Devasahayam & Anor, Ex parte - Re Minister for Immigration and Multicultural Affairs M77/1998 [2000] HCATrans 99 (16 March 2000)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No M77 of 1998

In the matter of -

An application for Writs of Certiorari and Mandamus and Prohibition or an Injunction against THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS in relation to a decision through his Delegate, KRISTIN STAMPF DE VAGRAS

Respondent

Ex parte -

RAGHUDEVAN DEVASAHAYAM and SURENTHINI RAGHUDEVAN

Prosecutors

HAYNE J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON THURSDAY, 16 MARCH 2000, AT 10.01 AM

Copyright in the High Court of Australia

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

MR R.R.S. TRACEY, QC: If your Honour pleases, I appear on behalf of the Minister. (instructed by Australian Government Solicitor)

MR KROHN: Your Honour, this is a matter which has previously been before your Honour for directions. The last occasion was 23 November last year and while it was my learned friend Mr Hurley who appeared on that occasion, I understand that a concern that your Honour had to save the Court's time, in your Honour's view, might be achieved if this matter waited, as it were, on the event of - I think your Honour indicated about 300 cases that you thought were possibly before her Honour Justice Gaudron.

HIS HONOUR: That has now blown out to about 2,000 actually, Mr Krohn, I am told by her Honour, but it is a class action involving 2,000 applicants, or 2,000 persons affected, but there we are. My recollection of it was that this matter stood out so that the decision in Applicant A could come down, because it was thought that the decision in Applicant A may well affect the disposition of this matter.

MR KROHN: It is possible that that might also, your Honour - I confess I am not able to help you further with recollection of what your Honour might have said concerning that point but it is possible that that might arise in this case although, as I understand it, I think, in this instance, eventually a statement of the detailed reasons for fearing persecution were provided. Possibly, Applicant A leaves open the question whether, if an application is initially invalid because of a failure to comply with the direction to provide reasons and that criterion, it may, perhaps, retrospectively be validated, or later validated, if those details are provided before the decision of the respondent or his delegate. So far as I understand it, your Honour, that point has yet - it has been raised in a number of matters but has not yet been determined. I am subject to correction on that but - - -

HIS HONOUR: Would not Applicant A at least bear upon that question? My recollection of the basis on which this case was stood over tends, it seems to me, at least, to be confirmed by page 83 of the transcript of proceedings on the last day where, at line 1201, reference was made to this case as being "one that Mr Tracey suggests simply stand out of the list generally to await the decision in Applicant A". That was agreed to and there was no further debate upon it. It is not, therefore, clear to me how, if at all, this matter may be connected with the other actions proceeding in the Sydney Registry of the Court of which Justice Gaudron has management.

MR KROHN: Well, your Honour, it was my reading of the transcript which may be in error. My understanding was that it was because this was a decision made by a delegate without a later decision by the Tribunal, but perhaps I am in error about that.

HIS HONOUR: What do you say I should do today?

MR KROHN: Your Honour, I would submit that - on the view that it may be affected by the event of that class action before her Honour, my first submission would be that, on that ground, it would be appropriate that it simply stand adjourned until that is determined. But, separately, hearing what your Honour says concerning the Applicant A Case, if your Honour is not disposed to do that, then it would be appropriate that there be, perhaps, directions for submissions directed to the effect on this case of Applicant A to be exchanged between the parties.

HIS HONOUR: Yes, and come back when?

MR KROHN: Well, I would propose, your Honour, a timetable of, perhaps, say, of the order of three weeks for submissions by the prosecutor, three in reply by the respondent and then come back before your Honour thereafter.

HIS HONOUR: The case is getting very old. It is a 1998 case. The point will have to come where the parties face up to what is to be done.

MR KROHN: That is so, your Honour, I accept that. In my submission, there are two points which are very simply crystallised. One is the issue of the Applicant A matter. The other is whether the Minister correctly says that if there has been a determination by the Refugee Tribunal, that it has no jurisdiction, that he has no power then under section 417. So, while what I ask for, your Honour, does involve some further time, I would say to your Honour that this is a case which is now close to the point where it simply can be argued. But if I may simply repeat, that if it is a matter which could be affected by the class action before her Honour Justice Gaudron, then it would seem appropriate that it wait upon that event but that would not prevent your Honour giving directions today for the provision of submissions.

HIS HONOUR: I should say to you, Mr Krohn, that I simply have no basis for knowing, one way or the other yet, whether this is affected by that class action.

MR KROHN: I understand, your Honour. On that basis, your Honour, perhaps the appropriate course would be for your Honour to direct submissions by the prosecutor and with time for the respondent to reply. Just picking dates more or less at random, your Honour, I would propose - - -

HIS HONOUR: Perhaps before we come to timetabling, it is one where it would be necessary to work backwards. I am to sit again on 29 March. I am anxious not to multiply the number of chamber hearing days. I will hear what Mr Tracey has to say but my present inclination is to say that if there is to be some further time, that time may need to be moulded towards coming back on 29 March, knowing exactly where this case is going to go and how it is going to go.

MR KROHN: Perhaps, then, may I suggest, just before my learned friend addresses your Honour, that as the 29th is but 13 days away, perhaps your Honour would contemplate allowing the prosecutor until perhaps a couple of days before that, perhaps the 27th, if your Honour is - - -

HIS HONOUR: Let us hear what Mr Tracey has to say about that, Mr Krohn, but it is now nearly two years old, this case. The prosecutor has had a very long time in which to consider the way in which the case is to be put. Mr Tracey, what do you say I should do?

MR TRACEY: Your Honour, may I rehearse a little more of the history of this matter? The matter was before you on 11 October last year. On that occasion your Honour made orders that the:

Prosecutor file and serve a summary of argument on or before 12 November 1999 setting out:

(a) grounds upon which any decision the subject of the application is challenged;

(b) the remedies sought;

(c) the reasons applicable for any enlargement of time to enable particular remedies to be sought;

and I will return to that point in a minute, your Honour, and:

(d) whether the matter should be remitted to any, and which, court.

HIS HONOUR: It has not happened.

MR TRACEY: Now, your Honour, that order was not been complied with, it still has not been complied with in March 200, and you are being asked, effectively, to provide more time to do what your Honour ordered should have been done by 12 November last.

Now, your Honour, the history of this matter can be summarised relevantly in this way. The visas which were sought were refused on 9 January 1997. The decision was notified to the prosecutors on 13 January 1997. The Refugee Review Tribunal decided that it did not have jurisdiction to deal with a review application on 4 March 1997 and, as your Honour has observed, the draft order nisi was filed in this Court 18 months later, on 14 September 1998 with no explanation, no basis for the enlargement of time being advanced, and we are no further forward on that point, as a result of the failure to comply with your Honour's order made in October last year, which would have required the prosecutors to explain that long delay and why they should be granted the enlargement of time.

Now, your Honour, in our submission, there is no doubt that Applicant A produces the result that if this matter were referred to the Federal Court by your Honour, it would hold that it did not have jurisdiction. Any single judge would be bound by Applicant A. So the reality is it is going to stay here, regardless of any submissions that might be made in the next 13 days. The question then becomes what your Honour does with it. We would want the opportunity, your Honour, to argue that there ought not to be any orders nisi issued and that the application for them should be refused on the basis, firstly, that there is no proper case made for an enlargement of time and, in the second instance, that there is no arguable case that would warrant the grant of orders nisi.

Now, whether we do that today, your Honour, whether we do it on the 29th, we are in your Honour's hands. But we think it ought to be done sooner rather than later.

HIS HONOUR: Mr Tracey, I understand the great force of what you say. My inclination is to put it to the 29th for the argument of those issues. If I were to do that, how do you say I would best be assisted, with some outline of argument or pieces of paper that would assist to focus the debate?

MR TRACEY: Your Honour, we would submit that compliance with your Honour's order of 11 October 1999 would produce that result and if our friends did that within seven days, we could respond to it in good time for your Honour to have both sets of written submissions before the 29th.

HIS HONOUR: Yes. That order was made 11 October?

MR TRACEY: Yes, your Honour. I have a copy of it if it would assist.

HIS HONOUR: No, I have it, thank you, in the papers.

MR KROHN: Your Honour, may I respond briefly - - -

HIS HONOUR: Yes, please, Mr Krohn. I am just digging out the order first, if I may. It helps if I read the index properly, rather than wrongly, does it not, Mr Krohn. Counting to 15 was always beyond me, I am afraid.

MR KROHN: Your Honour, if I may respond very briefly to two points made by Mr Tracey. The first, as to the length of time and the matter coming before this Court, it is something that should be explained in more detail in submissions, but the matter was filed in this Court in September 1998, and that was very shortly after the Minister wrote - or someone from the Department wrote in August 1998 to the prosecutor indicating that the Minister would not exercise or would not consider whether to exercise a power under section 417.

HIS HONOUR: But let all that be assumed for the moment, what do you say about the order of 11 October?

MR KROHN: Your Honour, all I would say - and for some reason the copy of the transcript from 22 November I have in front of me, but something not very helpfully with page numbers, but there is some reference that your Honour made, and perhaps it was misinterpreted by the prosecutor, that there was an observation concerning whether anything could be remitted in this case and my learned friend said that "without having seen a summary", there is a difficulty:

and that being so and given that there are other like cases ahead of it on what your Honour has just said, it is probably better that it be adjourned - - -

HIS HONOUR: Just stand out of the list generally.

Then your Honour's next observation was:

Yes, yes. Well, I think that there is much to be said for standing Devasahayam and similar cases out of the list.

Now, your Honour, it may be that other things were said subsequently, which I do not have a record of - - -

HIS HONOUR: Is there any reason why I should not order that on or before 4 pm on the 23rd of this month the prosecutors file and serve a summary of argument, setting out the matters that were mentioned in my earlier order of 11 October?

MR KROHN: No reason, your Honour. That would be - - -

HIS HONOUR: And if I adjourned matter to return before me on 29 March, you have heard Mr Tracey say that he will then seek to persuade me that there is no proper case for enlargement of time and there is no arguable case and that order nisi ought to be refused.

MR KROHN: Yes, I have heard that, your Honour.

HIS HONOUR: If I were to order:

1. That on or before 4 pm, 23 March 2000, the prosecutors file and serve a summary of argument setting out:

(a) the grounds upon which any decision the subject of the application is challenged;

(b) the remedies sought;

(c) the reasons applicable for any enlargement of time to enable particular remedies to be sought; and

(d) whether the matter should be remitted to any, and which, court.

2. That on or before 4 pm, 28 March 2000, the respondent file and serve a summary of argument in answer to the prosecutor's summary.

3. The matter be adjourned for further hearing in Melbourne on 29 March 2000 at 9.30 or such other time and date as may be notified.

4. Reserve the costs.

5. Certify for counsel.

Would counsel on either side have anything to say against me making such orders?

MR KROHN: No, your Honour.

MR TRACEY: Not on our part, your Honour.

HIS HONOUR: Then orders will be made in those terms.

Lest there be any doubt about it, Mr Krohn, you should come prepared on that date to argue whether order nisi should be granted or refused.

MR KROHN: I understand that, your Honour.

HIS HONOUR: Call the next matter, Abulkalam.

AT 10.20 AM THE MATTER WAS ADJOURNED

UNTIL WEDNESDAY, 29 MARCH 2000