Applicant S20/2002, Ex parte - Re MIMA & Anor S20/2002 [2002] HCATrans 57 (26 February 2002)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S20 of 2002

In the matter of -

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

First Respondent

THE REFUGEE REVIEW TRIBUNAL OF THE COMMONWEALTH OF AUSTRALIA

Second Respondent

Ex parte -

APPLICANT S20/2002

Applicant/Prosecutor

GUMMOW J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 26 FEBRUARY 2002, AT 9.30 AM

Copyright in the High Court of Australia

MR R.T. BEECH-JONES: If your Honour pleases, I appear on behalf of the prosecutor with my learned friend, MR L.J. KARP. (instructed by McDonells Solicitors)

MR S.J. GAGELER, SC: If your Honour pleases, with MR G.R. KENNETT, I appear for the first respondent. (instructed by the Australian Government Solicitor)

HIS HONOUR: Yes, Mr Beech-Jones? Well, this is really ex parte at the moment, I suppose.

MR GAGELER: Yes, it is.

HIS HONOUR: So, there is no appearance for the second respondent, but there does not need to be.

MR BEECH-JONES: In the ordinary course we would expect the submitting appearance, your Honour. Your Honour, yesterday afternoon we forwarded to the Registry a slightly amended draft order nisi. I do not know if your Honour saw that. Somewhere along the lines the word "INJUNCTION" was substituted for the word "PROHIBITION".

HIS HONOUR: Yes, I saw that.

MR BEECH-JONES: Your Honour also may be aware that there is a related special leave application.

HIS HONOUR: Yes, I am.

MR BEECH-JONES: Returnable next Tuesday but, of course, we freely concede that may be affected by the passage of the Migration Legislation Amendment (Judicial Review) Act towards the end of last year.

HIS HONOUR: Wait a minute, I cannot hear you.

MR BEECH-JONES: We accept that that application, the fate of that may be certainly affected by the passage of the Migration Legislation Amendment (Judicial Review) Act.

HIS HONOUR: Is that right? Is there a debate about that? I need to know so we can get ourselves arranged for the special leave application.

MR BEECH-JONES: That was the Bill that deleted the old part A of the Act and put in the so-called privative clause.

HIS HONOUR: Yes.

MR BEECH-JONES: It does not affect the legal context in which this matter is to be determined but it certainly affects the question as to whether the interpretation of the old 476(2), which removed Wednesbury unreasonableness, has an effect on future cases in the Federal Court.

HIS HONOUR: I am only worrying about this case at the moment.

MR BEECH-JONES: Yes, I accept that, your Honour.

HIS HONOUR: Are you saying, or not saying, that the recent changes have any impact on the - - -

MR BEECH-JONES: We are saying they have no affect on this case before your Honour.

HIS HONOUR: No, no, on the special leave application.

MR BEECH-JONES: We accept that there is an argument that will be raised, that whether the special leave application raises a matter of public importance may be affected by the legislative changes.

HIS HONOUR: No, I am worried about competency, that is all.

MR BEECH-JONES: No. No, your Honour.

MR GAGELER: That is so, your Honour.

HIS HONOUR: All right. Then what about today's matter?

MR BEECH-JONES: Your Honour, we - - -

HIS HONOUR: In other words, is there any jurisdictional inhibition or bar placed on today's application by anything in the recent amendment?

MR BEECH-JONES: We say, no, your Honour.

HIS HONOUR: What do you say about that?

MR GAGELER: It is common ground, your Honour.

HIS HONOUR: All right. Well, there you are. That straw man has gone away. The Full Federal Court decision was given before or after Yusuf and Israelian?

MR BEECH-JONES: Before.

HIS HONOUR: Right. So, Justice Finkelstein's dissent in the Full Court was based on other reasoning?

MR BEECH-JONES: Yes, your Honour.

HIS HONOUR: And you will be relying on his dissent?

MR BEECH-JONES: We will, your Honour, and we would be also relying on your Honour's comments in Eshetu or your Honour's judgment in Eshetu which - - -

HIS HONOUR: Now, are you also relying on anything in Yusuf and Israelian?

MR BEECH-JONES: Yes, your Honour.

HIS HONOUR: That is two heads. Anything else?

MR BEECH-JONES: I always get it wrong: Enfield City Commission.

HIS HONOUR: No, no, I am just - - -

MR BEECH-JONES: Can I just say, your Honour, the judgment in Yusuf we would rely on for next Tuesday, not for today.

HIS HONOUR: That is what I am trying to find out. I am trying to find what is in the special leave application. Only if I know that can I work out what I have to do today. It is simple, really.

MR BEECH-JONES: I see, right. Your Honour, can I put it this way: yes, your Honour, we would rely on Yusuf, and I think our submissions set out that since the decision of the Full Court, the decision in Yusuf has been handed down, so what we say in our favour is your Honour's judgment in Eshetu, the extent to which that was picked up in Enfield, Justice Stone did not think that Enfield's endorsement of your Honour in Eshetu picked up your Honour's analysis or interpretation of the Migration Act and also Yusuf and also Justice Finkelstein's dissent.

HIS HONOUR: Now, how do you understand the reasoning in Justice Finkelstein's dissent, in terms of the legislation? How does he fit it in to jurisdiction - to the continuation of jurisdiction?

MR BEECH-JONES: His Honour distinguishes, if your Honour will just with me - - -

HIS HONOUR: Do not read it out to me. Just tell me as you understand it. I have read it too.

MR BEECH-JONES: As I understand it, your Honour, his Honour embraces what your Honour said in Eshetu about the construction of 476(2) and, in particular, that the unreasonableness being considered there was directed to abuses of discretionary powers and not to the formation of opinions that are a precondition to the exercise of a jurisdiction.

HIS HONOUR: Yes. Now, assuming that is right, how then does he see this case falling within any positive conferral of authority? I mean, you have excluded a negative. You still have to find a positive.

MR BEECH-JONES: His Honour does not, I think, identify the ground other than, I think, your Honour, we would say implicitly accepting the way we put it, which I think was consistent with Yusuf, that is, the "not authorised by law" - - -

HIS HONOUR: Yes. It is, maybe at that stage, Yusuf and Israelian comes into the picture.

MR BEECH-JONES: It may be, your Honour, yes. We do not go as far to say that Yusuf destroys the Full Court's - or is necessarily inconsistent with the Full Court's interpretation of 476(2) but we say it certainly is of great assistance.

HIS HONOUR: Now, the factual matrix, to use that expression, that founds all of this in the special leave framework is the same factual maxtrix that would found today's application, is it not?

MR BEECH-JONES: Yes, your Honour.

HIS HONOUR: So, should I not stand over today's application to see what happens to the special leave applications?

MR BEECH-JONES: Your Honour, that was the course we proposed in the affidavit and we would not have anything to say against that.

HIS HONOUR: Yes. Now, just assume for a minute you got special leave and assume you were successful, what would then follow? The matter would have to go back to the Full Court, would it, because two members of the Full Court thought they could not enter into this, into the so-called merits, if you like, because there was no ground? Just assume you were successful in showing there was a ground, what would happen then?

MR BEECH-JONES: We would then ask your Honours to determine whether the ground is made out.

HIS HONOUR: I see.

MR BEECH-JONES: Can I just say this, your Honour, that of the four Federal Court judges to date that have looked at it, all have expressed particular views about the rationality of the reasoning. But leaving that aside, the determination of the ground is not - the decision is fairly confined. The point of the illogicality does not take too long to develop.

HIS HONOUR: Now, your client is not in detention at the moment, is he?

MR BEECH-JONES: No.

HIS HONOUR: All right. Well, that is the tentative course I would take. Is there anything you want to say, Mr Gageler?

MR GAGELER: Does your Honour's tentative course involve standing this matter over until after the special leave application?

HIS HONOUR: To the day of the special leave, and then depending upon what happened on that day, a direction would be given as to what happens to this matter.

MR GAGELER: Yes. Could I suggest, perhaps, a slight variation, your Honour, and that would be to stand the application for an order nisi over to the Bench that hears the special leave application, to be heard concurrently or consecutively by the same Judges.

HIS HONOUR: Yes, that is right, yes. Yes, that is my intention.

Has someone got a matter number of the leave application?

MR GAGELER: Yes, it is S125 of 2001.

HIS HONOUR: Thank you. I have said:

(1) Stand over the application for an order nisi to 5 March 2002, at Sydney, for listing with the special leave application No S125 of 2001 set down for that day;

(2) Costs reserved;

(3) Certify for counsel.

MR BEECH-JONES: If your Honour pleases.

MR GAGELER: If the Court pleases.

HIS HONOUR: Is there anything else?

MR BEECH-JONES: No, your Honour.

AT 9.41 AM THE MATTER WAS CONCLUDED