Singh, Ex parte - Re Min for Immigration & Ors S213/1999 [2000] HCATrans 45 (16 February 2000)

Last Updated: 14 May 2009

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S213 of 1999

In the matter of –

An application for Writs of Prohibition and Certiorari against THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS (on own behalf and as representative of the delegates of the Minister)

First Respondent

SECRETARY, DEPARTMENT OF IMMIGRATION AND MULTICULTURAL AFFAIRS (on own behalf and as representative of the delegates of the Minister)

Second Respondent

CHIEF EXECUTIVE OFFICER, AUSTRALIAN CUSTOMS SERVICE

Third Respondent

DIRECTOR, AUSTRALIAN PROTECTIVE SERVICE

Fourth Respondent

COMMISSIONER OF THE AUSTRALIAN FEDERAL POLICE

Fifth Respondent

PRINCIPAL MEMBER OF REFUGEE REVIEW TRIBUNAL (on own behalf and as representative of the Refugee Review Tribunal and the Members of the Refugee Review Tribunal)

Sixth Respondent

Ex parte –

KULDEEP SINGH (on own behalf and as representative on behalf of other persons as set out in the Schedule of Represented Persons)

Prosecutor/Applicant

KIRBY J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON WEDNESDAY, 16 FEBRUARY 2000, AT 10.18 AM

Copyright in the High Court of Australia

___________________

MR G.C. CORR: May it please the Court, I appear together with my learned friend, MR R.W. KILLALEA, for the prosecutor in this matter. (instructed by Coelho & Coelho)

MR S.J. GAGELER: If your Honour pleases, I appear with MR A. GOTTING for the first respondent. (instructed by the Australian Government Solicitor)

HIS HONOUR: I think I have a certificate relating to some of the other respondents. No, I do not have a certificate in relation to the other respondents, the nature of the application being as it is.

In your written submissions which you kindly sent in, Mr Gageler, you indicate that you seek leave to appear. Is that correct or not?

MR GAGELER: I do that, your Honour, because under Order 55 rule 1 of the Rules, this is strictly an ex parte application.

HIS HONOUR: I take it there is no objection to Mr Gageler - - -

MR CORR: No objection at all, your Honour.

HIS HONOUR: If leave is required under those Rules, you have that leave. Yes, Mr Corr.

MR CORR: Thank you, your Honour. I rely on the affidavit of James Coelho signed 1 December 1999. I believe that has been filed with the Court.

HIS HONOUR: I have the affidavit of James Coelho, solicitor, affirmed 7 February 2000. Have you read that affidavit, Mr Gageler? Do you have any objection to that affidavit or do you wish to ask any questions of Mr Coelho?

MR GAGELER: No, I do not.

HIS HONOUR: Very well. I read that affidavit. Is there any other evidentiary material?

MR CORR: Yes, your Honour. As well as that affidavit, there is also an extract from the United Nations High Commissioner for Refugees Handbook on Procedures and Criteria for Determining Refugee Status, printed in Geneva in September 1979, an extract basically of paragraph 28. That has not been in the Court documents. I would tender that.

HIS HONOUR: I do not seem to have that. Is that something you are handing up now?

MR CORR: Yes, I am tendering it now.

HIS HONOUR: Is there any objection to that, Mr Gageler?

MR GAGELER: No, your Honour, I am just checking it.

HIS HONOUR: Very well. That will be received and marked exhibit A

EXHIBIT: Exhibit A.....Extract from Handbook

HIS HONOUR: I notice that in the High Court file there is also an earlier affidavit of Mr Coelho which is affirmed 1 December 1999.

MR CORR: Yes, that is correct, your Honour.

HIS HONOUR: Am I to read that or not?

MR CORR: Yes, your Honour. I was just checking whether that is the principal affidavit in the matter. I believe the affidavit of February is in relation to the notices under section 78B of the Judiciary Act. Therefore most definitely we would like your Honour to read the affidavit of 1 December.

HIS HONOUR: Very well. Have you seen that affidavit, Mr Gageler?

MR GAGELER: Yes, your Honour.

HIS HONOUR: Is there any objection to my receiving and reading that affidavit and do you have any questions of Mr Coelho in relation to it?

MR GAGELER: No, your Honour.

HIS HONOUR: Very well. I have read those affidavits. Is there any other evidentiary material?

MR CORR: No, your Honour.

HIS HONOUR: Do you have any evidentiary material, Mr Gageler?

MR GAGELER: No, your Honour.

MR CORR: Your Honour, we have prepared some written submissions which I would hand up.

HIS HONOUR: Thank you. Hand them up. I will just take a moment to read those. I have already read Mr Gageler’s submissions. Yes, I have read that. Has the Full Court of the Federal Court passed upon this question or not?

MR CORR: No, it has not, your Honour.

HIS HONOUR: If the matter were remitted, would it be remitted to a Full Court? My understanding under the Judiciary Act is that we simply remit it to a court and then it is up to that court to make its own internal arrangements.

MR CORR: Yes, I think that is the situation, though the Federal Court could either determine it by a single judge, as has occurred in a number of matters which have been remitted from this Court, or it could determine that it was appropriate that it be constituted by the Full Court.

HIS HONOUR: It says:

subject to any directions of the High Court, further proceedings in the matter.....shall be as directed by the court to which it is remitted.

It is a question of whether it would be appropriate to direct that the matter be heard by the Full Court. I would feel very disinclined to do that.

MR CORR: Yes.

HIS HONOUR: Because it is really a matter internal to the Full Court of the Federal Court. Do you say that the decision of Justice Tamberlin has simply been followed by the decisions of the other judges of the Federal Court in Lu, Marshood and Li?

MR CORR: Yes.

HIS HONOUR: I did not get that impression when I read them but I may have read them too quickly. Certainly Justice Kiefel mentioned Justice Tamberlin’s opinion.

MR CORR: Yes. I believe that Justice Drummond did give some further discussion, but we would be submitting it is basically just the decision of Justice Tamberlin being reiterated in the following cases.

HIS HONOUR: Yes. I wonder if I might interrupt your submission. It may be efficient if I ask Mr Gageler a question and then come back to you. Mr Gageler, I have seen your written submissions which helped to focus the issue and I leave to one side the question of the alleged representative

nature of the proceedings. I also leave aside, at this stage, the point that is sought to be argued on section 427(6). But on the issue which is the most important one in the application, you have marshalled some pretty strong arguments why the argument would eventually fail, but given the arguable significance of the point to very large numbers of people who are potentially or, in these proceedings, actually affected by it, given that as was pointed out in Breckler and in many other cases there is no bright line determined by the cases in this Court for specifying what is and what is not the exercise of judicial power, given that the Court took the time in Breckler to deal with the decision of the Superannuation Tribunal which, in one sense, is not affecting as many people and in another sense is not affecting them in matters touching their liberty, and in a third sense may, at least arguably, not be so close to the kind of issues which are analogous to criminal or liberty affecting jurisdiction, why would one not at least require that the issue be determined at, hopefully, the level of the Full Court of the Federal Court and then the question of what happens to it can be decided by this Court efficiently and briefly?

MR GAGELER: The procedural course that your Honour would have in mind would be remitting the application for an order nisi to the Federal Court to be dealt with as it sees fit.

HIS HONOUR: But with a suggestion, or a hint, or at least an expression of hope that it might be dealt with by a Full Court. I think the Chief Justice of the Federal Court has the power, we saw it in one case, to require that a matter be argued before a Full Court.

MR GAGELER: Yes, that is correct.

HIS HONOUR: If that is so, then his Honour might, in the light of the fact that there have been three or four single instance decisions, and in the light of the remitter of the matter to that court, direct that the matter so remitted be argued before a Full Court. Then it can be determined and then, in the normal way, an application for special leave could be made and this Court would have the benefit of the opinion of a Full Court of the Federal Court of Australia.

MR GAGELER: Your Honour, I find it difficult to argue against that course. I was hoping, as your Honour saw from my submissions, to nip it in the bud.

HIS HONOUR: I tottered on the brink, but I thought this does affect a lot of people and it is an issue which is not clear cut in determination.

MR GAGELER: I accept that.

HIS HONOUR: And if one is looking for analogies, it does seem closer to the issue of liberty affecting orders than, say, superannuation – orders of the Superannuation Tribunal.

MR GAGELER: Your Honour, naturally I would seek to persuade your Honour otherwise, if I were to - - -

HIS HONOUR: At the proper time, Mr Gageler, at the proper time.

MR GAGELER: Yes. A better analogy is a licence, your Honour; a licence to do something that is otherwise prohibited.

HIS HONOUR: But is this present applicant in immigration detention?

MR GAGELER: No.

HIS HONOUR: What is the practice there? I assumed that in most of these cases the applicants are not in immigration detention but I was informed yesterday by one of my colleagues that it is often the case, that they are in immigration detention. Is there any – I suppose it depends on the particular applicant and whether or not there is seen to be any risk that the applicant might disappear and not be readily retrievable.

MR GAGELER: It depends on the particular circumstances, yes. There are many different circumstances. In some cases the applicant is in immigration detention at the time of applying for the visa and remains so after the visa is refused. In this case the applicant was not in immigration detention at the time of applying for the visa and remains in the community at the moment.

HIS HONOUR: I see. As he is within the community, it would seem that he tenders to the Court an issue which ought to be determined by somebody in an authoritative way.

MR GAGELER: And has been on four occasions.

HIS HONOUR: I realise you say that, but it does seem that one judge of the Federal Court has decided this and the other judges have been greatly, and naturally, influenced by what Justice Tamberlin decided and - - -

MR GAGELER: Justice Drummond in Li gave independent consideration to the point.

HIS HONOUR: Yes. I just think it affects so many people that it ought to be authoritatively determined at the level of a Full Court, either this Court or the Federal Court. That being the case, it would seen an appropriate

matter for remitter to the Federal Court, though I did take the force of your submissions as to why it should, as you put it, be nipped in the bud. Thank you very much. I just come back to Mr Corr. Mr Corr, do you accept that the argument on section 427(6) is premised on the argument that the Tribunal exercises judicial power?

MR CORR: Yes, I believe that that is the case, your Honour.

HIS HONOUR: Therefore that would go with whatever happens to the judicial power point.

MR CORR: Yes. The whole – it basically is the Tribunal exercising judicial power.

HIS HONOUR: Why would it not be sufficient that I simply refer the application of Mr Singh and pay no regard to the purported representative proceedings because of the fact that there may be suggestions that they should not be adversely affected by a decision but, in the event that the decision of the Federal Court or, on appeal, of this Court were later to be favourable to Mr Singh, then they and everybody else picks up the benefit of it. Why do you need the other persons named?

MR CORR: Part of the procedure, your Honour, in relation to these applications is generally if there is an application before a court on foot, a person who has been refused a visa can apply for a bridging visa. Otherwise they can be immediately detained and removed from Australia. In the event that your Honour said it was purely to be Mr Singh, and his was the only matter on foot, what is likely to occur is the other persons, in order to be able to apply for a bridging visa, would commence further actions. So in order to ensure that there were not a multiplicity of actions coming before either this Court or the Federal Court, it is appropriate that they should be able to be part of a representative action. Otherwise, in order to protect their own position, those persons would commence their own actions.

HIS HONOUR: Do you tell me that your solicitor holds authority from each of those persons who are named to represent them in these proceedings?

MR CORR: Yes, that is correct, your Honour.

HIS HONOUR: And that they have been informed and realise that in the event that the proceedings go against Mr Singh, that they will be the subject of a judicial determination finally disposing of their rights?

MR CORR: Yes, they have been informed of that, your Honour. I understand that there are also other persons who have been in communication with my instructing solicitors in relation to this matter and, again, those persons, if - your Honour may see that within the orders which we are seeking there was the ability to add further persons to that list. The argument which I presented to you previously in relation to the removal of the multiplicity of actions applies in that particular case. Whether it is appropriate for your Honour, in the case of remitting it to the Federal Court, to make any orders in relation to the addition of further persons, or whether your Honour should leave it to the Federal Court to determine under their own rules as to whether further persons can be added to the roll, I would submit that it is appropriate for your Honour to give such directions. But it may be that the Federal Court Rules should prevail.

HIS HONOUR: Once the matter is remitted, it is entirely within another court and I imagine that, under the Judiciary Act, directions could be given but I could not imagine that one would make such directions because, once a matter is remitted, it should be dealt with in that court according to its rules.

MR CORR: Yes, your Honour.

HIS HONOUR: Very well. Mr Gageler, in the light of that indication to the Court that Mr Corr’s solicitor has instructions from each of the persons named in the schedule, it does seem to be appropriate to retain them within the proceedings and they take the benefit as they otherwise would, but they also take the burden of any final determination of the matter in these proceedings adverse to their interests.

MR GAGELER: Your Honour, that is such a serious question that, in our submission, your Honour should not proceed without evidence on the point. We have not, at this stage, been able to track down, through our own records, the circumstances of the 120 or so individuals involved. But I am instructed by my solicitor that to his knowledge at least one of them has already brought proceedings in the Federal Court and has had those proceedings dismissed on the merits.

HIS HONOUR: Which one is that one, do you know?

MR GAGELER: The last individual in list 2, No 107, Upkar Singh. I do not have any evidence of that, your Honour, but I am so instructed.

HIS HONOUR: That is the 107th person named?

MR GAGELER: Yes. Now, that does suggest, your Honour, that there may be some difficulties in simply accepting a bland statement from the Bar table as to the circumstances of so many individuals whose rights may be very severely affected by these proceedings.

HIS HONOUR: Is it possible for the 106 persons to apply to the Federal Court to be joined as parties – applicant in that court if the matter is remitted to it?

MR GAGELER: Your Honour, there would be three courses available. There would be an opportunity to apply to be joined as parties. There is also a representative procedure under the Federal Court Rules which I think, from memory, is Order 16 rule 3 of the Federal Court Rules and, apart from that, there is Part 4A of the Federal Court Act which allows for the bringing of representative proceedings. All of those courses would be available to this applicant and those persons in the Federal Court and, indeed, your Honour, this proceeding currently before your Honour could have been commenced in the original jurisdiction of the Federal Court. There is no reason why it needed to commence as an order nisi application before your Honour.

So the course that I would urge upon your Honour would be to take the course of remitting Mr Singh’s application but leaving the 120 or so other persons out of account at this stage.

HIS HONOUR: In the matter of costs, what order do you suggest ought to be made; that the costs in this Court should abide the outcome of the proceedings in the Federal Court? Is there any other order that should be made?

MR GAGELER: No.

HIS HONOUR: I would not be inclined to remit to the Federal Court the disposition of the costs in this Court. I think this Court has its own responsibility to make its orders as to costs but, in a sense, simply indicating that they will abide the outcome and one would expect, in those circumstances, that the parties could agree or, in the event that they cannot agree, then this Court would re-list that aspect to be disposed of doubtless in the light of the Full Court or the Federal Court’s decision.

MR GAGELER: By abide the outcome, I thought your Honour meant follow the event. An order that the costs of these proceedings follow the event in the Federal Court would be appropriate, in my submission.

HIS HONOUR: Yes. The fact that one of the parties in the schedule is said to have discontinued proceedings makes it, at least arguably, sensible to leave it to those applicants to join in the proceedings in the Federal Court if I remit Mr Singh’s matter to the Federal Court.

MR CORR: Yes. I think my friend did not actually say he had discontinued but rather there had been a finding against him, the merits, in the Federal Court. But I hear what your Honour is saying about that matter but I still adhere to my application, that it be all the parties to be in the court below.

HIS HONOUR: Very well. Do you have anything to say on the question of the costs in this Court?

MR CORR: I think what your Honour has suggested is appropriate, that the costs set in this Court abide the decision of the court below. My learned junior has raised a point, your Honour, in that when the matter was brought before this Court it was by Mr Singh, together with the 107 other persons, and then another 28 who have since sought to be joined. If your Honour’s decision is that it follow the decision in the court below, the question is whether the costs in this Court, if they follow against the applicant, to be against Mr Singh alone or against all of the persons - - -

HIS HONOUR: I think you would have to distinguish between that which is before this Court today which, on the face of the record, is Mr Singh purporting to be bringing the proceedings on his own behalf and on behalf of other persons, and that which would be remitted to the Federal Court which would simply be Mr Singh’s application. So that so far as the proceedings in this Court are concerned, on the face of the record the applicant is Mr Singh, but he claims to be acting on behalf of, and as representative of, other persons. Therefore that could be, in the event of a dispute, doubtless determined in this Court by it.

MR CORR: Yes, I think possibly myself and my friends on the other side would be able to work out some way of arranging it so that it did not have to come back before this Court.

HIS HONOUR: I would hope so, but in the event that you cannot, the position is distinguishable. The case is in this Court with the other persons named in a schedule, but in the Federal Court it would only be Mr Singh, at least until other persons were joined by order of that court.

MR CORR: Yes, your Honour.

HIS HONOUR: Mr Gageler, is there anything else that you wish to say?

MR GAGELER: Your Honour, I perhaps should correct a possible misapprehension that might arise from an earlier submission I made as to what the Federal Court could do. I had overlooked section 478 of the Migration Act which says that an application under section 476 of that Act

in the original jurisdiction of the Federal Court must be lodged within 28 days of the decision sought to be reviewed. So when I put to your Honour that this proceedings could have been commenced in the Federal Court under section 476, that is only in relation to those applicants who are not outside the 28-day period.

HIS HONOUR: I follow. But you do not raise that as, in a sense, a time bar in respect of any matter that is remitted pursuant to the Judiciary Act because there, it is not an application under that section but a matter remitted.

MR GAGELER: That is correct.

HIS HONOUR: Very well, thank you.

Application for order nisi to raise a constitutional point

Before the Court is an application for the issue of an order nisi directed to the Minister for Immigration and Multicultural Affairs (“the Minister”) and other officeholders of the Commonwealth. The applicant is Mr Kuldeep Singh. The application asks for the issue of the constitutional writ of prohibition and a writ of certiorari to raise the issue of whether the Minister or his delegate or the Refugee Review Tribunal (“the Tribunal”) have, in refusing the request by Mr Singh for a protection visa, purported, contrary to constitutional authority, to exercise the judicial power of the Commonwealth. A subsidiary question arises as to the validity of sub-section 427(6) of the Migration Act 1958 (Cth). It is suggested that in so far as that subsection excludes the facility of legal representation before the Tribunal, it too is invalid under the Constitution. However, it is common ground that this second objection derives from the first. Its fate will therefore depend upon the outcome of the principal question which the applicant wishes to argue.

Submissions of the Minister

Although the proceedings such as this may occur before the Court ex parte, the Minister has appeared today by leave. His counsel has provided submissions which are of assistance to the Court. The other respondents named did not appear. The Minister suggested that the applicant had failed to establish an arguable case for the grant of the relief sought. By the authority of this Court it is necessary, before an order nisi for a writ of prohibition or certiorari is granted, that the applicant should show an arguable case demonstrating that the officer of the Commonwealth to whom the writ is directed has, relevantly, gone beyond jurisdiction. See Australian Nursing Federation, Ex parte State of Victoria [1993] HCA 8; (1993) 112 ALR 177 at 183 and Re Brennan, Ex parte Muldowney [1993] HCA 53; (1993) 116 ALR 619 at 624. According to the Minister, the applicant failed to meet that threshold.

In the course of argument I was referred to a series of decisions in the Federal Court of Australia. Those decisions have been given by judges at first instance rejecting contentions put forward in that Court analogous to those which the applicant now wishes to advance in this Court. See N44 v Minister Immigration and Multicultural Affairs (1999) FCA 1127 at [16] and [21]; Marshood v Minister for Immigration and Multicultural Affairs (1999) FCA 1415 at [25]; Li v Minister for Immigration and Multicultural Affairs (2000) FCA 19 at [3] to [16]; Lu v Minister for Immigration and Multicultural Affairs (2000) FCA 40 at [1]. In those decisions reference has been made to the authority of this Court, including to the recent decision of the Court concerning the scope and extent of the judicial power of the Commonwealth: see Attorney-General (Cth) v Breckler (1999) 73 ALJR 981.

Refusal of dismissal of proceedings

Despite the force of the submissions on behalf of the Minister, three considerations restrain me from taking the course which he proposed, namely the dismissal of the application. First, the matter has not, as I was informed, yet been passed upon by the Full Court of the Federal Court of Australia or by this Court. Secondly (as is in part indicated by a schedule of persons whom Mr Singh purports to represent in this Court) the issue which he wishes to raise affects, actually and potentially, a very large number of persons. It is therefore one which, in my view, warrants consideration either by this Court or by the Federal Court appropriately constituted. Thirdly, the cases in this Court indicate that there is no bright line for the determination of the exercise of the judicial power. It is enough for me now to say that the analogies which are mounted for the applicant are such that the argument which he wishes to advance appears one which should be further considered and not terminated at this stage.

Remitter to and constitution of the Federal Court

Under the Judiciary Act 1903 (Cth), section 44, this Court or a Justice of the Court has the power to remit proceedings:

to any federal court, court of a State or court of a Territory that has jurisdiction with respect to the subject-matter and the parties -

It is common ground that the Federal Court of Australia has that jurisdiction. Under the section, this Court may make directions affecting the further proceedings in the court to which the matter is remitted. I have given consideration as to whether I should make directions that the proceedings which I intend to remit to the Federal Court should be heard by a Full Court of that Court. The parties agree that the Chief Justice of the Federal Court has the power under the Federal Court of Australia Act 1976 (Cth), s 15(1) to direct that the proceedings by so heard. Given the terms of the Federal Court of Australia Act and the apparent purposes of the power of direction in the Judiciary Act, I am not convinced that I have the power to require that the matter be heard by a Full Court of the Federal Court. In any case, I believe that it would be more appropriate that that question be determined by the repository of the power in the ordinary circumstances, namely the Chief Justice of that Court. I consider that it can be left to the Chief Justice of the Federal Court, and to the internal processes of the Federal Court, to make such provision as is appropriate for the consideration of Mr Singh's application when the matter is remitted to that Court.

At least to some extent, it appears that the series of decisions at first instance in the Federal Court have been affected by the first decision made in that court by a single judge, namely that of Justice Tamberlin in N44. So much would be expected. It would be helpful to this Court to have the considered opinion of a Full Court of the Federal Court before this Court comes to the issues which Mr Singh wishes to contend, in the event that it is ultimately considered appropriate and necessary that this Court should visit those contentions.

Representative proceedings

An issue arises as to whether I should remit to the Federal Court the proceedings in the name of Mr Singh alone or remit to that court the proceedings as commenced by Mr Singh purporting to be the representative of a number of parties named in a schedule which is before me. Counsel for the Minister contended at first that, having regard to the potential of orders made in the Federal Court to affect adversely the rights of the persons whom Mr Singh purports to represent, this Court or the Federal Court should have evidence before it of the consent of such parties to be represented by Mr Singh before they were, in effect, made parties to his proceeding. Subsequently, it was indicated that the Minister was satisfied that Mr Singh has the actual authority of all of the persons named in the Schedule whom he purports to represent. See Order 16 rule 12 HCR. It is therefore appropriate to refer the entire matter to the Federal Court.

Orders

Accordingly, the orders which I make are:

1. Remit to the Federal Court of Australia the whole of the application made by Mr Kuldeep Singh to this Court for hearing and determination by that court.

2. Order that the costs of the proceedings before this Court should abide and follow the outcome of the proceedings in the Federal Court so remitted.

3. Certify for the attendance of counsel before this Court in Chambers.

AT 11.00 AM THE MATTER WAS CONCLUDED

UPON RESUMING AT 11.48 AM:

MR GAGELER: Your Honour, can I address a problem entirely of my own making and suggest a solution which would be by consent. The problem is that I had put to your Honour that it was common ground that if Mr Singh's matter were remitted to the Federal Court, then in the Federal Court it would be possible either to add further persons as applicants or to have the proceedings continue as representative proceedings on behalf of the other persons named in the schedules to the current application. The problem with that, on reflection, is that what your Honour is remitting is a matter. The matter is only between Mr Singh and the other respondents and that if someone else comes along with the same sort of claim, it is not the same matter.

The solution is that in discussions between the solicitors for the Minister and the applicant Mr Singh, we have been able to be satisfied that there is actual authority on the part of Mr Singh to commence these proceedings in the High Court, relying upon Order 16 rule 12, the representative proceeding provision. So that - - -

HIS HONOUR: Does that include the 107th named respondent?

MR GAGELER: Yes. There is authority from him to commence the proceedings. We may have a good defence to the proceedings but that is something that can be dealt with in the Federal Court. So that if your Honour were to remit the whole of the application to the Federal Court the question of any particular defences and the overall question as to whether or not the proceedings should continue as representative proceedings can be dealt with in that court. So what I would ask your Honour to do would be to vary order 1 of the orders your Honour has only just made so as to remit to the Federal Court the whole of the application.

HIS HONOUR: What you said to me about it being the one matter does not fall into the error that was demonstrated by the majority of the Court in Abebe, does it; the majority, including myself?

MR GAGELER: No.

HIS HONOUR: So that you accept that the matter is the entirety of the application by Mr Singh, including so much of it as is on behalf of the other named persons in the schedule?

MR GAGELER: If your Honour were to vary the order so as to remit the whole of the application, then what your Honour would be remitting would be the matter as so defined, yes. Matter or matters, may I say.

HIS HONOUR: Very well. Do you wish to be heard on that?

MR CORR: No, your Honour.

HIS HONOUR: Thank you, Mr Corr.

HIS HONOUR: For the reasons which have been outlined, I vary order No 1 to remit the whole of the application to the Federal Court of Australia.

Thank you very much for your usual help to the Court, Mr Gageler. Thank you, both of you.

AT 11.51 AM THE MATTER WAS CONCLUDED