Applicant P76/2002 v MIMA P76/2002 [2003] HCATrans 572 (14 February 2003)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Perth No P76 of 2002

B e t w e e n -

APPLICANT P76/2002

Applicant

and

MINISTER OF IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

Application for special leave to appeal

Office of the Registry

Perth No P77 of 2002

In the matter of -

An application for Writs of Prohibition, Certiorari and Mandamus and other relief against THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

First Respondent

THE REFUGEE REVIEW TRIBUNAL

Second Respondent

Ex parte -

APPLICANT P77/2002

Applicant/Prosecutor

McHUGH J

HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 14 FEBRUARY 2003, AT 9.34 AM

Copyright in the High Court of Australia

________________

MR J. BASTEN, QC: Your Honours, I appear for the applicant and prosecutor in these matters. (instructed by Public Interest Advocacy Centre)

MR A.L. CAVANOUGH, QC: If the Court pleases, I appear with my learned friend, MR P.R. MACLIVER, on behalf of the Minister in these matters. (instructed by the Australian Government Solicitor)

McHUGH J: I have two certificates from the Registrar. In matter P76 the Deputy Registrar certifies that in the proceedings before the Full Court of the Federal Court the Human Rights and Equal Opportunity Commission intervened. It has not been named as a party to this application but notwithstanding this it has entered an appearance indicating that the Commission submits to any order of the Court save as to costs. In matter P77 of 2002 the Deputy Registrar certifies that the Australian Government Solicitor has informed her that the first respondent, the Refugee Review Tribunal, does not seek to be heard on the application and will abide the jurisdiction of the Court save as to costs. Yes, Mr Basten.

MR BASTEN: Your Honours, although the third question identified in the application book at page 82 bears a similarity to the questions which were raised in the previous matter, the other two questions turn, in at least a significant degree, upon the proper characterisation of the challenge, namely as to whether it does indeed involve any error which was reviewable under 476(1) of the Migration Act in the form it then stood, or whether the issues raised should more properly have been dealt with as matters of procedural fairness.

It was for that reason that the originating summons was issued in this Court. The originating summons raises purely questions of procedural fairness. It could now be remitted by this Court to the Federal Court which now has jurisdiction to deal with it. If that were thought to be an appropriate course to be taken in relation to P77, then I would invite the Court to stand the special leave application over so that that matter can be dealt with and the issues can be fully agitated if necessary when the procedural fairness matter has been disposed of.

I can indicate, if necessary, why it is that we say that it can be remitted, but I think it has been a common position with the Minister for a few months now that there is an ability to remit any matter commenced after 2 October 2001 involving a question of procedural fairness.

HAYNE J: If you were to fail on the natural justice points on remitter, what consequence, if any, would that have for the leave application?

MR BASTEN: Your Honour, it would depend upon the basis on which we failed. It might mean that the leave application was of no further merit. It might mean that the matter could properly be dealt with on a point of law, which we do not yet know the precise terms of. So I would not be in a position to say that the leave application would necessarily fail if we failed on the remitted matter, though one possibility is that that would be the case, in which case no doubt it would be withdrawn.

McHUGH J: What is the precise orders that you seek?

MR BASTEN: To have the special leave application stood over - - -

McHUGH J: Is that only in P77?

MR BASTEN: That is P76. That is the leave application I think, your Honour.

McHUGH J: Yes.

MR BASTEN: And for P77, for the order nisi application to be remitted to the Federal Court of Australia.

McHUGH J: Yes.

MR BASTEN: There were standard terms for remittal which I think were dealt with last week by this Court in many hundreds of matters.

McHUGH J: Yes.

MR BASTEN: We would be content with those.

McHUGH J: Yes. Yes, Mr Cavanough, what do you say about it?

MR CAVANOUGH: If the Court pleases, we submit really that the matter ought to proceed today on the basis that we say there is no real merit in the application for special leave and no real merit in the application for an order nisi. The applicant has been in custody for a long time. If the matter were remitted to the Federal Court, that is to say the order nisi matter, that would involve more delay, more uncertainty as to the ultimate fate of this challenge.

In our respectful submission, it is not really a separate challenge at all. It really is a repetition under a different heading of the same point that was sought to be made below in the Federal Court in the existing matter and is sought to be made in the special leave application.

HAYNE J: Now, that is a point, is it, that requires consideration of the Immigration (Guardianship of Children) Act, is it?

MR CAVANOUGH: Yes, your Honour.

HAYNE J: Does it require consideration of whether the persons not of full age for whom the Minister is guardian should have had benefit of the appointment of a guardian ad litem for the purpose of the proceedings in the Tribunal?

MR CAVANOUGH: Yes, that is essentially the point that was sought to be made in the existing proceeding and in a sense sought to be made again in the proposed order nisi.

HAYNE J: Is that a point which has been considered in those terms in the Federal Court?

MR CAVANOUGH: Your Honour says "in those terms".

HAYNE J: Well, has the point been decided by the Federal Court?

MR CAVANOUGH: Yes, in my respectful submission, it has. The court in this matter held that there was no source of any such duty and indeed that no criticism could be levelled at the Tribunal on any basis - - -

HAYNE J: It is not a question of levelling criticism at the Tribunal.

MR CAVANOUGH: No.

HAYNE J: A question of whether proceedings were in effect properly constituted, whether infants for whom the Minister was guardian could bring application for review of an administrative decision in an administrative tribunal in effect against the Minister, where the Minister is both guardian and the person whose decision is challenged.

MR CAVANOUGH: Your Honour, it was the applicant's own case that the applicant could do that.

HAYNE J: Yes, I understand that, and that the Minister had appointed solicitors to act for the infants.

MR CAVANOUGH: That is right.

HAYNE J: Who was giving them instructions?

MR CAVANOUGH: The applicant personally, as is required under the Migration Act.

HAYNE J: Yes, that is to say infants.

MR CAVANOUGH: This particular infant, yes.

HAYNE J: I understand that. Is there not a point of some difficulty in there?

MR CAVANOUGH: With respect not, your Honour. It was examined we say appropriately by the Full Court and dealt with we say in a clearly appropriate way.

HAYNE J: Does it follow from what you say that if we were to remit the order nisi, that you would be contending that a single judge of the Federal Court was bound in this matter to resolve the order nisi against the applicant?

MR CAVANOUGH: Yes, although one would have to acknowledge that the challenge is now sought to be brought under the heading of "procedural fairness", a ground which was not available in the Federal Court at the time. But, in our respectful submission, that really was a matter of no moment because there was really no inhibition on the way in which the applicant was able to advance his case.

HAYNE J: But there would be no estoppel. Is that what you are telling me?

MR CAVANOUGH: There may be estoppel insofar as the matter was dealt with otherwise than under the heading of "procedural fairness", if you like, and insofar as any particular points are indistinguishable and insofar as the heading makes no difference, if one likes, but if it is essentially the same point, it has already been dealt with, but that I suppose would have to fall for examination. Depending on how the applicant put it - I should say I understand, although it is not apparent from the draft order nisi, the applicant's counsel has told me that in due course it would be intended to seek some amendments, so that may be another matter.

McHUGH J: Anything further?

MR CAVANOUGH: Nothing further, your Honour.

McHUGH J: Yes, we will make orders as requested by Mr Basten.

In matter of P76 of 2002 the special leave application is stood over generally. In matter P77 of 2002 the matter is remitted to the Federal Court on the usual terms.

Anything further?

MR BASTEN: No, thank you, your Honour.

AT 9.45 AM THE MATTERS WERE CONCLUDED