Candyah, Ex parte - Re Min for Immig & Multicultural Affairs M123/1998 [1999] HCATrans 556 (23 November 1999)

IN THE HIGH COURT OF AUSTRALIA

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

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 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 TUESDAY, 23 NOVEMBER 1999, AT 9.35 AM

(Continued from 22/11/99)

Copyright in the High Court of Australia

________________

HIS HONOUR: Now, Mr Tracey, what is the position from your end of the table?

MR TRACEY: Your Honour, may we provide you, firstly, with a chart which I will hope make the explanation of our position somewhat clearer than might otherwise be possible.

HIS HONOUR: Thank you.

MR TRACEY: Your Honour, the first group of cases where there have been primary decisions, and your Honour mentioned yesterday that your Honour thought that it might be useful to adjourn them off and have them come up behind the cases that were dealt with by Justice Gaudron recently in Sydney. Can I tell your Honour that they are different from the cases her Honour had to deal with because those cases were all RRT decision reviews and - - -

HIS HONOUR: They were not delegate decisions?

MR TRACEY: No, your Honour, and can I tell you that they number not in the hundreds but the thousands because they are representative actions. But, your Honour, there is another reason why we think that your Honour's initial inclination ought to be followed and that is that your Honour may remember on 11 October I told your Honour about the reserved decision in the Federal Court in Applicant A which does squarely raise this question of jurisdiction. So, we agree, for that reason, that those cases ought to await the outcome of the Full Federal Court decision and any appeal that might be sought to be brought from that.

HIS HONOUR: Now, do I identify those cases that fall into that group readily enough from this chart in some way, Mr Tracey, or is it easier to identify them in some other way?

MR TRACEY: No, they are at the top of the chart, your Honour.

HIS HONOUR: So, it is Devashayam, Metohu?

MR TRACEY: Yes, just those two, your Honour; M77 and M40.

HIS HONOUR: Yes.

MR TRACEY: So, that is the first category. The next category is a stand-alone 417, Candyah, which is M123 and, your Honour, I will say no more about that at this stage because our learned friend, Mr Hurley, has indicated that he wishes to make an application to your Honour for leave to amend the draft order nisi in that case so as to challenge the RRT decision as well. If he is successful in persuading your Honour, it will fall into the broader pool. So, I pass over that at the moment.

Your Honour, in the next category are RRT decisions and your Honour has prepared draft orders in respect of the last two, Zanaj and Muthusamy, and the first two are cases which the solicitor is Ravi James and they are pleaded in the same way as the great bulk of these cases where your Honour has prepared a draft order in one of them as a sample, Kanapathipillai. So that, your Honour, we would submit that subject to some submissions I am about to make, it would be appropriate to hold your Honour's orders in the last two and make orders in the first two in that group in the same terms as your Honour might be disposed to make in relation to the great bulk.

Now, your Honour, can I come to those orders.

HIS HONOUR: The question of what we do about the order nisi, what is your position about that because I, too, have given some further thought to that overnight? What do you want to seek to preserve, if anything?

MR TRACEY: Your Honour, we do not seek to insists that the applicants cross the hurdle of persuading your Honour that there is a proper reason for the late applications in each case, so that we are therefore instructed not to oppose an order in each case to grant the order nisi at this stage, but the Minister does seek in each of the cases to reserve his right to argue, as a matter of discretion, when and if those matters come on for hearing in the Court, that the delay tends against the grant of relief.

Now, your Honour, the more substantial concern that the Minister has with the draft orders is that they, although in no way intended to give rise to this result, may be construed, not necessarily in this litigation although there were some indications from the Bar table yesterday that suggested that they may have been misunderstood even by counsel appearing for applicants in these matters, but, more generally, in cases of a similar character that might be pending or may yet to be commenced, that they in some way reflect a position adopted by your Honour which would leave it open to applicants on remittal to the Federal Court to pursue arguments that are simply not open as a result of Abebe and Eshetu.

The Minister's concern, therefore, leads to the submission that whilst it does not produce an ideal outcome, at least it removes that difficulty if your Honour was disposed to make the orders but leaving out the particulars. The concern, for example, is that it might be perceived, for example, that - - -

HIS HONOUR: That 420 has risen above where it should?

MR TRACEY: Yes, that it was open to the Federal Court - I know that is not your Honour's intention.

HIS HONOUR: No, and I understand the concern you have if, from your end of the table, you were content to let is go forward without particulars, then, if anything, if there is detriment in it, it seems to me to be detriment to your side rather than to the applicants' side - - -

MR TRACEY: It is, yes.

HIS HONOUR: That being so, unless Mr Hurley can point to some detriment which he says follows to him, I am not going to stand in the way of letting it go forward on the broader - not so much broader basis - as on a basis without specified particulars of the kind I had attempted to draw.

MR TRACEY: Yes. Well, we are indebted to your Honour for that indication and subject to anything our learned friend has to say about it, I do not return to it. What I can say is that the Minister has weighed the competing detriments and has determined that he is prepared to, as it were, confront the Federal Court without the particulars in preference to the difficulty that was perceived to arise and to which I have just referred.

Your Honour, that leaves one other issue from the Minister's perspective and it is this: your Honour, the orders as they presently stand would see, in each of the cases where there is a section 417 issue, the order nisi granted but the further dealing with those issues adjourned indefinitely pending the outcome of anything that the Federal Court may decide. Your Honour, the Minister would urge your Honour to make one exception and we have suggested that the appropriate vehicle may be M135, and that Your Honour, in that case, refer the matter to a Full Court so that it can take its place in the line of cases awaiting determination by way of being a test case on the 417 issue, so that if the High Court, by the time the Federal Court has dealt with the remitted portions of all these matters, has had the opportunity to look at the 417 issue and pass upon it, then it would carry with it, in theory, all the other 417s that are awaiting.

The alternative, your Honour, would involve waiting until all these other cases have got through the Federal Court - and they will not all get through together because of the docket system - and then, if need be, listing the 417 for hearing in the High Court, by which time there will be another year gone by, and these cases, as your Honour knows, in some instances, go back to 1996 and they have been sitting in the list dormant. We would submit that it is undesirable for there to be a further delay of that magnitude which would inevitably follow.

HIS HONOUR: Let it be assumed for argument sake that I were minded to adopt that kind of approach. Taking the vehicle you suggest, there would be, would there not, a grant of an order nisi on what I might call RRT grounds?

MR TRACEY: Yes, your Honour.

HIS HONOUR: Would there be a grant of an order nisi on 417 grounds or would I refer into the Full Court what, a question? Would I make the application returnable or the balance of the application returnable to a Full Court? What would be the procedural steps that I would have to undertake to achieve the result you say is desired?

MR TRACEY: Well, either route would achieve it, your Honour. We would submit that the former is probably the preferable course.

HIS HONOUR: Grant order nisi?

MR TRACEY: Yes, because you would then identify the issue and then refer the matter into the list to be heard by a Full Court. The alternative course would be for your Honour to deal with it.

HIS HONOUR: Then the difficulties you get into are these, Mr Tracey: if I hear it and decide it - leave aside when in the list it would be done - and it is sought to test it, appeal is brought and then you have less than the whole of the Court hearing the appeal, if it is a case that warrants the attention of the whole Court, it is undesirable that that not be possible. If it is a case that does not warrant the attention of the whole Court, is it a productive use of judicial time to have one single Justice deal with it and then a Bench of five or a Bench of three deal with it? Those are the practical considerations that underlie an apparent reluctance on my part to do any single Justice work.

To grant an order nisi, how would I refer it into the Full Court? Would I state a case under section 18 of the Judiciary Act 1958 ? I could not, could I, in this partial way, direct the return of the application for order nisi to be returnable before a Full Court in the first instance?

MR TRACEY: Yes, I think your Honour could, in so far as it raises issues under section 417. Your Honour could narrow it to that.

HIS HONOUR: Could I just track through with you the rules that would enable me to do it. I am sorry to delay on what seems to be an arid procedural dispute but if I am going to do it, I want to get it right.

MR TRACEY: Yes, your Honour.

HIS HONOUR: You see, I could, under Order 55 rule 2, application being made to a Justice:

direct that the application be made by notice of motion to.....a Full Court -

and then - - -

MR TRACEY: It was rule 4 that I had in mind, your Honour.

HIS HONOUR: I see, make:

An order to shew cause.....before a Full Court -

"on the grounds that"?

MR TRACEY: Yes, your Honour.

HIS HONOUR: Yes, I see, having first remitted so much of the matter as raises other issues of a kind identified in the order for remitter.

MR TRACEY: Yes, your Honour.

HIS HONOUR: Then, subject to that, direct order nisi returnable before a Full Court on the grounds of 417.

MR TRACEY: Yes, your Honour.

HIS HONOUR: Yes, I see.

MR TRACEY: Your Honour, they are the submissions for the Minister.

HIS HONOUR: Well now, Mr Hurley, firstly, Devashayam and - now, Metohu it not yours. It is Mr Flower's, is it not. Devashayam is yours.

MR HURLEY: Yes, your Honour. We seek in that - this is the one, I take it, where your Honour is thinking - - -

HIS HONOUR: No, Devashayam is the first on Mr Tracey's table. Devashayam is one that Mr Tracey suggests simply stand out of the list generally to await the decision in Applicant A.

MR HURLEY: Yes, your Honour. I have prepared draft orders that I have given to your Honour's associate, hopefully, to like effect and your Honour will see the order we seek is that that matter of Devashayam stand out of list, as your Honour said. So, we agree with that, your Honour.

HIS HONOUR: Well, let me then begin by making an order in Devashayam.

In Devashayam, which is M77 of 1998, the application is adjourned to a date to be fixed on not less than three clear days; notice in writing to other parties; reserve liberty to apply generally; reserve costs; certify for counsel.

Do you, Mr Hurley, have any comment on those orders?

MR HURLEY: No, your Honour.

HIS HONOUR: Mr Tracey, do you?

MR TRACEY: No, thank you, your Honour.

HIS HONOUR: Then there are orders in that form in M77 of 1998, namely:

(1) Application adjourned to a date to be fixed on not less than three clear days notice in writing to other parties.

(2) Reserve liberty to apply generally.

(3) Reserve costs.

(4) Certify for counsel.

Yes.

MR HURLEY: Your Honour, the second one that affects me in Mr Tracey's list is the matter of Candyah. We deal with that, your Honour, in order 2 of our proposed orders. This is the one, your Honour, where we seek leave to file, as it says in the order:

That leave be granted in M123/98 (Candyah) to file an amended draft Order Nisi to seek, in terms identical to the relief sought -

by the next one -

relief against the decision of the RRT made on 23 January 1997 in addition to the relief -

Mr Candyah -

currently seeks against the respondent Minister.

We do seek, your Honour, that leave. It is simply, I am instructed, an oversight that he did not seek relief against the RRT and only sought relief under section 417. So, we seek leave, your Honour, that he have leave to file - - -

HIS HONOUR: Now, I understood from Mr Tracey that at the very least he did not agree with that proposal. Mr Tracey, what is the attitude of the respondent?

MR TRACEY: I am sorry, I did not intend to convey that impression. No, your Honour, we have no difficulty in consenting to orders in those terms.

HIS HONOUR: Yes, thank you, Mr Tracey. Then in M123 of 1998, the matter of Candyah:

(1) Applicant has leave to file amended draft order nisi substantially in the same terms as draft order nisi filed in matter No M129 of 1998 so as to seek relief in respect of decision of RRT made 23 January 1997.

Mr Hurley, it will be necessary for those instructing you to file that amended draft order nisi promptly. How soon can that be done?

MR HURLEY: By the end of the week, your Honour, by Friday - - -

HIS HONOUR: The 26th.

MR HURLEY: Yes, your Honour.

HIS HONOUR: Then I will amend the order so that it reads:

(1) Applicant has leave to file on or before 4 pm, 26 November 1999, amended draft order nisi substantially in the same terms as draft order nisi filed in matter No M129 of 1998 so as to seek relief in respect of decision of RRT made 23 January 1997.

That then puts Candyah into the same basket as the remaining 28 applications, does it?

MR HURLEY: Yes, your Honour, and then they are covered in relation by paragraph 3. Your Honour will see there is a list attached of the 28 numbers in their numerical order.

HIS HONOUR: All of those then, therefore, are matters in which a challenge is made both to a decision of the RRT and seeks to raise an issue concerning the operation of section 417, is that right?

MR HURLEY: Yes, your Honour.

HIS HONOUR: The general intent is that there be an order nisi granted now on, firstly, RRT grounds and also in one, but not the others, on a 417 ground. Mr Tracey has suggested that the matter numbered - - -

MR HURLEY: I think it was M135 of 1998, your Honour, the eighth one, Rasick. Your Honour, we do not object - - -

HIS HONOUR: To be taken as the 417 test, yes.

MR HURLEY: Your Honour, I would just seek an indulgence from the Court to actually have a moment to look at these matters because there are subtleties in the correspondence that this end of the Bar table would draw the Court's attention to. "Subtleties" is the wrong word - points in the correspondence. We would seek the vehicle be the one that most clearly raises the points that the prosecutors would seek to raise and I do not know whether it is No 8, Rasick, or another matter. I will just seek some time to seek instructions as to whether that one is the one that is the most appropriate vehicle from this end of the Bar table.

HIS HONOUR: Yes.

MR HURLEY: That was the first point, your Honour. In relation to the grounds on the RRT, the particulars point, if the Minister does not want the particulars, your Honour, then the orders nisi can be as we have set out at paragraphs (a), (b), (c) without the Roman numerals.

HIS HONOUR: Yes.

MR HURLEY: As your Honour and Mr Tracey observed, if the Minister does not seek that particularity, the prosecutors will abide by that.

HIS HONOUR: Yes. You mentioned, I think, only (a), (b) and (c). Would it not be also - - -

MR HURLEY: And (d).

HIS HONOUR: And (d).

MR HURLEY: Yes, your Honour.

HIS HONOUR: Yes. Now, when we come to identify a vehicle for the 417 challenge, what do you say about Mr Tracey's suggestion that one of these matters be chosen as a 417 vehicle and that that matter be made returnable before a Full Court - that an order nisi be granted made returnable before a Full Court?

MR HURLEY: We would join with that, your Honour. We do not oppose that course, your Honour.

HIS HONOUR: Now, how are we going to identify the grounds on 417? Can I go to any of these matters and find in them a suitable form of words for the 417 grounds?

MR HURLEY: If your Honour goes to M129, there was a summary of argument filed in the matter of Abulkalam. I am sorry, your Honour, perhaps a better one is M52 of 1998 which is unfortunately no longer a proceeding in the Court, the matter of Vedamanikkam?

HIS HONOUR: That really does make it a bit awkward. That is the one file, of course, we do not have in Court, Mr Hurley. We have every other file that there is in the Registry.

MR HURLEY: Your Honour, if I can hand to your Honour the outline - the prosecutor's summary of argument. The point is, your Honour, it raised the full breadth of the arguments that the prosecutors would seek to rely on.

HIS HONOUR: Do you follow which one we are looking at now, Mr Tracey?

MR TRACEY: Yes, I have it, your Honour.

HIS HONOUR: You have the relevant document, do you?

MR TRACEY: Yes, I do.

HIS HONOUR: Yes, thank you.

MR HURLEY: Your Honour will see, under numbered headings, there is asserted a jurisdictional error under paragraph (1) with four subparagraphs, and then - - -

HIS HONOUR: But these are not cast in the form of grounds, are they, that I can usefully put into an order nisi. That is what I am after. If I am going to give you an order nisi, I want some grounds that will go to a Full Court that can be usefully treated by that Court.

MR HURLEY: In that matter, your Honour, there is a draft order nisi that attempts - that describes those grounds. If I again can, through your Honour's associate - - -

HIS HONOUR: This is Vedamanikkam, is it?

MR HURLEY: Yes, your Honour.

HIS HONOUR: Yes, we now have the file in Vedamanikkam, thank you.

MR HURLEY: If your Honour goes to page 2 - - -

HIS HONOUR: Let me take, for example, page 4, ground 2: "failed to appreciate that his power....enabled him either."

As cast, that is a ground that would require consideration of what went through the Minister's mind. That would seem to be a question to which evidence would have to go and about which findings of fact would have to be made: how did the Minister approach the issue or the task. I see great difficulty about returning an order nisi of that kind in a Full Court on affidavit evidence.

The hurdle you have to surmount on these 417 arguments is, is it not, as I rather flippantly said to Mr Tracey yesterday, 417(7): no duty to consider whether to exercise, whether requested or in any other circumstances. Now, on its face, that seems, at least arguably, to present a bit of a difficulty in your way. Now, how am I going to usefully put into a Full Court grounds which require findings of fact about how the Minister thought when confronted with letters and the like from your client?

MR HURLEY: Your Honour, the prosecutors were proposing to proceed by placing before the Court documents received under the FOI Act, Freedom of Information Act and establishing the documents by which the request under 417 was processed and invite the Court to draw inferences from that.

HIS HONOUR: And is the Minister to be permitted to put on any affidavit in answer to that?

MR HURLEY: Yes, your Honour, he would have to.

HIS HONOUR: He would have to.

MR HURLEY: Yes, your Honour. On that basis, your Honour, we would submit that the same material would be before a Full Court as would be before either a single Judge of this Court or of the Federal Court were that factual question to be remitted.

HIS HONOUR: Yes. Well, present inclination, I think, Mr Hurley, is this: subject to what Mr Tracey may say to me, if I were to grant an order nisi in the terms sought, being terms of the kind recorded in Vedamanikkam, I would give directions about filing of material in answer to it and then consider what steps are to be taken, if any. I would not, on the present state of the material, be inclined to make an order nisi that would be returned before a Full Court. I think it would have to come back to me for directions.

MR HURLEY: We would not oppose that, your Honour.

HIS HONOUR: Yes. Again, is just further delay, further cost or time. Mr Tracey, what do you say about this 417 conundrum?

MR TRACEY: Yes. Well, I understand the difficulties that your Honour has raised and we would not oppose the course your Honour has suggested. Could I just say this though, that if, at the end of that process, your Honour, we were of the view that there was a proper basis for asking your Honour to dismiss the application for an order nisi without the matter going further, that we might have that opportunity at the directions hearing - - -

HIS HONOUR: I would not want to be foreclosing any possible manner of proceeding in the matter, Mr Tracey. Indeed, I have given no thought to whether it would be possible to state a section 18 case in a matter of this kind. It may not be. But if there could be a bare question of law stated on the basis of agreed or found facts, it may be that that will lead to the kind of solution that your proposals were directed, namely a bare point of law being determined once for all by the Court.

MR TRACEY: Yes. Well, your Honour, we, with respect, agree with that proposal and would consent to orders along those lines.

HIS HONOUR: Yes. Well, then, Mr Hurley, we still have this problem of which is the proper vehicle for 417.

MR HURLEY: Your Honour, I would seek some time - it would be only hours - to seek instructions as to which one - - -

HIS HONOUR: Well, I will tell you what. It means you are going to have to come back again, Mr Hurley. Now, I have already spent two mornings away from writing, where we have had sittings in Canberra, we have had sittings in Perth. Now, there comes a point where you are going to be told "enough is enough". The work of this Court extends beyond its migration work.

MR HURLEY: Your Honour, if your Honour will select - we would seek No 2, your Honour, on my list of page 5 of the orders. It is the matter of M129 of 1998, which is Abulkalam, together with No 8, which is Mr Tracey's selection of Rasick.

HIS HONOUR: No.

MR HURLEY: No, your Honour?

HIS HONOUR: Enough. We have not got time for Justices of this Court to be running practise lists.

MR HURLEY: Yes, your Honour. Well, your Honour, I am afraid I will have to seek instructions from those who instruct me on the question as to which of those cases best raises the points.

HIS HONOUR: Yes, very well, by all means. You should do that, knowing that there is great likelihood that you will not be able to get another morning out of me this year. I have got the Canberra sittings starting next week and sometime I have to find some time to write some judgments.

MR HURLEY: Yes, your Honour.

HIS HONOUR: It is unsatisfactory, Mr Hurley, that you should come here without knowing these matters.

Now, what are we to do with the ones other than 417? What I am minded to do is, in all of the 29 matters which include Candyah, to make orders for the moment that would grant an order nisi on the RRT grounds, remit to the Federal Court those grounds; otherwise adjourning the applications for order nisi to a date to be fixed and give whatever consequential directions are needed to permit the matters to proceed in the Federal Court. Do you have anything to say against that, Mr Hurley?

MR HURLEY: No, your Honour, except can I just - your Honour mentioned the figure 29. Your Honour, where we seek the orders nisi are the 28 on page 5 of the proposed orders, there are a total of 30 cases before your Honour. We seek orders nisi in 28, Nos 1 to 28 on page 5. They are the ones, your Honour, where there is an RRT matter clearly raised. There are two complications, your Honour, which are the ones addressed in paragraph 1. There is the Devashayam matter which your Honour has dealt with and there is a further matter, M70 of 1999, where I have recently been instructed that that person has in fact had proceedings in the Federal Court and therefore we ask that that matter at this stage be taken out of the list because it raises questions that have only just become apparent and, as your Honour will appreciate, I do not ask - - -

HIS HONOUR: This is really unsatisfactory, Mr Hurley. This is not to happen again. Yes.

MR HURLEY: I draw that to the Court's attention so as to prevent the Court making orders that might - to assist the Court to make orders that will not create further complications. So, your Honour, we seek the 28 orders nisi in the list at page 5. We seek that the other two matters - your Honour has made orders in Devashayam and matter M70 of 1999, we simply seek, I believe, like orders that it be stood out of the list with liberty to apply to either side on three days notice.

HIS HONOUR: Yes. Now, in each of these matters, Mr Hurley, there is going to have to be a separate order. The separate order is going to have to reflect the particular grounds in the application. Can we take one of these and identify which grounds are properly described as the "RRT grounds", so that there is no uncertainty about it? Can we take Abulkalam, is that the easiest or which one do you want to take?

MR HURLEY: I believe, your Honour, that would be the easiest. Your Honour, these, I am instructed, have all been drafted to raise the same points as were raised by the counsel who drew the summary of argument. Your Honour's proposed orders or suggested orders raised the same grounds. So, the first one would be whether the decision failed to observe the procedures required of the Act.

HIS HONOUR: No, it would not. Unless you want to give up any rump of natural justice argument in this Court, if you want to give that up, fine, but that is not what I understood to be the position.

MR HURLEY: No, your Honour.

HIS HONOUR: I understood the position to be that there was to be an order nisi granted that would raise this general allegation of want of natural justice. The remitter would then be of that part of the matter which raised, if you like, failure to comply with the Act, leaving open to your clients this rump of an argument that there is some wider obligation in natural justice. Now, is that not the position?

MR HURLEY: Yes, your Honour.

HIS HONOUR: Then the grant of the order nisi would have to be, it seems to me at least, to be order nisi on the grounds numbered 5(a), (b) and (c) in the draft that was originally filed. The remitter would then be of the particular kind reflected in the draft orders. That seems to me to leave open to you an argument, which may win or may fail, I do not know yet, that although there was no want of observance of Act requirements, nevertheless, for other reasons extraneous to the Act, there was a want of natural justice and that unpicks the decision.

MR HURLEY: Yes, your Honour.

HIS HONOUR: Now, is there any reason not, for example, in Abulkalam, to work of the draft order nisi that was filed in this matter?

MR HURLEY: No, your Honour.

HIS HONOUR: Yes, very well.

The forms of the orders in these 28 matters, namely, matters M123, 129, 130, 131, 132, 133, 134, 135, 136, 137, 138, 139 and 140 of 1998, together with matters M5, 6, 9, 10, 11, 12, 13 of 1999, M15 and 16 of 1999, M21, 28, 52, 59, 71 and 82 of 1999, will be as follows:

(1) Grant order nisi on grounds [numbered, 5(a), (b) and (c) in matter M129 of 1998] or relevant equivalent grounds in draft order nisi filed herein.

(2) Remit to the Federal Court of Australia that part of the matter pending in this Court in which the applicant seeks a writ of certiorari, mandamus or prohibition or an injunction against an officer of the Commonwealth on the grounds that:

(a) the Refugee Review Tribunal failed to observe the procedures that were required by the Migration Act (Cth) ("the Act") or the regulations under the Act to be observed by the Tribunal in connection with the making of the decision challenged in these proceedings;

(b) the Tribunal did not have jurisdiction to make the decision it did;

(c) the Tribunal's decision was not authorised by the Act or the regulations under the Act;

(d) the Tribunal's decision involved an error of law, being an error involving an incorrect application of the applicable law or an incorrect application of the law to the facts as found by the person who made the decision, whether or not the error appears on the record of the decision.

(3) Further proceedings in the part of the matter that is remitted to the Federal Court of Australia to be as directed by that Court.

(4) Costs of the part of the matter that is remitted to the Federal Court of Australia (including the costs of the application to the date of this order) to be reserved to that Court.

(5) Otherwise adjourn application for order nisi to a date to be fixed on not less than three clear days notice in writing to the respondents.

(6) Certify for Counsel.

Now, two things: first, I have slightly changed the wording that I gave counsel. You will have seen the changes I have made. They are no longer in the form of interrogatories to the Federal Court as a statement of grounds. Second, in order that there should be some clarity about the forms of order that I have made, what I propose to do is to have typed in my chambers a draft of what I have proposed and made available to either counsel or those instructing counsel. We then know what the form of order is. Subject to those two things, do you have anything to say about the form of order I propose, Mr Hurley?

MR HURLEY: No, your Honour, I do not.

HIS HONOUR: Yes. Mr Tracey, do you have anything to say about the form of order?

MR TRACEY: No, thank you, your Honour, save as to one matter and that is that the test vehicle that your Honour has used for the formulation of those orders happens to be the case that our friend has proposed as the vehicle for the 417. Your Honour, before he leaves the Bar table, can I indicate the Minister is happy to have that case operate as the vehicle for 417 rather than the vehicle that the Minister had proposed. So that may require a slight variation to that order. But subject to that, your Honour, we apprehend no difficulty.

HIS HONOUR: Then the one that is to be taken as the test in 417 is which?

MR TRACEY: Is the one your Honour has just used, M129.

HIS HONOUR: Yes, Abulkalam.

MR TRACEY: Yes, your Honour.

HIS HONOUR: Then the orders that I have proposed will be made in the matters I earlier indicated save for Abulkalam. In Abulkalam, matter M129 of 1998, would it suffice if, in order 1, I simply granted an order nisi on the grounds of the draft order? It would be necessary to amend order 5, which is otherwise adjourning the application in Abulkalam, to substitute for that order an order numbered 5:

(5) Direct any affidavit to be relied on by respondents in relation to that part of the matter not remitted to the Federal Court of Australia to be filed and served on or before a date.

(6) Direct any affidavit in reply to be relied on by the prosecutor in relation to that part of the matter not remitted to the Federal Court of Australia to be filed and served on or before a date.

(7) Adjourn the matter for further directions by a single Justice on a date to be fixed on not less than three clear days notice in writing to the parties.

(8) Certify for counsel.

Now, Mr Tracey, firstly as to form; secondly as to date?

MR TRACEY: As to form, we are happy to adopt your Honour's proposal and, your Honour, as to dates, if we could have until the end of the month, 30 November.

HIS HONOUR: It is only seven days.

MR TRACEY: Yes. Probably a bit optimistic, your Honour.

HIS HONOUR: Very.

MR TRACEY: Could I just get some quick instructions? Your Honour, could we have three weeks, given that it is not likely to come back on this year.

HIS HONOUR: It will not. That would take you to 14 December, and if I said reply by, say, 31 January or 24 January 2000?

MR HURLEY: Yes, your Honour.

HIS HONOUR: It would give you some chance if I can give you a date on the 28th. I may not be able to.

MR TRACEY: Thank you, your Honour.

HIS HONOUR: Yes. Well, in Abulkalam, orders will be made with the variations I have indicated, otherwise orders are made in those forms in the other 27 matters.

MR HURLEY: Your Honour, the final one is matter M70 of 1999.

HIS HONOUR: Nagarajah.

MR HURLEY: Yes, your Honour. I would seek an order that that be taken out of the list with liberty to apply.

HIS HONOUR: Yes. And what do you say, Mr Tracey?

MR TRACEY: Your Honour, we have, since our friend raised the point, had cause to check the Federal Court's records and we are unable to find any proceeding where the primary or secondary applicant bore the name of Nagarajah. Now, it is possible that the lady or gentleman concerned might have been party to a class action or something of that kind but, your Honour, we have not been able, by looking at the department's data base, to find that name at all. But that said, your Honour, we really cannot oppose our friend's application, given that he has instructions that she or he has been to the Federal Court and we do not know whether the grounds overlap or whether it relates to the same issues or not. So, perhaps that is the appropriate course, your Honour, but could your Honour also make an order that would enable the matter to be brought back on as soon as the position has been determined?

HIS HONOUR: Yes. I will adjourn the application to a date to be fixed on not less than three days notice in writing to other parties. I will reserve the costs and certify.

MR TRACEY: Thank you, your Honour.

HIS HONOUR: Call the next matters

AT 10.35 AM THE MATTER WAS ADJOURNED