Abulkalam, Ex parte - Re Minister for Immigration and Multicultural Affairs & Anaor M129/1998 [2000] HCATrans 96 (16 March 2000)

IN THE HIGH COURT OF AUSTRALIA

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

HAYNE J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON THURSDAY, 16 MARCH 2000, AT 10.20 AM

Copyright in the High Court of Australia

MR A.F.L. KROHN: May it please the Court, I appear for the prosecutor. (instructed by Ravi James & Associates)

MR R.R.S. TRACEY, QC: In this matter, if your Honour pleases, I appear with my learned friend, MR D.J. BATT. (instructed by the Australian Government Solicitor)

HIS HONOUR: Where are we up to in this matter?

MR KROHN: Your Honour, in this matter, which also has been before you for directions in October and November of last year, your Honour made an order nisi remitting, in effect, four of the Part 8 grounds under the Migration Act to the Federal Court in relation to the decision by the Refugee Review Tribunal and an order nisi was granted in relation to the other matters retained in this Court.

Your Honour, since that time, the papers have gone to the Federal Court and a docket judge has been allocated to the case remitted. I understand that a directions hearing is listed for early April. So that that aspect of the case is already under way in the Federal Court. On that basis, your Honour, the prosecutor's submission is that it would be appropriate, in the interests both of court time and of costs, that the proceeding remaining in this Court be adjourned pending the result of the proceeding in the Federal Court.

HIS HONOUR: The order of 23 November was that the matter be adjourned for further directions on a date to be fixed on not less than three clear days notice. Which side provoked the relisting?

MR KROHN: I understand it was the respondent, your Honour. Perhaps it would help your Honour to hear from my learned friend.

HIS HONOUR: Yes.

MR TRACEY: Your Honour, I am told it was at the initiative of the Registry.

HIS HONOUR: That, I rather suspect, therefore means at my initiative. Left hand and right hand, Mr Tracey, you are familiar with this, I take it.

You want the matter simply to stand over while the Federal Court proceeding goes on?

MR KROHN: Yes, your Honour. My instructions are, as I say, that the Federal Court proceeding is already under way.

HIS HONOUR: Yes, very well. Mr Tracey, what do you say we should do?

MR TRACEY: Your Honour, we have some draft orders that we would invite your Honour to consider and make, if your Honour was so disposed. Your Honour, what that involves would be your Honour dealing this morning with one aspect of the matter that has been retained, namely the 417 aspect, because we would wish to argue that there is no case that can properly be made out in support of that aspect of the order nisi. If your Honour was disposed to take that course and was persuaded by our arguments, then the orders that we would seek are those that your Honour has before you. Alternatively, if your Honour was not disposed to take that course, then the 417 matter could be adjourned.

HIS HONOUR: The matter may partake of the hypothetical at the moment, may it not? If the Federal Court disposes of it one way, then we never get to this ground. If it disposes of it the other way, then, yes, then we get to the ground.

MR TRACEY: Yes, but your Honour may recall that your Honour gave directions with a view to evidence being put on.

HIS HONOUR: Yes.

MR TRACEY: That has been done with a view to having this matter argued in this Court. Now, with that evidence in, we submit that the 417 aspect of it can be readily disposed of. The remaining matter that is retained in this Court is the natural justice matter which might properly be adjourned and abide the outcome of Epeabaka. But sooner or later, your Honour, we would submit that it is likely the 417 aspect of it is going to have to be dealt with.

HIS HONOUR: Yes. And then the point which now bears in on me, and should have borne in on me earlier, is whether this then is the vehicle in which to do it.

MR TRACEY: There are a lot of cases that raise this issue, your Honour.

HIS HONOUR: Are there some, though, that raise it shorn of other issues, or are they generally speaking wrapped up with other issues, Mr Tracey?

MR TRACEY: Yes, your Honour, because what usually happens in these cases is that there is a refusal by the Tribunal or the delegate. Then the application is made for the Minister's exercise of power under 417. That is refused, and then the whole lot ends up getting challenged. So it is not easy to find a case. Your Honour may recall that on 23 November this was the case that was chosen.

HIS HONOUR: Yes, as the vehicle.

MR TRACEY: Yes, your Honour. I think it was for that reason your Honour made the order about evidence being put on in this case, but not others.

HIS HONOUR: Can we test it this way, Mr Tracey? Let it be assumed that the matter were to go before a Full Court on this aspect of the matter. Would it be said that, until the Federal Court passes on the grounds which it has, we are engaging in an exercise that may prove to be arid?

MR TRACEY: In the context of this case, your Honour, if the Federal Court were to find error of a kind that led to the setting aside of the decision of the Tribunal, then presumably the matter would be remitted and the door would then be open upon a further consideration for another 417 application. So, to that extent, your Honour, yes, there is that risk. That really cannot be gainsaid, but there has still got to be a test case under 417 and, as your Honour recalls, this was the agreed vehicle.

HIS HONOUR: I well understand that I am as responsible as anyone for the position in which we now find ourselves, Mr Tracey. We have this hurtling locomotive running down the rails. If the brakes are going to be put on, they have to be put on now, though, and such criticisms levelled at the engineer then as seem appropriate.

MR TRACEY: Your Honour, no criticism is implied, but could I make this observation, that this was not our first choice. You may remember that Mr Hurley, I think, was on his feet and proposed this case as the test case.

HIS HONOUR: Abulkalam become the test. What has tossed me, frankly, Mr Tracey, is that my recollection was that Abulkalam was one which was the naked point, without other issues raised. And yet the order I made remitted part. Now, I just wonder whether, in that bulk disposition we had on that day, that has led to the difficulties we are now in. Can we go back and just trace it through. There is no doubt that the order that is made is an order remitting part.

MR TRACEY: That is so, your Honour.

HIS HONOUR: What has now got me tossed is - have you the transcript of the proceedings of the last day in Internet form or - - -

MR TRACEY: I have it in Internet form.

HIS HONOUR: You will find, about three or four pages from the end of the proceeding on that day the form of the orders made in 28 matters which I then identify. Do you have that part of the transcript?

MR TRACEY: Yes, I do, your Honour.

HIS HONOUR: If you come from those orders, I ask Mr Hurley whether he had anything to say. "No." Ask you whether you had anything to say:

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.

Yes, I see. I can see what has happened. What I have not adverted to there is that what suddenly became the test case for the 417 was one involving partial remitter. There is no point making any bones about it, Mr Tracey, it has slipped through; slipped under my guard and there we are, because I had in my mind that the 417 case was a narrow naked 417 point, not a 417 plus other points. If we are going to have a fault-finding exercise, I fear it lies with me, rather than the parties. But we have now got a partial remitter. That being so, it does seem to me that there is too much of the hypothetical about it, until the other grounds are determined.

MR TRACEY: I understand the force of what your Honour says. We may have to look around for another vehicle, your Honour, sooner rather than later.

HIS HONOUR: Yes, I understand that.

MR TRACEY: But it will be difficult to find one shorn of anything else, for the reasons that I have explained earlier, your Honour, because the 417s always come on top of earlier adverse decisions.

HIS HONOUR: They are the immediate step after the adverse decision by the Tribunal. Yes, I understand that. At the moment, I am bereft of solutions to offer for the difficulty that has now emerged, Mr Tracey.

MR TRACEY: Your Honour, all I can suggest is that this matter should be adjourned pending the outcome of the Federal Court and that we make earnest endeavours to find another suitable vehicle that we can mention to your Honour at an appropriate time. It is going to be difficult because it will have to be in a future batch because all the similar orders were made in the bulk of the ones that were before your Honour last year.

HIS HONOUR: And, of course, in none of those is any applicant going to give away his or her rights in respect of other issues simply for the advantage of obtaining a test case. Is there any way in which, though, the disposition of the matters in the Federal Court can be adjusted so that some promotion of this or another suitable vehicle up the list occurs to leave the 417 point freestanding? That is very much a matter for the Federal Court - - -

MR TRACEY: I understand how your Honour puts it and that suggestion, coupled with your Honour's earlier suggestion that it may be appropriate for Federal Court judges to have access to transcript in matters of this kind may assist, because there is a directions hearing coming up in Abulkalam in the Federal Court within the next couple of weeks and we could, in reliance on your Honour's observations just made on the transcript, draw to the docket judge's attention what your Honour has said and ask for an early hearing.

HIS HONOUR: But, of course, it is a matter entirely for his Honour or her Honour concerned to order his or her docket as they see fit, but I see the advantage if it can be dealt with in that way.

MR TRACEY: Yes, your Honour. We will undertake, at that directions hearing, to have the matter drawn to the docket judge's attention.

HIS HONOUR: The only order that I think can be made today is to adjourn the matter to a date to be fixed on not less than three days notice in writing to the opposite party, reserving costs and certify.

MR TRACEY: If your Honour pleases.

MR KROHN: If your Honour pleases.

MR TRACEY: Could I just raise one point, your Honour. Your Honour did make a timetable, as you recall, in this case and it involved, if our friends were so minded, to put on any answering material to our material, which was in in January. Nothing has been put on. Could we just confirm, your Honour, in open court, so that there is no difficulty if at some stage when the matter is to be brought on if it is, that we are at the end of the evidentiary stage and that the matter is ready for hearing.

HIS HONOUR: I have not vacated that earlier direction. The direction stands. I understand time has now gone for it, but the direction stands about putting on answering material. When the matter comes back on I would expect that the parties would then be able to tell me that the evidentiary base was completed.

MR TRACEY: Yes, your Honour.

HIS HONOUR: Call the next matter.

AT 10.39 AM THE MATTER WAS ADJOURNED

TO A DATE TO BE FIXED