Chanda, Ex parte - Re Min for Immigrtion & Multicultural Affairs & Ors S218/1999 [2000] HCATrans 49 (23 February 2000)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S218 of 1999

In the matter of -

An application for Writs of Certiorari, Prohibition and Mandamus and an Injunction against PHILIP RUDDOCK in his capacity as THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS OF THE COMMONWEALTH OF AUSTRALIA

First Respondent

DINOO KELLAGHAN in her capacity as a Member of the MIGRATION REVIEW TRIBUNAL

Second Respondent

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

Ex parte -

SARAJIT CHANDA

Prosecutor/Applicant

GLEESON CJ

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON WEDNESDAY, 23 FEBRUARY 2000, AT 2.12 PM

(Continued from 22/2/00)

Copyright in the High Court of Australia

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MR M.A. ROBINSON: If your Honour pleases, I appear again for the prosecutor.

MR A. ROBERTSON, SC: May it please your Honour, I appear with MR S.B. LLOYD, for the respondents.

HIS HONOUR: What stage have we reached now?

MR ROBERTSON: One of agreement so far as the parties are concerned, your Honour. There are some consent orders which my instructing solicitor has not yet signed but only because she is not here yet but perhaps I could hand your Honour a copy so that your Honour can see what is proposed. They should be familiar to your Honour from yesterday. The only material change is in 1(c) which has the paragraphs numbered 6 and 6a which your Honour will recall Mr Robinson redrafted. Number 3 is, of course, a redraft as well which I think your Honour assisted in redrafting, and the amended draft order nisi, if I can hand a copy of that to your Honour as well, what is proposed is the remitter to the Federal Court of therefore the bias ground, the statutory "no evidence" ground and the error of law grounds as redrafted. So, the numbers being 2, 3, 6 and 6a.

HIS HONOUR: When the matter gets to the Federal Court, I presume that court will deal with it as an application for prohibition et cetera under section 75(v) of the Constitution.

MR ROBERTSON: I think it would have to deal with it as an application within Part 8 of the - perhaps it would not matter because the two - the grounds would be coincident to that extent.

HIS HONOUR: No, quite. The problem that was being raised yesterday was that there was a discrepancy between what I might call the "no evidence" ground for prerogative relief, if I can use that expression - constitutional relief they call it now - and ......under the Act.

MR ROBERTSON: Now, that order 3 has been reframed so that it follows the language of Part 8, what I think I was putting to your Honour would follow and, in a sense, it must follow because the provisions of section 485(3) of the Migration Act which says that even on a remitter - I am paraphrasing - the Federal Court only has the Part 8 powers.

HIS HONOUR: What is that section again?

MR ROBERTSON: Section 485(3), your Honour, and of course it is that section, that cluster of subsections that, in a sense, means that applicants and prosecutors come to this Court in the way that they do.

HIS HONOUR: If somebody applied to this Court for an order for prohibition against an officer of the Commonwealth on the ground that he parted his hair on the wrong side, would there be any reason why that could not be remitted to the Federal Court? The fate that it would suffer once it got there might be pretty obvious and there might be a good discretionary reason not to do it.

MR ROBERTSON: Yes.

HIS HONOUR: But the power of remitter of matters to the Federal Court is not limited to a remitter of matters that look as though they have a prima facie prospect of success.

MR ROBERTSON: No, no, it would not be. As your Honour points out, if it was an application for an order nisi, this Court might say, "Well, there is nothing whatever in it, so we are not going to send it anywhere." But if that application was in respect of - if I have got the language right - a "judicially reviewable decision" within Part 8, then one would have to fit that issue that your Honour raised with me into one of the statutory grounds of whatever it might be: bias or - - -

HIS HONOUR: Yes, that is because of the provisions of section 485 but those provisions apart, just considering section 44 of the Judiciary Act - - -

MR ROBERTSON: Section 44, on its own, it would answer the description of a matter --and it sounded, in your Honour's instance, like the whole of a matter - pending in this Court other than a matter mentioned in the specified and excluded paragraphs of section 38 of the Judiciary Act. So, leaving aside the Migration Act, that would be so.

HIS HONOUR: Would you like that back for your solicitor to sign?

MR ROBERTSON: Yes, I would, your Honour.

HIS HONOUR: I will put this amended draft order nisi with the papers.

MR ROBERTSON: And I have a signed copy of the consent to orders. Did your Honour insert the date in the amended draft order nisi, that is pursuant to leave granted, that would have been yesterday, I suppose, 22 February or today, I am not sure?

HIS HONOUR: I will put in 22 February.

MR ROBERTSON: I understand that the course that would then be followed under Order 44 rule 23 is that the Registrar would draft an order or produce an order in terms of the consent orders and then your Honour would make that order in due course.

HIS HONOUR: Yes. Very well. Anybody want to say anything more?

I will make orders in terms of the consent document handed to me today and placed with the papers.

I will adjourn.

AT 2.19 PM THE MATTER WAS CONCLUDED