming I do not have other hurdles, which I may well do, but it is more appropriate that this Court deal with those broader questions whereas it seems, certainly on the initial reading of the restrictions, that the Federal Court might be limited in the range of issues it can delve into and remedies it can offer.
HIS HONOUR: Yes. Do you say I should give directions then for outlines and the like?
MR FLOWER: Yes, your Honour.
HIS HONOUR: Mr Tracey, what do you say I should do?
MR TRACEY: Your Honour, what we would be seeking would be orders in the same form as your Honour made in respect of the 32 matters because, your Honour, this case - these cases squarely raise that very issue your Honour mentioned about procedure. Can I just indicate, your Honour, that it is raised even more forcibly here because the decision was the decision of the delegate who was bound by the procedural stipulations of the Act.
Can I just correct one thing, your Honour? Your Honour was disposed to think that these decisions might be judicially-reviewable decisions because of the provisions of 475(1)(c). Your Honour, that subsection, as your Honour will see, is subject to subsection (2) and your Honour will see in (2)(d) that RRT reviewable decisions, of which these are some - - -
HIS HONOUR: Where do I find what an RRT reviewable decision is, Mr Tracey? I learn my way round this Act for each case and promptly it moves out of my mind as soon as - - -
MR TRACEY: It is in 411, your Honour, via the definition section, section 5. Section 411(1)(c) is the one - in other words, you have to go to the Tribunal if the delegate refuses you and the decision is characterised as RRT reviewable for that reason.
HIS HONOUR: Then it is not a judicially-reviewable decision. What then follows from that fact for the question, if I remitted it to the Federal Court, the Federal Court would not be limited by 476 and the like?
MR TRACEY: Your Honour, there are some difficulties about remitting it because the Federal Court has to have jurisdiction over the subject matter.
HIS HONOUR: But this is 75(v) jurisdiction that is asserted, is it not?
MR TRACEY: It depends on the construction of 485, which your Honour is more than familiar with, but your Honour will see in 485(1) that:
the Federal Court does not have any jurisdiction in respect of.....decisions covered by 475(2) - - -
HIS HONOUR: But does not have any jurisdiction in respect of - I see, "decisions covered by 475(2)", yes, I see.
MR TRACEY: So that it then becomes - but that is qualified:
other than the jurisdiction provided by.....section 44 of the Judiciary Act.
Then one comes to 485(3) which is not applicable because that only applies to judicially-reviewable decisions and then one then goes to 486 where the Federal Court is given jurisdiction in respect of judicially-reviewable decisions but not 475(2) type decisions.
HIS HONOUR: Sorry, why is that under 486?
MR TRACEY: This does not fall under 486. I am just indicating to your Honour that the Federal Court is not expressly given jurisdiction under this Act in respect of 475(2) decisions. So it then becomes a question of whether the qualification in 485(1) operates so that, if your Honour was to remit under section 44, the Federal Court would thereby achieve jurisdiction, unfettered by the provisions of 476.
HIS HONOUR: Why would it not? Do you say it would not?
MR TRACEY: If it could be done, then it would not be, because 476, as your Honour will see, only applies to review of judicially-reviewable decisions.
HIS HONOUR: Just so.
MR TRACEY: So the question becomes whether 44 operates. That requires the Court to be a court that has jurisdiction over the individuals and the subject matter.
HIS HONOUR: And is that not answered by 39B, is it?
MR TRACEY: No, your Honour, because of the opening words of 485(1).
HIS HONOUR: But 39B Judiciary Act:
The original jurisdiction of the Federal Court of Australia includes jurisdiction with respect to -
in effect, 75(v) matters.
MR TRACEY: Yes, I understand what your Honour is now putting, yes.
HIS HONOUR: So you start with the premise the Federal Court has 75(v) jurisdiction. That is cut back ordinarily, in the way in which we encounter it most often, by the provisions of Division 2 Part 8, but the cutback at the moment seems, at first blush, not to me to bite. Now - - -
MR TRACEY: Yes. I am not seeking to argue, your Honour, that the door is shut; what I am merely wanting to alert your Honour to is that there are issues relating to it that remain unresolved by this Court and the Federal Court.
HIS HONOUR: I jump ahead of myself a little, but there is another matter in the list where I understand the Federal Court stands reserved, the Full Federal Court stands reserved on issues having some resemblance to this or identical to this?
MR TRACEY: Yes, your Honour, that case that I mentioned to you - it is called Applicant A raises just this issue, and they are reserved.
HIS HONOUR: You and I will have to discuss Applicant A in another context, Mr Tracey - - -
MR TRACEY: That is another A, your Honour.
HIS HONOUR: I think I have the same case where you told me that there was no difficulty about my remitter and I gather now that there is some doubt about remitter. Indeed, your submissions signed by you seem to be contrary to the submissions earlier made to me. But those are things of which I give you warning, Mr Tracey.
MR TRACEY: Your Honour has a better memory than I do.
HIS HONOUR: You are about to find your priors read up, Mr Tracey. I have not forgotten the criminal jurisdiction altogether. Now, what am I going to do in this one? Why cannot I remit it? And if I do remit it, is this applicant going to be met with the contention, you have hit a hurdle about jurisdiction?
MR TRACEY: That will depend on the outcome of the pending Full Federal Court decision, your Honour.
HIS HONOUR: Any guesses about when that is likely to come down, Mr Tracey? It is impossible, I suppose.
MR TRACEY: It is, your Honour, we have no idea.
HIS HONOUR: Should I leave this matter in this Court, pending the outcome of those proceedings?
MR TRACEY: Yes, your Honour, that was one of the thoughts that we had in seeking orders similar to the orders you have made in the 32 because what those orders would produce would be the clarification of the precise issues in dispute, bring the matter back on before your Honour on 22 November. With a bit of luck, the Full Federal Court will have spoken by then.
HIS HONOUR: Yes, thank you, Mr Tracey. Mr Flower, what do you say about my directing you to put on a full outline of argument and any amendment of grounds and bring you back on 22 November and see where we get to?
MR FLOWER: I consider that is appropriate, your Honour. I consent to that course.
HIS HONOUR: What form, Mr Tracey, did I make those orders in the 32 matters.
MR TRACEY: Your Honour, I can give you a clean copy of the original draft and then I can tell your Honour what the variations were.
HIS HONOUR: Yes, thank you, that is kind. I knew there was some good reason I did not have a note in the notebook. I was working off minutes.
MR TRACEY: Your Honour, in paragraph 1 you added the words "and serve" after "file". In paragraph (1)(c) you substituted the word "any" for "the" before "enlargement". In (d) you added the words "to any, and which, court". You deleted 2 and inserted in lieu:
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.
Your Honour reserved costs and certified for counsel.
HIS HONOUR: Mr Flower, have you anything to say against my making those orders?
MR FLOWER: Nothing, your Honour.
HIS HONOUR: There will be orders:
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 application 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.
Thank you, gentlemen.
MR TRACEY: If your Honour pleases.
HIS HONOUR: Zanaj is the next matter. Metohu we have dealt with. Zanaj is one of yours, Mr Flower, is it?
MR FLOWER: Yes, it is. I appear for the prosecutor in that matter.
HIS HONOUR: Is that the same issue?
MR FLOWER: Yes, your Honour. I had rather thought your Honour had called them both on together because they were - - -
HIS HONOUR: In truth I had not. In fact I should have and the same orders should be made, should they?
MR FLOWER: The same orders should be made, yes.
HIS HONOUR: Then the same others are made in Zanaj. I am sorry for the confusion.
AT 11.00 AM THE MATTER WAS CONCLUDED
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