Aala, Ex parte - Re Refugee Review Tribunal & Anor S185/1999 [1999] HCATrans 662 (20 December 1999)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S185 of 1999

In the matter of -

An application for Writs of Mandamus, Prohibition and Certiorari against the REFUGEE REVIEW TRIBUNAL and the MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondents

Ex parte -

MANSOUR AALA

Prosecutor

McHUGH J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON MONDAY, 20 DECEMBER 1999, AT 10.01 AM

Copyright in the High Court of Australia

MR P.E. KING: If your Honour pleases, I appear with MS K. HAWES, for the prosecutor. (instructed by Mr M. Aala)

MR T. REILLY: Your Honour, I seek leave to appear for the second respondent. (instructed by the Australian Government Solicitor)

MR KING: Your Honour, this is the first return in relation to some orders that were filed on 21 October. I have prepared some short minutes of orders, a copy of which I have provided to my friend, which may be of some assistance in advancing the matter, depending on what your Honour wishes to do with the matter today. The first order, your Honour, is obviously a reflection of the provisions of Order 55 dealing with matters of this type, in particular Order 55 rule 2. The second provision makes provision for the respondent to file any material if it wishes to do so. I have spoken to Mr Reilly about that. At that time, he was not sure of his position on that point.

The third relates to an issue, extension of time, in circumstances which I will explain in a moment, in relation only to the issue of certiorari but, for more abundant caution, on the issue of mandamus, the problem being this, your Honour, that the decision of the officer, Ms Berkeley, was handed down several months before the decision of this Court in Eshetu and that decision was handed down after the Full Court's decision was reserved, and the Full Court itself commented on the fact that it could not pass judgment on the issues of natural justice that had been raised. The only place where we could do that was this Court. It is in those circumstances that we seek the extension of time.

The fourth matter is simply a matter of typographical error in relation to the form of the orders. It is the second line of paragraph 2 of the orders that were filed, your Honour. The phrase is "directed to the first respondents". That should simply read "to the respondents" because we seek an order of prohibition against - - -

McHUGH J: I am sorry, I am not sure I am looking at the right document.

MR KING: It is the orders filed in S185 of 1999 on 21 October 1999, your Honour. The front page, paragraph 1, numbered 1.

McHUGH J: You might have an advantage on me. The document I have has got no date on it. Yes, it has the Court stamp on it. Now, you want order - - -

MR KING: Paragraph 1, line 2, delete the word "first".

McHUGH J: I see, yes.

MR KING: Then the proposed order 5 is again a matter of discretion for your Honour, however, disposed your Honour is to deal with the matter.

McHUGH J: Why do you want the matter to proceed by way of notice of motion?

MR KING: Simply to ensure that it is appropriately formalised. We are very content to have the matter proceed as it is presently constituted, your Honour. The rules permit that course.

McHUGH J: Yes, I know, but - - -

MR KING: The last experience I had with one of these matters, your Honour, Justice Gummow, in fact, referred the matter to hearing to a Full Court and ordered us to file a notice of motion. That was the matter of Jarman Ex parte Cook.

McHUGH J: Yes, I appreciate that. I do not think there is anything to refer to the Full Court on this matter.

MR KING: No, I am not suggesting there is, your Honour.

McHUGH J: It seems to me it is the sort of case that should be dealt with by way of an order absolute by a judge at first instance and if the administration of justice requires it in these particular cases. Yes, thank you. What do you say, Mr Reilly?

MR REILLY: Your Honour, we oppose the orders that are sought. A difficulty I have is that because these matters are ex parte and I need leave, we have not got any evidence at present, but if your Honour was minded to stand the matter down for a few hours, we could get the Full Court appeal book and just use that, because that has really got all we need in addition to the Full Court's decision in terms of documents, if your Honour was willing to hear argument today as to why the order nisi should not be granted. Alternatively, if your Honour is prepared to hear me now, shortly, on that.

McHUGH J: At this particular stage, I am certainly not prepared to hear you. The matter is in for directions. Mr King, what do you say about the respondents' submissions?

MR KING: We are in your Honour's hands. We are happy to have it argued right now, your Honour. However, I have followed what, in my respectful submission, is the appropriate procedural course. It is not quite as easy, with respect to my friend, as he may imagine, to deal with these sort of matters and I have made provision in the short minutes in accordance with Order 55 for him to put on any material he wishes. If he is going to rely on some material, I would like to know now what it is and get some time to reflect on it.

He has had this material since 21 October and I am a bit surprised, bearing in mind the terms of Order 55, that if he wants to have it heard today he wants to rely on some further evidence, but I am prepared to cope with that. I should say this though, your Honour, I have an urgent interlocutory matter fixed before Justice Wilcox at 2.15 pm and I would need to make other arrangements about that matter.

McHUGH J: Yes, well, Mr King, I certainly will not push you on today. But what about tomorrow morning?

MR KING: Yes, certainly, your Honour. I think Mr Mansour Aala, who has had the pleasure of custody at Villawood for the last three years is in Court and he just nodded instructions to that effect. He is content to have it dealt with tomorrow.

McHUGH J: I notice you grimace, Mr Reilly. What is your position?

MR REILLY: Your Honour, I am in court tomorrow morning but I anticipate it will not take very long. Certainly, I would be free in the afternoon, I think I can say, without any difficulty.

McHUGH J: What about Wednesday for counsel?

MR REILLY: I am free on Wednesday, your Honour.

MR KING: Well, I must say, your Honour, I would rather it be dealt with tomorrow if it is going to be adjourned to a hearing date this year.

McHUGH J: Right. What time do you expect to be free tomorrow, Mr Reilly?

MR REILLY: Present indications, 10.30 am, your Honour.

McHUGH J: Right then, we will list this matter for 10.30 am tomorrow and the parties should be ready to proceed. I would appreciate written submissions to be filed in this matter. Even if they are in fairly rough form, I would like them filed by 5.00 pm this afternoon.

MR REILLY: Your Honour, as I said, we anticipate if we can just put in the appeal book from the Full Court and use that as a basis for submissions if that is appropriate.

McHUGH J: Yes, well - - -

MR REILLY: It has all the documents, of course, except for the Full Court decision.

McHUGH J: Yes. Mr King, are you happy to proceed on that basis?

MR KING: I am, however, I appear pro bono in this matter with Ms Hawes, your Honour, and I would appreciate a copy of the document which he refers to - - -

McHUGH J: Yes. Can a copy be made available to Mr King during the course of the day?

MR REILLY: I am sure we can do that, your Honour.

McHUGH J: Yes, and, naturally, a copy to this Court as well.

MR REILLY: Yes. Your Honour, Mr King was in the Full Court appeal, so he is not unaware of the contents of the appeal book.

McHUGH J: Yes.

MR KING: Your Honour, I presume that direction, or that indication that your Honour has made regarding the service of the submissions includes any material upon which the respondent is proposed to rely as well.

McHUGH J: Yes, I understand from Mr Reilly he does not intend to rely on anything other than what is in the Full Court. You have an affidavit on.

MR KING: Yes.

McHUGH J: I take it no cross-examination is required on that affidavit, Mr Reilly.

MR REILLY: Your Honour, there are some matters which we do not agree with in the affidavit.

McHUGH J: Well, there are assertive matters.

MR REILLY: I may be able to deal with them simply by reference to appropriate documents. I hope to avoid cross-examination.

McHUGH J: Well, I direct that this matter be adjourned until 10.30 am tomorrow and will then proceed to hearing.

Mr King and Mr Reilly, it is important that you bear in mind that, prima facie, I take the view that errors of law are not necessarily jurisdictional errors and that I would want the assistance of counsel on that aspect of the case. At the moment, and this is an issue that will be raised in all the cases today, it does not necessarily follow that an error of law by the Tribunal constitutes jurisdictional error for the purpose of section 75(v) of the Constitution.

MR KING: Thank you, your Honour, that is a very helpful indication, if I may say so. Your Honour, Mr Reilly has informed me that the affidavit that was served upon him did not include the annexures which were threefold. I had thought it included at least one which was the decision of the officer, Ms Berkeley.

McHUGH J: In addition, the copy filed in the Court does not contain them as well.

MR KING: Right. The reason I raise it, your Honour, is I would just seek leave to hand to your Honour now that material, or would it be preferable if I handed it to your Honour with the submissions?

McHUGH J: No, I would much prefer to see it in advance.

MR KING: Then, your Honour, there is the four statements referred to in annexure B and I will be taking your Honour to those statements in due course. There is the transcript of the hearing before the officer of 20 March 1998, not all of the pages, but the relevant pages. I have given copies of that material to Mr Reilly, your Honour.

McHUGH J: Yes. No objection to that, Mr Reilly?

MR REILLY: No, your Honour.

McHUGH J: Very well. I will adjourn this matter until 10.30 am tomorrow.

AT 10.13 AM THE MATTER WAS ADJOURNED

UNTIL TUESDAY, 21 DECEMBER 1999