WAFE v MIMIA [2003] HCATrans 432 (24 October 2003)

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WAFE v MIMIA [2003] HCATrans 432 (24 October 2003)

Last Updated: 4 November 2003

[2003] HCATrans 432

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Perth No P91 of 2002

B e t w e e n -

WAFE

Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

Application for special leave to appeal

GUMMOW J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT PERTH ON FRIDAY, 24 OCTOBER 2003, AT 10.44 AM

Copyright in the High Court of Australia
MR M.F. RYNNE: If your Honours please, I appear on behalf of the applicant. (instructed by the applicant)

MS L.B. PRICE: If it please your Honours, I appear for the respondent. (instructed by the Australian Government Solicitor)

GUMMOW J: We might be advanced perhaps by hearing from you in the first instance, Ms Price.

MS PRICE: What is called into question here is section 478 of the Migration Act, a former provision, your Honours. It is our submission, contrary to my learned friend’s submissions, that this is a provision that is within the judicial power of the Commonwealth pursuant to - - -

GUMMOW J: Well, your opponent starts off with, on one view of it, the judgment of my colleague in S157 on 486A, which is the 35 day provision, you remember?

MS PRICE: Yes. This was under the new Part 8.

GUMMOW J: So it does look as if there is a question there, that is all I am putting to you.

MS PRICE: The matter you are referring to, your Honour, is actually under the new Part 8.

GUMMOW J: I realise that, but we are talking about judicial power.

MS PRICE: Yes, but that provision is a challenge to the constitutional writ provisions in the Constitution for the High Court’s jurisdiction.

GUMMOW J: Yes.

MS PRICE: The distinction I would draw here, your Honour, is that what we are dealing with here is the jurisdiction of the Federal Court which, pursuant to section 71 of the Constitution, it derives its judicial power of the Commonwealth through the auspices of section 19 of the Federal Court Act.

GUMMOW J: Well, it is a 76(ii) law ultimately.

MS PRICE: Yes.

GUMMOW J: I am not saying that against you. It is a 76(ii) plus 77(i) for the Federal Court. In other words, it is a matter arising under the law of the Commonwealth, the Migration Act. It is not a matter arising under 75(v), which is the point you are making. But the question is, on one way of looking at it, what are the limits on the creation of a matter under a law and the submitting it to the judicial power and in effect, on one view of it, crippling it by this time provision with no provision for extension.

MS PRICE: Well, it is our submission it is not crippling it, your Honour. It is simply setting a timeframe upon which the jurisdiction of the Federal Court may be invoked and simply in subsection (ii) providing a direction to the Federal Court that it is not to make orders that overcome that time jurisdiction. So it is certainly not taking the position where it is intruding into the - - -

GUMMOW J: Well, it is a particularly sensitive situation because this law is a law of a nature that the litigant is likely to be an unlawful non-citizen and is likely, therefore, to have been detained in pursuance of the requirement that such persons be detained and is, therefore, likely not to have, at the most basic level, physical access to get to the court to file the process.

MS PRICE: Yes, I appreciate that, your Honour, but the Migration Act does not stop an application being filed by a detainee. I think what might happen here is a confusion between the statutory provisions and the physical actions that occurred in the detention centre in this case. The provisions of the Act themselves do not restrict the detainee from having access to making applications to the court, but what unfortunately did occur here was that somehow or other the application did not get through to the Registry of the Federal Court in time.

GUMMOW J: By reason of inactivity on the part of the Executive.

CALLINAN J: And an event which might not have occurred had there been, it might be argued, a much more realistic time limit, because there would have been time to repair perhaps what had gone wrong.

MS PRICE: Yes.

CALLINAN J: I mean, that is the argument. It may be right, it may be wrong.

MS PRICE: Yes, I appreciate that, your Honour.

CALLINAN J: I understand what you are putting.

GUMMOW J: We are only interested to see if there is a point.

MS PRICE: Yes. Well, of course, our argument is that there is no point, your Honour, that all that has occurred is that the Parliament has set a time limit on invoking the jurisdiction of the Federal Court, and that unfortunately was not complied with in this case.

CALLINAN J: Well, that is a relative distinction. The question is, is it likely to be a decisive one? This is an entirely statutory remedy, unlike the constitutional remedy. Whether that is enough to single it out or make it different so far as, one way of putting it is, realistic access is concerned.

MS PRICE: Yes.

CALLINAN J: There is no other way, really, of stating it, is there? That is your point, is it not?

MS PRICE: In essence that is, your Honour, that - - -

CALLINAN J: I am not saying you are necessarily wrong, but that is the question whether that is sufficient.

MS PRICE: Yes. It is simply that subsection (2) is not an attempt to interfere in any exercise of judicial power by the Federal Court. It is simply subsection (1) states the provision conditioning the exercise of jurisdiction and subsection (2) simply asks that the Federal Court comply with the requirements of subsection (1).

GUMMOW J: Not ask, direct.

MS PRICE: Yes, direct. I was putting it politely, your Honour. Certainly, in our submission, the Migration Act does not do any of the things that my learned friend is asserting in his submissions, that it prevents a detainee from exercising his rights to approach the Court or oust a right of communication or impact on the manner of exercising natural justice by the Federal Court.

GUMMOW J: Would I be right in thinking that there are likely to be a number of matters still in the pipeline under the old system, that is the pre-new 474 system?

MS PRICE: Yes. There certainly was a number floating around, your Honour, but as to the situation now, I do not know and I doubt that my instructors – no, I am sorry, I cannot assist on that, your Honour.

GUMMOW J: Yes.

MS PRICE: There is probably not much more I can add on that, your Honour. Our point is simple. It has been put to the Federal Court. The Federal Court has accepted the view that the respondent has put that the
provision is constitutional because it does not attempt to interfere in judicial power but simply define jurisdiction. I cannot put it any higher than the Federal Court has put it, your Honours.

GUMMOW J: Yes, thank you. Yes, Mr Rynne.

MR RYNNE: Your Honours appear to fully apprehend the points that are made by the applicant in respect of the special leave application.

GUMMOW J: Yes. Could we direct your attention to the draft notice of appeal?

MR RYNNE: Yes, your Honour.

GUMMOW J: It is not particularly felicitous at the moment.

MR RYNNE: No.

GUMMOW J: If we were to grant leave, it would have to be on terms that the notice of appeal be revised to reflect the issue that we have been taking up with your opponent.

MR RYNNE: Yes, which would be the operation - - -

GUMMOW J: It might also be assisted if, in addition to studying the judgment of my colleague in S157, there was some regard to the transcript of argument in that case too, because some other members of the Court expressed some views that tentatively you might want to embrace and reformulate in your notice of appeal.

MR RYNNE: Yes, I shall, your Honour, and undertake to file an amended application in those terms that address the issues raised by Justice Callinan in - - -

GUMMOW J: Yes, very well. On that understanding, there will be a grant of special leave in this matter. I think it will be a one day case.

MR RYNNE: At the most, your Honour.

GUMMOW J: I do not know “at the most”, but anyhow. So in No 5 there will be a grant.

AT 10.53 AM THE MATTER WAS CONCLUDED