Gurung v MIMIA P40/2002 [2002] HCATrans 412 (28 August 2002)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Perth No P40 of 2002

B e t w e e n -

DHAN GURUNG

Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

CALLINAN J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

FROM PERTH BY VIDEO LINK TO BRISBANE

ON WEDNESDAY, 28 AUGUST 2002, AT 11.00 AM

(Continued from 26/6/02)

Copyright in the High Court of Australia

MR H.N.H. CHRISTIE: May it please your Honour, I appear on behalf of the applicant. (instructed by Christie & Strbac)

MR P.R. MacLIVER: May it please your Honour, I appear on behalf of the respondent. (instructed by the Australian Government Solicitor)

HIS HONOUR: Mr Christie, you read my judgment in relation to this matter?

MR CHRISTIE: Yes, I have, your Honour. The matter raised by the respondent in relation to your judgment, your Honour, in relation to the service of the document is that whilst regulation 5.03 may be invalid, the period to apply to the Immigration Review Tribunal from the decision of MARA, as it then was, was a 21-day period and in those circumstances it does appear that even if one allows seven days after the 21-day period, or possibly whatever would amount to the ordinary course of post, then the application to the Tribunal is still out of time.

HIS HONOUR: But, Mr Christie, before you get to that, if you look at what I said in the final paragraph, I said, as a condition of the injunction:

that the applicant file and serve by 7 August 2002 all properly formulated and presented applications as he may be advised, together with a comprehensive outline of submissions. Material and submissions of the kind already filed and made are totally unacceptable.

Now, where is the outline of submissions to which I referred?

MR CHRISTIE: Well, indeed, your Honour, I have only just been instructed by the applicant. I have discussed with him his previous representation. It is accepted that he considers, and indeed I accept, that he was previously badly advised. He does not wish to pursue this application further.

HIS HONOUR: He does not wish to pursue the application further?

MR CHRISTIE: He does not wish to pursue the application further. Indeed, he wishes to be removed by the department as soon as possible and I will be writing to the department to that effect.

HIS HONOUR: I see.

MR CHRISTIE: This is on the basis of my advice, your Honour, that in my view, having reviewed the limited papers that I have seen, that the application, in the long-term at least, has no reasonable prospects of success.

HIS HONOUR: All right. So you wish the matter to be discontinued then, or dismissed?

MR CHRISTIE: Yes, your Honour.

HIS HONOUR: All pending applications to be dismissed, is that right?

MR CHRISTIE: As I understand it, the only application before your Honour at this stage is an application for special leave and - - -

HIS HONOUR: It is all a bit ambiguous, Mr Christie. It is not your fault, but there is, I think, considerable ambiguity about the nature of the applications which have been made. There was a possibility that reading them generously one might have treated perhaps one of the applications as an application for prerogative writs under the Constitution, but that is why I asked you that question, that all pending applications be dismissed on the basis that the applicant no longer wishes to proceed, is that correct?

MR CHRISTIE: That is correct, your Honour.

HIS HONOUR: All right, thank you. I will just hear from Mr MacLiver.

MR MacLIVER: Yes, thank you, your Honour. Your Honour, the respondent will only seek the usual order for costs.

HIS HONOUR: Mr MacLiver, the application that has been filed and that has repeatedly been before me purports to be an application for special leave, does it not?

MR MacLIVER: It purports to be that, your Honour, yes, in its terms, yes.

HIS HONOUR: Although perhaps, taking a very generous view of it, it might obliquely seek to raise a constitutional point, is that right?

MR MacLIVER: Yes, I think that is fair to say, your Honour, yes.

HIS HONOUR: All right. In any event, there is only one form of application that has been filed and that is before me.

MR MacLIVER: That is right, your Honour, and there is one other application in the Federal Court.

HIS HONOUR: Right. I cannot deal with that.

MR MacLIVER: No.

HIS HONOUR: All right, thank you, Mr MacLiver. You are looking for your costs, are you? You ask for costs?

MR MacLIVER: Yes, your Honour.

HIS HONOUR: All right. Mr Christie - - -

MR CHRISTIE: Yes, your Honour. In the circumstances, I do not consider I can oppose an order for costs. Indeed, I think your Honour has already made one in relation to the previous hearing.

HIS HONOUR: All right, thank you, Mr Christie.

I order that the application for special leave to appeal to this Court and the application for an interlocutory injunction be dismissed by consent. I order that the applicant pay the respondent's costs, including reserved costs of the matters which have been before me and are before me today. I certify for counsel.

Mr MacLiver, I think that is right, is it not? I think there was actually a separate application for an interlocutory injunction, was there not? Perhaps it may have been done orally.

MR MacLIVER: Yes, I think there was a separate document entitled "Summons", your Honour, yes.

HIS HONOUR: So I have dismissed both applications now, including the application for special leave, by consent.

MR MacLIVER: Yes, I think that covers both matters, your Honour.

HIS HONOUR: All right. Nothing further then, Mr MacLiver?

MR MacLIVER: Not from me, your Honour, no.

HIS HONOUR: All right. Nothing further, Mr Christie?

MR CHRISTIE: No, your Honour.

HIS HONOUR: All right, thank you. Close the Court.

AT 11.10 AM THE MATTER WAS CONCLUDED