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High Court of Australia Transcripts |
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 ABULKALAM
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 -
JACQUELINE 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, 22 NOVEMBER 1999, AT 9.38 AM
(Continued from 11/10/99)
Copyright in the High Court of Australia
MR R.R.S. TRACEY, QC: In each of those matters, if your Honour pleases, I appear on behalf of the Minister. (instructed by the Australian Government Solicitor)
HIS HONOUR: Yes. Is it convenient to take the group of matters together, gentlemen? Are you content with that, Mr Hurley?
MR HURLEY: No, your Honour, I do not.
MR TRACEY: It is convenient, your Honour.
HIS HONOUR: Yes. Well rather than have them all called, we can take those first 32 matters together. Now, my understanding of the position in those matters is that they fall into three groups or classes. The first of them, Vedamanikkam, is an application that is said to raise only questions under section 417 but then others of them raise 417 questions together with certain others. Is that right, Mr Hurley?
MR HURLEY: It is, your Honour. There are three classes. I have submitted to your Honour's associate, your Honour, some notes of orders sought by the prosecutor in an endeavour to try and facilitate this matter.
HIS HONOUR: Yes.
MR HURLEY: Your Honour, in relation to these matters, the first order - the person in the first order has left the country and that proceeding should be discontinued.
HIS HONOUR: That is which one, Vedamanikkam?
MR HURLEY: No, your Honour, it is M43 of 1999, Dhanabala.
HIS HONOUR: Yes, well perhaps if we deal with it firstly and separately and I know it is possibly death by a thousand cuts but I think it is probably going to prove the most efficient. Now, you say what order should be made, Mr Hurley, in M43?
MR HURLEY: The words that came to my mind, your Honour, were simply struck out. It is an application for an order nisi so application dismissed.
HIS HONOUR: Yes. If I dismiss the application, Mr Tracey, what do you say?
MR TRACEY: Yes, your Honour, with costs.
HIS HONOUR: Is that going to be of any value to you if the applicant has left the country?
MR TRACEY: It may be if he chooses to return at some stage in the future, your Honour.
HIS HONOUR: Yes. Can you resist an order for costs, Mr Hurley?
MR HURLEY: No, your Honour.
HIS HONOUR: Application dismissed with costs; certify for counsel. That is the order in matter M43 concerning Dhanabala. Yes.
MR HURLEY: In the second one, your Honour, which is the one your Honour just mentioned, Vedamanikkam, I can inform the Court -your Honour is correct. This matter did raise a 417 point but there has been a subsequent decision under 417 which affects this person and for that reason the basis of bringing these proceedings becomes unclear and so we do not resist an order that it be struck out. Although these are orders that are sought by us, I understand this point was going to be raised by the respondent and if it was raised it is a point we could not resist so while we seek it being struck out, we agree it is a proper order if that makes things clear to your Honour.
HIS HONOUR: Yes. Mr Tracey, what order do you say I should make?
MR TRACEY: We would seek the same orders as we sought in M43, your Honour.
HIS HONOUR: Yes. Mr Hurley, subject to anything you may say in M52 of 1998 there would be orders: application dismissed with costs, certify for counsel.
MR HURLEY: Your Honour, I do not want to turn this into a long discussion about costs. The only problem is that the 417 decision which overtook it occurred after these proceedings were commenced so there was a standing to bring the proceeding when they were commenced.
HIS HONOUR: That might require us to embark on some close attention to whether you had any rights under 417, may it not, Mr Hurley? I am not sure that that would be entirely to your advantage. It may be.
MR HURLEY: Your Honour, I would submit the appropriate order - costs are a matter for your Honour's discretion.
HIS HONOUR: Yes. The application will be dismissed with costs and I will certify for counsel. Yes.
MR HURLEY: Your Honour, the third paragraph, I believe my client and the respondents may not agree with this. The prosecutor seeks orders that - the prosecutor is in three matters, file and serve a summary of argument setting out four matters which are similar to the orders that your Honour made last time. In fact, they are very similar to the orders your Honour made last time.
HIS HONOUR: What further advance are we making then, if we take Kanapathipillai - I am sorry, I have no doubt mangled the applicant's name and for that I apologise - M131 of 1998. We had, did we not, in that already a summary of argument filed. Why should we, in effect, go back over what has already been filed, Mr Hurley?
MR HURLEY: Because, your Honour, the prosecutor understands that objection will be taken that the three summaries which have been filed are inadequate. Your Honour will see in the affidavit of Ms Haig and the correspondence and the prosecutors seek to place before the Court summaries of argument that more directly address the points that your Honour ordered last time. The prosecutors seek to do it in three matters which cover the field.
HIS HONOUR: Yes.
MR HURLEY: The first matter, your Honour, 129 of 1998 was a person who went to the RRT and then had a section 417 decision by the Minister.
HIS HONOUR: Yes. Actually had a decision under 417 or had, in effect, a decision not to exercise the power?
MR HURLEY: Your Honour describes it correctly.
HIS HONOUR: Yes.
MR HURLEY: An approach was made under 417 and nothing happened under 417. Yes, your Honour. "Decision" is the wrong phrase. The second person, 131 of 1998, is also a person who has been to the RRT and also sought the exercise by the Minister of the 417 power unsuccessfully but they are distinguished because they are from different parts of Sri Lanka which, I am instructed, is a significant matter, or different backgrounds within Sri Lanka.
HIS HONOUR: But does that raise different factual issues rather than different legal issues?
MR HURLEY: Yes, your Honour. It highlights the total of circumstances within that country rather than legal questions within this country.
HIS HONOUR: Yes.
MR HURLEY: Your Honour, M77 of 1998 is included because that is the only case I am aware of where there was a primary decision by a delegate rather than the RRT and then an approach to the Minister under 417 and it is in for that reason because the primary decision was made by a different person or different class of person.
HIS HONOUR: Yes. Now, can I leave 77 of 98 aside for the moment. There may be separate issues arising where the decision challenged is that of a delegate rather than that of the Tribunal. Can I focus then on 129 of 98 and 131 of 98 where there is an RRT decision plus also this 417 question? The grounds of challenge in 129 and 131 to the decision of the RRT include, do they not, allegations of failure to conduct the review in the way in which the Act required, failure to address a necessary question, misconstruing the test either required by the Act or required by the Convention, if that be different, and the challenges are put on grounds which, at least, at first sight, appear to be excluded grounds, excluded from jurisdiction of the Federal Court of Australia. Is that right?
MR HURLEY: Yes, your Honour.
HIS HONOUR: Now, there was some discussion of this last time and I am therefore going back over old ground but it seems to me that there is within, perhaps, these matters, a real and lively question whether, for example, the obligation to accord natural justice, is an obligation that extends beyond the statutory procedures set out in the Act and it occurs to me that applicants who complain of want of natural justice may in truth be - and I am not saying this at all critically - but they may perhaps be making a rolled up plea. They may be saying, "You, the Tribunal did not follow what the Act required of you" and they may also be saying, "And what's more, in addition to what the Act explicitly required of you, you owed me these further obligations."
Now, is there advantage in remitting to the Federal Court part of the cause that would be pending in this Court if I were to grant order nisi? That raises the questions, in effect, whether the Tribunal followed the procedures required by the Act or made an error of law or, in effect, follow the prescribed or permitted grounds under the Act such that if the Federal Court were to determine those issues in favour of the applicant for prerogative relief, no doubt prerogative relief would issue. If they decided those issues against the applicant for prerogative relief, that would leave the bare question pending in this Court, "Is there some greater obligation on the Tribunal than that positively prescribed by the Act?", and it then comes into this Court shorn of some, perhaps all of, the factual issues that may arise.
Now, that is the possible path that I am considering taking and now may be the opportunity for both parties to say what they want to say about my taking such a path.
MR HURLEY: Your Honour, the applicants' preferred position is that this matter, if at all possible, be conducted in the Federal Court. The problem is that the basis of the case that is propounded both in relation to the RRT and under section 417 - - -
HIS HONOUR: Yes, that would leave 417 altogether out. Section 417 would remain in this Court and that seems to me to be a rather narrower question of what effect is to be given to 417(7):
The Minister does not have a duty to consider whether to exercise -
that -
power -
So that again what would remain in this Court would be a narrower area for debate. So 417 would remain here, what I might call larger than statutory natural justice, and that is a very inaccurate way of describing it, would remain in this Court.
MR HURLEY: On that basis, your Honour, the applicants would only say - it does raise the prospect of the matter - with any matter which is cut in half being dealt with twice, being double handled.
HIS HONOUR: Yes, it would, and that is something that Parliament has visited on us and when the second half of it will be dealt with will depend entirely on what other demands are made on this Court but that is what Parliament has decreed, that some part of this jurisdiction will be split off and given to the Federal Court but not the whole of it. There we are. I do not want to compel you to give answers instantly, Mr Hurley. These are matters that you may wish to reflect on for a moment.
MR HURLEY: I was thinking, your Honour, particularly, defining what it was that would be sent to the Federal Court so that that was unambiguous.
HIS HONOUR: Well, put it this way. I have been doing some scribbling over the weekend, Mr Hurley, which probably is going to produce a very ambiguous result, but the general framework I have in mind would be to grant an order nisi on the grounds relating to the RRT, not to grant an order nisi on grounds relating to 417 for the moment - simply adjourn that part of the application off but grant an order nisi on grounds relating to the RRT and then remit to the Federal Court so much of the cause pending in this Court as raises questions whether the RRT failed to observe any and which of the procedures that were required by the Act or the regulations to be observed in connection with the making of the decision because it failed to conduct the review in accordance with Division 4 of Part 7; because it failed to address a necessary question; because it misconstrued the test required by 36(2) of the Act and the regulations or because it misconstrued the expression "for reasons of race or political opinion" in the definition of "refugee" in the Convention and then repeat that kind of formula going down 476.
You will notice that the introductory rubric of that is whether the Tribunal failed to observe any and which of the procedures required by the Act "to be observed":. That tracks 476(1)(a). Then, whether the Tribunal "did not have jurisdiction to make the decision" it did, tracking 476(1)(b), because of the asserted grounds; whether "the decision was not authorised by this Act or the regulations" because of those reasons, tracking (c); whether the Tribunal's "decision involved an error of law, being an error involving an incorrect interpretation of the applicable law", et cetera, as in 476(1)(e), and push those off to the Federal Court and see what happens.
You see, what I suspect, Mr Hurley, and this is no more than idle and cynical speculation, is that the complaints of the applicants, if they are well based - and I have no view on whether they are well based or ill based - are likely to find reflection in a failure to comply with the procedures raised by the Act and if they do not find reflection in procedures required by the Act, then the position of the applicants mounting, what I will call a larger natural justice case, firstly is isolated but, secondly, may be much harder and it may be that this will give a practical outcome where people who have a real complaint about failure to comply with statutory requirements can have that complaint dealt with but if their complaint is larger, it will isolate the enlargement and leave this Court with a rather narrower and more focused issue.
Now, rather than ask you for further submissions at this stage, I might hear what Mr Tracey has to say about this kind of proposal and then see whether either of you wants some further time to give further consideration to it. I do not want to adopt this course only to find that we have pulled a pin out of a hand grenade and let it roll around the floor not knowing quite where it is going to explode. That would not seem to be terribly useful. Now, Mr Tracey, what do you say about my tinkering with a course of that general kind?
MR TRACEY: Your Honour, in principle, with respect, we would have thought that was a very appropriate course to adopt. I would, however, your Honour, given that I have not had the opportunity to obtain instructions about it, ask your Honour's leave for some time to do that.
HIS HONOUR: Yes. How long do you think would be reasonable?
MR TRACEY: We would be in a position, I think, tomorrow morning this time, your Honour, to respond definitely.
HIS HONOUR: Yes. I will, of course, hear what Mr Hurley and the others have to say about that but if I am to do it and if I am to go down this path, I would be glad if both parties could give anxious consideration to whether they, at the moment, see any difficulties then presented by 485.
MR TRACEY: Yes, your Honour.
HIS HONOUR: As at present advised I do not and obviously I cannot seek to bind the parties against later raising some problem under 485. All I can ask for is the best indication of the present view of the parties.
MR TRACEY: Your Honour, we would have thought that if all that is being remitted are reviews of decisions made by the RRT which are clearly judicially reviewable decisions, then that sort of difficulty is not going to arise. Plainly it would arise if 417 was involved. That is a separate point.
HIS HONOUR: Just so. It seemed to me, Mr Tracey, that it may be better to retain the 417 issue here even if it were possible to remit it, as to which I have doubts, because if I describe what is left in this Court as the rump of the matter that may be an unfortunate expression but it is a much narrower set of issues. Section 417, for example, is a set of issues that I would have thought would be capable of debate both sides in an hour.
MR TRACEY: Yes.
HIS HONOUR: I rather suspect you would stand, read the Act and it may be that you would then sit down.
MR TRACEY: Yes, your Honour.
HIS HONOUR: And likewise the debate about is there some greater ambit for natural justice or error of law or Wednesbury unreasonableness, though I think Wednesbury unreasonableness does not march across the stage in any of these, does it? I am not conscious of it.
MR TRACEY: May I ask whether your Honour has in contemplation remitting all of the matters involving the Tribunal or just the two that have been nominated by our friend as what I might describe as test cases?
HIS HONOUR: Lead cases.
MR TRACEY: The difficulty we have, your Honour, is that since there has not been compliance with your Honour's order of 11 October, we are really not in a position at this stage to know whether the others raise precisely the same points.
HIS HONOUR: The present inclination is to remit the lot.
MR TRACEY: Yes, your Honour.
HIS HONOUR: And to remit them absent some reason not to, remit them on the same basis so that the issues that would be remitted to the Federal Court or the parts of the cause that would be remitted to the Full Court would be cast in the same way. The purpose of doing that would be that, at least at first blush, it would seem rather more difficult then for the applicants to come back and say, "No, by the way there was this further subtlety in the case, not previously mentioned, which now we raise for the first time X months after remitter".
MR TRACEY: Yes.
HIS HONOUR: They have put on three outlines. They say those are typical. Why should I not take them at their face value?
MR TRACEY: Yes, your Honour.
HIS HONOUR: Do you see difficulty in my adopting that kind of course, Mr Tracey?
MR TRACEY: Not at all, your Honour, so long as the prospects of us subsequently being met with additional arguments that have not, thus far, been raised in other cases, is not able to arise. Subject to that, no, your Honour.
HIS HONOUR: I do not feel I can positively block them out by any useful procedural step. The remitter that I have in mind is founded though, let there be no doubt of it, on the proposition that the outlines of argument that have been filed accurately reflect, to the extent they do, the issues which it is sought to agitate in each of the matters to which they relate, both directly and indirectly.
MR TRACEY: Yes.
HIS HONOUR: And that it would seem to me, at least, to follow, at first sight, that the applicants then would have a deal of difficulty in coming later to say, "No, we did not mention it earlier but there is an additional point".
MR TRACEY: Yes, your Honour.
HIS HONOUR: Now, that, I think, is as far as the matter can be taken at the moment.
MR TRACEY: That is very helpful, your Honour, and we will, of course, take under account everything your Honour has said with a view to informing the Court at a time convenient to your Honour, perhaps tomorrow morning, of the Minister's view.
HIS HONOUR: Now, it would seem to me, Mr Tracey, and again I need assistance on this, to be necessary that I go to the stage of granting order nisi.
MR TRACEY: Yes, your Honour.
HIS HONOUR: As I say, my inclination is to grant order nisi on the grounds relating to RRT but standover so much of the application as seeks to agitate grounds under 417 or other grounds.
MR TRACEY: Your Honour, we would only wish to reserve our position to this extent on the orders nisi, your Honour. Your Honour will be conscious that these applications generally have been made well out of time.
HIS HONOUR: Yes, I do.
MR TRACEY: Now, your Honour, the reasons will presumably vary from case to case and one of the reasons that your Honour made orders on the last occasion was so that the particular reasons relating to each case would be exposed. Now, that has happened and, your Honour, we would not want to be deprived of the opportunity at an appropriate time should we be so instructed to ask the Court to vacate any order granting an order nisi on the basis that no proper basis had been established for the lateness of the application.
HIS HONOUR: As opposed that is, Mr Tracey, to saying that delay represents a reason not to go from order nisi to order absolute, that is you would seek to reserve the position of striking at the order nisi?
MR TRACEY: Well, yes, your Honour, because we may have had the opportunity to argue on a case-by-case basis that your Honour ought not to grant the order nisi for that reason.
HIS HONOUR: Yes, I see.
MR TRACEY: So that we would be urging you to exercise your discretion at the very early stage to avoid subsequent and unnecessary expense.
HIS HONOUR: The horse has got a fair way out of the stable by the time I have remitted it, has it not, Mr Tracey?
MR TRACEY: Yes, your Honour.
HIS HONOUR: And that may be a matter that you will take into account in telling me what you have to tell me tomorrow morning.
MR TRACEY: Yes, your Honour.
HIS HONOUR: Part of what troubles me is that I suspect that the group of 32 or so with which we are concerned, or is 30 is it now, are being dealt with globally and are being dealt with, if not on a shoestring, then not much more and I doubt those are matters that your client is well used to having to deal with.
MR TRACEY: Yes, your Honour, and they will all be matters that are given earnest consideration in the next 24 hours.
HIS HONOUR: Now, what I had done on Friday and over the weekend was to try to put together forms that might be useful. Now, the three I took as examples are probably not appropriate examples at all. Muthusamy I took; Kanapathipillai I took and Zanaj I took. Zanaj I think is not part of these 30 or 32.
MR TRACEY: Well, no, your Honour, but I am also instructed in Zanaj and everything your Honour has said would have equal application, I think, in relation to that case.
HIS HONOUR: Yes. Well, we will come to that. That is yours, is it, Mr Flower?
MR FLOWER: Yes, it is, your Honour, and I would seek a convenient point to resist the suggestion my learned friend has just made. In my submission, there are good grounds in both those matters, Zanaj and Metohu, to adopt a different course. If I can make some submissions in due course.
HIS HONOUR: Yes. Well, before the close of proceedings I will give the parties copies of the drafts I have got, whether or not they are adopted in any matters or the matter in which they were prepared may be altogether separate and distinct questions, but they will be useful tools to indicate the kind of drafting that I had in mind as the way around the problem.
MR FLOWER: If your Honour pleases.
HIS HONOUR: Well, now, Mr Tracey, you say you would like until tomorrow morning to deal with it; is that right?
MR TRACEY: If your Honour pleases.
HIS HONOUR: Yes. Is there any reason not to, Mr Hurley?
MR HURLEY: No, your Honour.
HIS HONOUR: And I know it means coming back on another day but I think it probably will prove to be the shortest way home.
MR HURLEY: If I can just raise one point, your Honour, in relation to the third case we selected, M77 of 1998 - - -
HIS HONOUR: Devasahayam, yes.
MR HURLEY: - - - recalling that that is a decision of a delegate and not of the RRT, it raises the point as to whether the Federal Court had any jurisdiction in relation to it at any point on the current view.
HIS HONOUR: Now, as to that, it seemed to me that there were difficulties about my framing a remittable part of the cause.
MR HURLEY: Yes, your Honour.
HIS HONOUR: I understand you not to suggest I can.
MR HURLEY: Well, your Honour, perhaps if your Honour remits so much of it as - it begins to beg the question, your Honour, as to the Federal Court finding - - -
HIS HONOUR: Yes, it does and I will not remit to the Federal Court something which leaves open and entirely at large any question of jurisdiction. That, I think, is to burden the Federal Court unnecessarily and inappropriately. The delegate questions that you raise in Devasahayam are of what kind?
MR HURLEY: Again, your Honour, it is the global natural justice point that it exceeds or stands outside of the grounds of relief granted by Part 8.
HIS HONOUR: Well, now, that may or may not be affected by the bundle of, is it 300, cases that Justice Gaudron had in Sydney about a month ago. There is a group of cases which came before Justice Gaudron about a month ago concerning, I think, decisions by the delegate and allegations of want of compliance with statutory requirements, notably with transmission of papers and the like. It may be that the delegate questions are ones that may have to wait in behind the fate of those actions in any event as I think that the applications or the actions that have been instituted in relation to those cases are ones that, if they were to succeed, would have a considerable effect on decisions of the delegate.
MR HURLEY: Well, subject to that issue, your Honour, I do not believe the prosecutors, although I would have to seek instructions, would dissent from your Honour's proposal.
HIS HONOUR: Yes. Now, Mr Tracey, what about Devasahayam and the delegate issues?
MR TRACEY: Yes. Well, your Honour, we would submit that there really is not anything that can be remitted in Devasahayam and we say that without having seen a summary - - -
HIS HONOUR: Yes.
MR TRACEY: - - - and that being so and given that there are other like cases ahead of it on what your Honour has just said, it is probably better that it be adjourned - - -
HIS HONOUR: Just stand out of the list generally.
MR TRACEY: Yes. Yes, your Honour.
HIS HONOUR: Yes, yes. Well, I think that there is much to be said for standing Devasahayam and similar cases out of the list. I would be glad if the parties could together see if they can reach agreement about which, other than Devasahayam, are cases of like kind so that I can tomorrow have a list of what might be called the delegate and 417 cases to stand out of the list generally and then also address whether any remitter is to be made of the other cases and, if so, on what terms.
MR TRACEY: Yes, your Honour.
HIS HONOUR: My associate will hand to you just a bundle of assorted orders that were sketched out over the weekend and Friday, gentlemen. As I say, they are no more than chopping blocks that may be useful to you to indicate the way in which my mind was working.
MR TRACEY: Thank you, your Honour.
HIS HONOUR: Yes. Now, if I adjourn over these 32 matters until 9.30 tomorrow. I will need to be finished no later than 11.00 tomorrow but there is no reason, I would have thought, why we could not dispose of the matter in that time, is there, gentlemen?
MR TRACEY: No, your Honour.
MR HURLEY: No, your Honour.
HIS HONOUR: No. Well, I will stand these over until 9.30 tomorrow and simply reserve the costs for the moment.
AT 10.15 AM THE MATTER WAS ADJOURNED
UNTIL TUESDAY, 23 NOVEMBER 1999
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