Gomez-Rios, Ex parte - Re Min for Immig & Ors S114/2000 [2000] HCATrans 473 (16 August 2000)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S114 of 2000

In the matter of -

An application for Writs of Mandamus, Prohibition and Certiorari against THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS OF THE COMMONWEALTH OF AUSTRALIA

First Respondent

and

MARGARET O'BRIEN, sitting as the REFUGEE REVIEW TRIBUNAL

Second Respondent

PETER NYGH, in the capacity as Principal Member of the REFUGEE REVIEW TRIBUNAL

Third Respondent

Ex parte -

ALFREDO GOMEZ-RIOS

Applicant/Prosecutor

GUMMOW J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON WEDNESDAY, 16 AUGUST 2000, AT 9.36 AM

Copyright in the High Court of Australia

___________________

MR P. GWOZDECKY: Your Honour, I appear for the applicant. (instructed by Mr Gomez-Rios)

MR S.J. GAGELER: Your Honour, I seek leave to appear for the first respondent. (instructed by the Australian Government Solicitor)

I understand that the second and third respondents have submitted to the jurisdiction of the Court.

HIS HONOUR: Yes. The first respondent being the Minister for Immigration and Multicultural Affairs.

MR GAGELER: That is right.

HIS HONOUR: Yes. Is that opposed?

MR GWOZDECKY: No.

HIS HONOUR: Yes, Mr Gageler, you have that leave.

The first question, Mr Gwozdecky, that arises is what is happening with the notice of discontinuance of the application for leave from Justice Kirby's decision?

MR GWOZDECKY: Your Honour, that is attempting to be filed. Apparently, it is in the wrong form and the applicant is seeking a word processor to put that in the correct form, but that has been signed and it is intended to be filed.

HIS HONOUR: All right. Well, that had better be done this morning. Mr Gageler, what do you say about the last prayer? Have you the draft order nisi?

MR GAGELER: Yes, I have.

HIS HONOUR: What do you say about the last prayer there for remission to the Federal Court?

MR GAGELER: Your Honour, I say that while that is the course that would be available to the Court, given that the grounds sought to be relied upon are all grounds that could be agitated in the Federal Court - - -

HIS HONOUR: That seems to be so.

MR GAGELER: There is a broader question of process involved in this case and your Honour will see that I wish to agitate a discretionary ground of refusal which would seem appropriate to be agitated here.

HIS HONOUR: I think that is probably right, yes. I think your client has appeared. You had better see to him. Yes, the notice of discontinuance seems to be in order. So, that has been taken as filed. That is the notice of discontinuance of application in S88 of 2000.

Now, in your written submissions at page 3 - it is Port of Melbourne Authority v Anshun, is it not? There is a typo there.

MR GAGELER: I typed it myself, your Honour, so it is quite likely that there is a typo. Yes, two typos in the one word.

HIS HONOUR: Where is the other one?

MR GAGELER: Well, it should be Anshun and it has come out as "Austum".

HIS HONOUR: Yes, that is right. I take it your evidence is complete, Mr Gwozdecky? Your evidence is complete? You rely on that affidavit?

MR GWOZDECKY: Yes, your Honour.

HIS HONOUR: Now, have you a copy of Mr Gageler's written submissions?

MR GWOZDECKY: Yes, your Honour, I received them this morning.

HIS HONOUR: I think, in view of the discretionary factors that have been raised, it might be invidious to call on the Federal Court to exercise them when what is involved is an earlier proceeding in this Court, so, I think, probably, the matter shall have to say here. Have you your diary, Mr Gageler? Mr Gwozdecky? If not, can you get it?

MR GAGELER: Yes, easily, your Honour. I do not have it with me but I can get it within five minutes.

HIS HONOUR: All right. Well, I will tell you what I have in mind. I think you should have the opportunity to put on some written submissions in reply to this which, at the moment, seems to raise some significant matters for you, Mr Gwozdecky, which will require some thought, and the matter then could be dealt with by relatively short oral submissions on the written submissions. I would do that in Canberra, fairly soon. I would have in mind 2.15 on Monday, 4 September or - I am not sitting at the moment on the morning of Thursday, 7 September - at 9.30 am on Thursday, 7 September. In the meantime if you put on your written submissions, Mr Gwozdecky, by - how long would you need? Seven days? Ten days?

MR GWOZDECKY: Seven days would be fine.

HIS HONOUR: We will say, Friday, 25 August. But I will take a short adjournment for you to locate your diary.

AT 9.43 AM SHORT ADJOURNMENT

UPON RESUMING AT 9.54 AM:

HIS HONOUR: Now, is there some problem with Monday, 28 August?

MR GWOZDECKY: Yes, your Honour.

HIS HONOUR: Well, you do not get to appear in the highest Court in the country very often, Mr Gwozdecky.

MR GWOZDECKY: No, that is true, your Honour. Your Honour, perhaps, if that is - I will make other arrangements with that date. I just thought there may be - - -

HIS HONOUR: Now, what is the problem with Monday, the 4th?

MR GAGELER: I have an existing commitment in the Federal Court but, again, if necessary, that - - -

HIS HONOUR: But in Sydney or Canberra?

MR GAGELER: That is in Sydney, your Honour.

HIS HONOUR: Well, that is impossible. Thursday, the 7th, what is the problem with that?

MR GAGELER: That is Mr Gwozdecky's problem.

HIS HONOUR: Thursday, 7 September.

MR GWOZDECKY: Your Honour, I have a hearing in the Land and Environment Court on the 7th and 8th.

HIS HONOUR: On the 7th and 8th?

MR GWOZDECKY: Yes.

HIS HONOUR: It looks as if it will have to be Monday, the 28th, I am afraid.

MR GWOZDECKY: May it please the Court.

HIS HONOUR: At 2.15.

MR GAGELER: Is that in Canberra, your Honour?

HIS HONOUR: Yes. It is not a good idea for the Bar to nourish the notion that the High Court sits regularly in Sydney to hear any substantive matters that are not extremely urgent. The seat of the Court is in Canberra.

Now, does any question arise of the need to preserve, by order, the position of the applicant in this country pending that hearing date?

MR GAGELER: No, your Honour.

HIS HONOUR: Very well. I guess you will probably have the opportunity to furnish submissions in reply.

I have said:

Direct the applicant to file and serve its written submissions on or before 23 August.

That is seven days.

Any written submissions in reply be filed and served on or before 25 August.

Standover the application for hearing before me at Canberra at 2.15 pm on 28 August.

Costs of today be costs of the application. I certify for counsel.

MR GAGELER: If it please the Court.

HIS HONOUR: Is there anything else? I will now adjourn.

AT 9.58 AM THE MATTER WAS ADJOURNED

UNTIL MONDAY, 28 AUGUST 2000