Applicant S163/2003, Ex parte - Re MIMIA & Ors S163/2003 [2003] HCATrans 712 (2 May 2003)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S163 of 2003

In the matter of -

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

First Respondent

THE SECRETARY OF THE REFUGEE REVIEW TRIBUNAL

Second Respondent

THE SECRETARY OF THE DEPARTMENT OF IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Third Respondent

Ex parte -

APPLICANT S163/2003

Applicant/Prosecutor

HEYDON J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 2 MAY 2003, AT 4.35 PM

Copyright in the High Court of Australia

__________________

MR I.G.A. ARCHIBALD: I appear for the applicant, your Honour. (instructed by John Sarroff & Company)

MR A. MARKUS: If your Honour pleases, I appear for the first and third respondents. Your Honour, I should indicate that I also have instructions to appear for the Refugee Review Tribunal. I know that the second respondent is named as the Secretary of the Refugee Review Tribunal. There is no such person, but the Refugee Review Tribunal could be a party and, your Honour, if the Refugee Review Tribunal is to be a party, it would submit and abide by any order of the Court. (instructed by Australian Government Solicitor)

HIS HONOUR: Yes, thank you. Mr Archibald, what order do you want?

MR ARCHIBALD: We seek an injunction restraining the deportation of the applicant and orders to the effect that to the extent that any service on the particular respondents might be required an order for specific service. But, essentially, it is to restrain the deportation.

HIS HONOUR: Yes. I have an affidavit of Mr Sarroff which was filed today on which you rely.

MR ARCHIBALD: Yes.

HIS HONOUR: Do you have any objection to that affidavit?

MR MARKUS: Your Honour, not in view of the nature of - - -

HIS HONOUR: Yes, very well. I also have a draft order nisi. I suppose one question is how long - I mean, you want an injunction but for how long? On one view, nothing in the material before me shows any reason why any order should be made, but let us assume that the purpose of the injunction was simply to enable your client, as it were, to prepare some proper case, to consider whether an order should be made. How long should the injunction last for?

MR ARCHIBALD: A short period.

HIS HONOUR: How short?

MR ARCHIBALD: Seven days.

HIS HONOUR: And have you a form of the injunction?

MR ARCHIBALD: I actually do not yet, your Honour, I am sorry.

HIS HONOUR: Right.

MR ARCHIBALD: I can perhaps inform your Honour of where the matter is at in terms of the deportation.

HIS HONOUR: Well, I understand that your client is to leave Sydney at 6.00 pm tonight and the aircraft will take him to Perth and tomorrow a plane will leave Perth eventually headed for Algeria.

MR ARCHIBALD: Yes, that is my instructions.

HIS HONOUR: I mean, one considerable difficulty is that the Refugee Review Tribunal ruled on this matter in 1999. Justice Emmett ruled on it on 20 December 2001, apparently on the same ground as is now relied on, and it is now 2 May.

MR ARCHIBALD: Yes, your Honour. My knowledge of the matter is somewhat scant and I do not have any detailed - - -

HIS HONOUR: Yes, you came into this an hour or so ago presumably.

MR ARCHIBALD: Yes, and I do not have any particular knowledge of the previous Federal Court proceedings. As I understand it, the ground relied on now is the ground stemming from the Full Court decision of Muin and Lie.

HIS HONOUR: Which was decided I think in August last year and which was relied on before Justice Emmett in proceedings which he dismissed on 20 December last year.

MR ARCHIBALD: I see. I was unaware of that.

HIS HONOUR: Now, urgent interlocutory injunctions are a highly discretionary form of relief.

MR ARCHIBALD: Yes.

HIS HONOUR: Are you able to say precisely how the principles in Muin apply to this case?

MR ARCHIBALD: I will endeavour to do so, your Honour.

HIS HONOUR: You have seen, have you, the Tribunal's decision of 1999?

MR ARCHIBALD: No, I have not.

HIS HONOUR: I do not quite see how you can then because you would have to fit the principles in Muin into that decision somehow or other.

MR ARCHIBALD: Yes. My instructions derive from Mr Sarroff, who is in Court, who has represented the applicant since he arrived in Australia.

HIS HONOUR: Yes. I suppose one question is why no application was made earlier than a few hours before the plane was due to leave Sydney at 6.00 pm.

MR ARCHIBALD: Yes. Mr Sarroff says that he first advised the applicant of the possibility of a Muin application in about November/December of last year and the applicant has essentially sat on that advice until today. There may have been other applications made to the Minister for one of the discretionary forms of relief, but essentially the applicant has had that advice since November/December and - - -

HIS HONOUR: Obviously you do not have to pass on what the advice was, but how does Muin's Case fit into the circumstances of the applicant?

MR ARCHIBALD: Muin's Case, as I understand it, related to the provision by the Secretary of the Department to the Tribunal of all of the necessary documents from the departmental file. Owing to various changes in the way that the Department retained its data - some on paper, some on computers - the Secretary did not transmit all of the appropriate material to the Tribunal, but the applicant during the proceedings was of the opinion that the material was with the Tribunal.

Now, if that is the correct statement of Muin, in this case the applicant had his hearing in September 1999 and he had previous applications lodged with the Department since 1992. In 1992 he had made an application to the Refugee Status Committee and that application had not been determined in 1994 when the applicant lodged a type of overriding application which was a section 816 application based on the applicant's special skills. Then in 1998 the section 816 application was refused and his original application based on his refugee status was reactivated - this is in 1998 - and it was eventually dealt with in 1999.

Now, the case, as I would put it at the moment, is that the solicitor for the applicant who appeared in the 1999 appeal hearing in the Tribunal is not satisfied or confident that all of the previous documents had been transmitted to the Refugee Review Tribunal as it deliberated in that September 1999 proceedings. So essentially the purpose of this injunction is for a short time to enable what inquiries might be able to be made to ascertain whether all of those documents were transmitted to the Tribunal and, hence, to establish, one way or the other, the availability of a Muin application.

HIS HONOUR: Inquiries could have been made between 1999 and August 2002, though no doubt Muin may well have come as original news, but there has been plenty of time since August 2002 until, first, 20 December to make the inquiries and, secondly, between 20 December and now to make the inquiries. Why should the Minister and the Secretary and the Tribunal be disturbed now?

MR ARCHIBALD: Yes, I agree with that, your Honour, that there has been a considerable amount of delay and I have discussed it with my instructing solicitor. He says essentially that the applicant is a Berber. It essentially was the way he was. That is my instructions, that he may not have appreciated the significance. I understand that he had these other applications going and he perhaps tended to rely on them and not appreciate the full possibilities that this type of application might raise.

HIS HONOUR: Yes, I think I might just ask your opponent - what is your attitude to this application for a temporary injunction?

MR MARKUS: Your Honour, the application is opposed. I do not know whether your Honour wishes me to make more detailed submissions at this point.

HIS HONOUR: I think maybe if you make the principal points you wish to make.

MR MARKUS: Yes, thank you. Your Honour has already put a number of matters to my friend, but could I perhaps start with this proposition, your Honour. It seems to me that this being an application for an order nisi, which is, strictly speaking, an ex parte proceeding, the first question that needs to be addressed is whether your Honour on the material which is currently before the Court would grant an order nisi at all. It is only if your Honour would be prepared to grant an order nisi that, in my submission, the making of an order of the character that my friend is seeking today would be appropriate.

HIS HONOUR: I do not wish to be unsympathetic towards your general attitude, but do you say it is beyond the power of the Court to grant a temporary interlocutory injunction for the purpose of getting material together which would justify the grant of an order nisi? I can see why you question, in effect, whether - - -

MR MARKUS: I would question it, your Honour, because, strictly speaking, there is no proceeding until an order nisi is granted. I realise that this is an unusual and perhaps archaic procedure. It is akin to an application for leave, I suppose, to be able to bring the proceeding. Your Honour, there are authorities in the Federal Court where short injunctions have been granted on the basis that an application was to be made or to enable individuals to obtain instructions properly, one or two day injunctions.

I have some difficulty with applying those principles to an order nisi procedure, but even if what I submit is incorrect, your Honour, it seems to me that then discretionary issues arise. If one proceeds on the basis that your Honour does have the power to grant an injunction without having granted the order nisi, this is a very good example of a case where, in my submission, your Honour would not exercise any such power in the applicant's favour.

HIS HONOUR: Point one would be that Mr Sarroff knew about Muin's Case shortly after it was decided presumably and applied to Justice Emmett just before Christmas on the basis of it and nothing more has happened until today. That is one point you make, I presume.

MR MARKUS: That is exactly the point I make. That is, with respect, your Honour - - -

HIS HONOUR: A second point you would make is that there is no explanation for any of those delays.

MR MARKUS: There is absolutely no explanation. The order nisi, of course, would require extension of time as well as anything else, because we are talking about a decision that has been made in 1999. For an order nisi to be granted - - -

HIS HONOUR: You say it needs an extension of time. Are you talking about a statutory provision?

MR MARKUS: Yes, your Honour, in the High Court Rules there is relief - I think an application for prohibition has to be brought within three months. I get a bit confused, your Honour.

HIS HONOUR: Yes, but we will not waste time on it. I am sure you are right.

MR MARKUS: There are provisions imposing time limits. The time limits can be extended but this particular application has been brought outside the relevant time limits. This Court has on a number of occasions refused to entertain applications for order nisi when there was significant delay which was unexplained. Now, in this particular case part of the delay may have been explained because Mr Sarroff refers to a judgment of the Full Court of this Court which was given in August last year. That may offer a measure of explanation for the delay up till that point.

There is no explanation for the delay since that date and there is particularly, your Honour, no explanation for the delay since the judgment of his Honour Justice Emmett. Your Honour, this whole application seems to be totally misconceived in any event. What the applicant ultimately is saying is that they do not know whether the judgment of this Court in Muin and Lie would have any application and that they would like to investigate that possibility.

Now, with respect to my friend, in my submission, that would not be an appropriate exercise of the discretion that your Honour is asked to exercise simply to grant an injunction so that certain inquiries can be made by the applicant/prosecutor about matters which could have been investigated months ago. But, your Honour, this is not a case that obviously falls within the Muin and Lie area in any event.

HIS HONOUR: Well, there is no reason at all to suppose that it does.

MR MARKUS: Exactly, your Honour, but there are reasons why one would presume that it does not.

HIS HONOUR: Right.

MR MARKUS: One of the major reasons for that is that in Muin and Lie the Court dealt with cases which were considered by a delegate of the Secretary pursuant to the provisions of the Act as they existed, if I recall correctly, around 1998/1999. They were significantly different provisions when the application was considered by the Minister or the Minister's delegate back in 1992. I do not have the relevant provisions with me, your Honour, but there have been fundamental changes to the Migration Act in 1994 and the provisions were not just renumbered; the whole Migration Act was put on a totally different basis.

I do not know whether there were directly relevant provisions, for example, requiring the provision of information by the Secretary - well, there certainly would not have been any provisions requiring the provision of documents by the Secretary to the Refugee Review Tribunal because the Refugee Review Tribunal was not in existence in 1992.

HIS HONOUR: What is the relevance of 1992 in view of the fact that the Tribunal decision was actually in 1999? Simply that it commenced in 1992 you mean? Is that the point?

MR MARKUS: Your Honour, what is being suggested here - and I do not have the relevant documents, but what my friend suggests, if I understood him correctly, that following the decision by the Minister's delegate, which I know that the Refugee Review Tribunal itself states in the first paragraph of its decision, the decision was made on 28 April 1993, according to this decision.

Now, the Tribunal goes on to say that on 22 February 1999 the applicant sought review of that decision. That somehow surprises me, your Honour, because there is a time within which such an application can be made.

HIS HONOUR: Yes.

MR MARKUS: But what my friend suggested was that there was a review application originally lodged with the Refugee Status Committee. That is what he stated, if I understood him correctly, and he may well be correct about that and it may be that because of other applications that application was not actively pursued at that time and that following the establishment of the Refugee Review Tribunal the papers were transferred to the Refugee Review Tribunal. There were transitional provisions in the 1994 amending Act which may have enabled that to occur appropriately.

My point is, your Honour, that there were certainly no provisions which would have required the Secretary to provide documents to the Refugee Review Tribunal because we were dealing, at the time when the review application was originally lodged, with a different review body.

Now, as I understand my friend, he also seems to suggest that one would assume that the documents were not forwarded to the Refugee Review Tribunal or that not all the documents were forwarded to the Refugee Review Tribunal. That assumption is a difficult one to accept, your Honour, for a number of reasons. First, it is unclear and there is absolutely no evidence that there were documents other than the file which related to the applicant's application - which at that stage would have been an application for refugee status because protection visa did not exist at the time - needed to be forwarded to anybody.

There is no evidence of the delegate having referred to any independent country information material which, in the format that decisions of delegates were made in 1998/1999, were listed as part of the so-called Part B material. Part B used to list the documents which were before the delegate of the Minister for Immigration and Multicultural and Indigenous Affairs. There is simply no evidence what documents it is suggested were not sent to somebody.

HIS HONOUR: Well, that is true but the point of the injunction is to enable the applicant's advisers to try and work out what documents should have been transferred and ascertain whether or not they were transferred. It seems to me to boil down to a discretionary question, namely, in view of the delay, should the relief be refused?

MR MARKUS: Your Honour, can I just go back one step though because, in my submission, it is not inappropriate for me to address on that issue even though the injunction is raised in this limited context because, your Honour, in Muin and Lie, of course, a number of admissions were made by the Minister for the purposes of trying to determine - I should not say admissions; I should say concessions, factual concessions, for the purpose of trying to have these matters resolved on a basis of legal principle as opposed to having to deal with them on an individual basis.

Some of those concessions involved belief on the part of the individual of certain matters and intention on behalf of the individual to do certain matters if that individual would have known that his belief was misguided. Ultimately the point was one of misrepresentation. Now, in Muin and Lie, for example, there were concessions made about the knowledge of the individual applicants of the terms of section 418(3) of the Migration Act as it stood at the relevant time. There were concessions made that those documents, that is the country information documents, were relevant to the review, which is a very big ask in this case, your Honour, because you are talking about documents that were very old, indeed.

HIS HONOUR: Is this your point: the Tribunal decided against the applicant because it thought that, although the applicant might be found to have evaded military service for many years, there was no real risk of any persecution on a Convention ground if he returned to Algeria now and any non-disclosed documents would have to be material to that question.

MR MARKUS: That is a separate point, your Honour.

HIS HONOUR: That is a separate point.

MR MARKUS: That is a separate point. My point really is that in Muin and Lie the individual plaintiffs in those proceedings asserted a belief that certain documents were sent to the Refugee Review Tribunal and asserted that if they would have known that those documents were not sent to the Refugee Review Tribunal they would have done certain things. Now, there is absolutely no evidence here of this particular applicant's belief about those documents being sent to the Refugee Review Tribunal. There is no evidence that those documents were not sent to the Refugee Review Tribunal. There is no evidence that this person would have done anything differently than what it would have been had he been aware that those documents were, in fact, not sent to the Refugee Review Tribunal.

That is my point. Your Honour's point is a separate point, but in any event, if one examines the terms of the decision of the Refugee Review Tribunal, it is difficult to comprehend how the sort of argument that was successful in Muin and Lie could assist this applicant in view of this particular decision. In my submission, it simply cannot.

HIS HONOUR: Could I ask you this question? When was it decided to send the applicant back to Algeria today and tomorrow? The solicitor for the applicant says he did not know about it until lunchtime today, but was the decision made some time ago and was the applicant told about it some time ago?

MR MARKUS: Your Honour, I do not have specific instruction about when applicants are told. Applicants are aware that once they have exhausted their review procedures, they are liable for removal and there is an obligation upon officers of the Department to remove individuals who are unlawful non-citizens pursuant to section 196, I think it is, your Honour - not so, your Honour, 98 of the Migration Act.

HIS HONOUR: I will just ask Mr Archibald, do you know when your client first learned of the intention to deport, to have him removed today or tomorrow?

MR ARCHIBALD: My understanding, your Honour, is that he was invited to an interview at Villawood, in an office at Villawood at 8 o'clock this morning and without any warning was just removed to a separate section of Villawood and he knew nothing of it. I further understand, your Honour, that there is a departmental guideline, of which I have a copy, which says that:

The removee should be given reasonable notice of their removal arrangements (at least 48 hours before departure) -

Certainly that was not given to this applicant.

HIS HONOUR: Yes. Could I just have a look at the guidelines?

MR ARCHIBALD: Yes, your Honour.

HIS HONOUR: Could you just show it to Mr Markus?

MR MARKUS: Yes, your Honour, I am familiar with it.

MR ARCHIBALD: I understand, your Honour, it is called MSI267.

MR MARKUS: Can I just ask your Honour to read the second half of that page?

HIS HONOUR: I have read 4.1 and I have read 4.2. Which part do you want to stress?

MR MARKUS: Your Honour, I think there is an "unless" bit that I would ask your Honour to read.

HIS HONOUR:

unless there are significant security reasons - - -

MR MARKUS: Yes.

HIS HONOUR: Do you say there are?

MR MARKUS: Your Honour, I do not have any instructions about this particular individual, but what I do know is that individuals are advised generally about their liability for removal. They are given a notice. This individual person to that procedure would have been given a notice. He would not have been given a specific time when he was being removed. Certain individuals who are assessed as posing risk if notice is given of their removal are not actually given the usual 48 hour notice of the actual time of removal.

I can only assume from what my friend has said that this person was assessed as such a risk. I can say to your Honour that there was an attempt to remove this person earlier today which was abandoned because he resisted removal. That was on a normal flight to Perth. My client had now arranged a special charter flight to remove the applicant to Perth at 6 o'clock tonight because he was not considered to be suitable for removal from Sydney to Perth on a commercial flight.

HIS HONOUR: Yes. Thank you, Mr Markus. I need not trouble you further, Mr Archibald.

The Court has had filed with it a draft order nisi seeking relief in the nature of prerogative writs against the respondents. The applicant will, unless the Court intervenes, be flown to Perth at 6.00 pm, the time now being 5.09 pm, with a view to him being flown from Perth to Algeria tomorrow. The history of the matter is that the applicant, a citizen of Algeria, arrived in Australia on 10 June 1988. On 24 February 1992 he lodged an application for a protection visa. On 28 April 1993 a delegate of the Minister refused to grant a protection visa. Nearly six years later, on 22 February 1999, the applicant sought review of that decision.

The Tribunal affirmed the decision not to grant a protection visa on 23 September 1999. The applicant took no steps to challenge that. On 8 August 2002 the Full High Court in Muin v Refugee Review Tribunal [2002] HCA 30; (2002) 190 ALR 601 granted relief in respect of a failure to accord procedural fairness by reason of the non-dispatch of certain documents from the Secretary of the Minister's Department to the Tribunal.

An affidavit of today's date affirmed by John Sarroff, the solicitor for the applicant, in paragraphs 10 and 11 says that the applicant:

received a notice from the Refugee Review Tribunal stating that it had considered his application "on the paper" -

and that the applicant -

believed that the Tribunal had considered all the papers.

That affidavit also stated that the applicant sought to lodge orders pursuant to the decision in Muin's Case.

The applicant - though this is not in evidence, notice may be taken of it - made an application to the Federal Court on 20 December 2002 which was heard by Justice Emmett. According to Justice Emmett's reasons for judgment, paragraph 4, the basis of the claimed relief before him rested on the principles propounded by the High Court in Muin's Case. For reasons which are presently immaterial, Justice Emmett refused relief. The solicitor who represented the applicant before Justice Emmett was the applicant's present solicitor, who was the same person who acted for the applicant in relation to the Tribunal proceedings.

I was told from the Bar table that the first the applicant heard of the decision to remove him was today. That was passed on by counsel for the applicant. The representative of the respondents indicated, again in an unproved form, that there had been difficulties with the applicant today and the plan to remove him on a commercial flight had been abandoned and a chartered flight would take him to Perth at 6.00 pm. It is difficult to conceive a more unsatisfactory background for an application of the present type.

The application actually made is for a short interlocutory injunction for a week to prevent removal. The purpose of the injunction is to enable the applicant to consider his position in relation to Muin's Case and see whether there are documents which have not been transmitted and which, if they have not been transmitted, might found some application for an order nisi and eventually for orders absolute on the basis of the principles in Muin's Case.

If there were time to permit the matter to be fully argued at this stage, even in the absence of evidentiary material, then that time should be permitted to elapse. The difficulty is that it is not possible to have heard very much from counsel for the applicant who, in any event, was briefed only a short time ago. Nor has it been possible to hear the detailed arguments of the representative of the respondents. It is not even clear - and the representative of the respondents advanced this as one of the submissions - that the Court has jurisdiction to grant an interlocutory injunction for the purpose for which this injunction is sought, but that is a problem which the Court will have to, as it were, take in its stride.

The representative of the respondent made a number of very powerful arguments, both of a discretionary character and of a substantive character, why the relief should not be granted. However, because of the difficulty which the Court has in considering those arguments and any competing arguments to the contrary fully, I see no alternative but the grant of the relief now sought.

Now, Mr Archibald, what exactly is contemplated? The High Court of Australia is not peopled by an infinite number of Judges. They are all busy next week. Is your client proposing, or at least are you proposing to come to Canberra some time next week?

MR ARCHIBALD: I can, your Honour.

HIS HONOUR: How long will the application take?

MR ARCHIBALD: I would have thought about three hours, your Honour.

HIS HONOUR: Three hours? Yes.

MR ARCHIBALD: Maybe. It possibly just relates to the applicability of the Muin Case. Perhaps it could be short.

HIS HONOUR: Well, that is the only basis on which you have put it. There is no other possible basis. You have had three years in which to advance any other ground of relief to the Federal Court.

MR ARCHIBALD: Your Honour, I would have to take instructions.

HIS HONOUR: Well, you cannot take them from the applicant obviously.

MR ARCHIBALD: Yes.

HIS HONOUR: And the applicant would not cast any useful light on the question anyway.

MR ARCHIBALD: Yes.

HIS HONOUR: What does your solicitor say about it?

MR ARCHIBALD: He does not believe there are any other grounds, your Honour.

HIS HONOUR: And what steps are you proposing to take between now and when the matter next comes before the Court?

MR ARCHIBALD: Your Honour, firstly, in relation to the implementation of the injunction, I would assume that the respondent would be able to advise the relevant officers of its Department not to take any action. If some form of order were required in relation to service by telephone of the order, then I would seek that that form of order be made.

HIS HONOUR: You just tell me now what order you want.

MR ARCHIBALD: Perhaps if the Registrar of the Court telephoned the compliance section of the respondent to advise of the making of the order. I have a telephone number, your Honour.

HIS HONOUR: The Registrar does not usually serve orders.

MR ARCHIBALD: Yes.

HIS HONOUR: I think that would be for the respondents to do.

MR ARCHIBALD: If the respondent could advise its compliance section of the making of the order.

HIS HONOUR: When you say "its", you mean the Minister, the Secretary or the first respondent?

MR ARCHIBALD: The first respondent.

MR MARKUS: Your Honour, can I just indicate I have just sent a colleague of mine outside with a mobile telephone.

HIS HONOUR: Very well.

MR MARKUS: We will contact the person who is instructing us, who is from the legal section of the Department, to convey the essence of your Honour's - - -

HIS HONOUR: Your short position is this is not a practical problem. Once we get the order sorted out, we need not bother about complicated methods of service.

MR MARKUS: Your Honour, I think the message needs to get through rather than the actual form of the order.

HIS HONOUR: Yes. Well, I think the message is that - - -

MR MARKUS: Your Honour is granting an injunction and - - -

HIS HONOUR: - - - the intent is to grant an injunction for a short time to prevent the deportation of the applicant.

MR MARKUS: The removal, yes.

HIS HONOUR: The removal.

MR MARKUS: Yes, I understood your Honour to that extent and I have asked my colleague to ring those instructing us with that message.

HIS HONOUR: Yes, but, Mr Archibald, what exactly is going to happen? I mean, there is no point in the Court granting injunctions if your side is not able to come up with any useful set of steps in the next few days. If no useful suggestions can be made, I will not grant the injunction.

MR ARCHIBALD: Yes. Your Honour, we would seek to file our substantive application within that time.

HIS HONOUR: But filing it is not much good unless it has a sufficient chance of success to merit the grant of an order nisi.

MR ARCHIBALD: Yes, your Honour.

HIS HONOUR: At the moment there is no chance of success.

MR ARCHIBALD: Your Honour, my instructing solicitor has quite a degree of confidence in relation to success.

HIS HONOUR: Your instructing solicitor's confidence is worth nothing. Your instructing solicitor has wasted three and a half years. What are you going to do between now and, say, next Thursday or Friday?

MR ARCHIBALD: Your Honour, I will file a substantive application together with a detailed affidavit from my instructing solicitor and - - -

HIS HONOUR: Well, what will he know? The documents are not in his possession. How can it usefully say anything?

MR ARCHIBALD: Your Honour, also I would seek to have access to all the relevant files of the Department in order that the appropriate investigation might be made of the Muin contentions.

HIS HONOUR: I do not know that the Minister should be vexed or the Minister's Department should be vexed by so vague a request. Mr Markus, does that formulation that Mr Archibald just propounded trouble you?

MR MARKUS: I do not have copies of any documents at this stage. As I understand the position, the proceedings which were handled by a different firm in December last year - and your Honour is aware of that particular - - -

HIS HONOUR: Yes, they were Blake Dawson Waldron.

MR MARKUS: That is right.

HIS HONOUR: Your firm is?

MR MARKUS: Australian Government Solicitor.

HIS HONOUR: I see.

MR MARKUS: Your Honour, it seems to me that I may be able to obtain copies of the documents in a relatively short period of time but it really depends where those documents are. They may be readily available from the previous solicitors for the Minister or they may be obtained from my client, but I am not really in a position to assure your Honour that I would be in a position - - -

HIS HONOUR: No, I see. They could be in three places presumably. One is the Department, second is the Tribunal and a third is Blake Dawson Waldron.

MR MARKUS: Your Honour, the original file of the Tribunal would be with the Tribunal but there are copies, no doubt, which have been obtained for the purposes of the Federal Court proceedings. So I anticipate that both my client, that is the Minister, or the Department, and Blake Dawson and Waldron would have copies of the original files, including presumably the original application for refugee status back in 1992, or whenever it was made. It is just a question whether those documents have been archived or not.

HIS HONOUR: I think, Mr Markus, the problem is that it is going to be very difficult for the Court to actually hear this application next week. It is not sitting on Monday but it is hearing appeals on the next three days and special leave applications on Friday.

MR MARKUS: I am aware of that.

HIS HONOUR: It might be better if the hearing that Mr Archibald wants should take place either the week after or the week after that.

MR MARKUS: And I accept that, your Honour.

HIS HONOUR: From your client's point of view, your client wanted to have the applicant removed now, but a week or two or three - - -

MR MARKUS: I think there is more concern with the charter flight, your Honour, because that would have been a very expensive exercise.

HIS HONOUR: It may still be expensive.

MR MARKUS: I am simply saying, your Honour, that the actual detention costs which are associated with the continued detention of the applicant are not of such monetary value as to cause any great additional burden to my client.

HIS HONOUR: No. Presumably this is a sort of abstract or academic question, but if the applicant eventually fails, he will be liable for all those costs.

MR MARKUS: In an academic sense, that is correct, yes.

HIS HONOUR: Yes. How many days do you think you will need to get these documentary searches going? I know this is a great imposition on you but it just seems simpler to do it this way rather than have Mr Archibald issue subpoenas and - - -

MR MARKUS: Your Honour, I could not agree more. In my view, the files may be able to be obtained by Monday but I cannot assure your Honour that that is the case. I would be surprised if I could not get them by Tuesday and I think - - -

HIS HONOUR: Let us say we pick Wednesday, 14 May. Would you be appearing yourself or briefing counsel?

MR MARKUS: I am sorry, your Honour.

HIS HONOUR: Would you be appearing yourself or will you be briefing counsel? Pick Wednesday, 14 May as a day on which Mr Archibald can make the application for an order nisi, to the intent that if he failed to get it, that would be that and if he got it - - -

MR MARKUS: Your Honour, I think it depends on my instructions. I personally am available to appear on that day at this stage.

HIS HONOUR: But whether you will be instructed to appear on that day, we do not know yet. Yes, do you have any objection to 14 May being fixed as the date then?

MR MARKUS: No, your Honour.

HIS HONOUR: Is that satisfactory, Mr Archibald?

MR ARCHIBALD: Yes, your Honour.

HIS HONOUR: Well, the form of injunction.

MR ARCHIBALD: My suggestion would be that the first respondent be restrained from deporting the applicant until 5.00 pm on 14 May.

HIS HONOUR: Just one thing. Every time anyone else says "deporting", Mr Markus, you say "removing".

MR MARKUS: It is a removal, your Honour.

HIS HONOUR: You prefer that word?

MR MARKUS: Your Honour, "deportation" has a particular meaning under the Migration Act with reference to section 200. It is criminal deportation, your Honour. I think, your Honour, if I can assist - - -

HIS HONOUR: Yes.

MR MARKUS: - - - the orders should be worded something like, "The first respondent, his officers and agents be restrained from removing the applicant" - and probably it is not appropriate to identify the applicant in this case by name. It is S163 of 2003, your Honour.

HIS HONOUR: From Australia?

MR MARKUS: "From Australia until" - I think my friend suggested "5.00 pm on 14 May 2003 or until further order".

HIS HONOUR: Yes, that seems satisfactory. I do not think I will make any formal orders about the production of documents. I will simply leave it to your officers, Mr Markus, to supply them, but I think perhaps liberty to apply on such notice as in the circumstances is appropriate.

MR MARKUS: Thank you, your Honour.

HIS HONOUR: Is any other order needed? I suppose any further affidavit evidence to be relied on by the applicant to be filed and served on or before 4.00 pm on, say, 12 May - Monday, 12 May, or would you prefer a shorter time, Mr Markus, in case it is necessary for your clients to examine it and reply to it?

MR MARKUS: I always prefer a shorter time, your Honour.

HIS HONOUR: Shall we say 4.00 pm on 9 May? That is next Friday.

MR MARKUS: Yes, your Honour. Yes, I am content with that, your Honour.

HIS HONOUR: I make the following orders:

(1) The first respondent, its officers and agents be restrained from removing the applicant, S163 of 2003, from Australia until 5.00 pm on 14 May 2003 or further order;

(2) Liberty to apply on such notice as in the circumstances is appropriate;

(3) Any further affidavit evidence to be relied on by the applicant is to be filed and served on or before 4.00 pm on 9 May 2003;

(4) Any affidavit evidence of the respondents is to be filed and served on or before 4.00 pm on 13 May 2003;

(5) I adjourn the proceedings to 14 May at 9.30 am in Sydney.

MR MARKUS: Could I ask your Honour to make one additional order certifying for counsel?

HIS HONOUR: Yes. Does that cover your position?

MR MARKUS: I think it does, your Honour.

HIS HONOUR: And to reserve costs?

MR MARKUS: Yes.

HIS HONOUR:

(6) I certify for counsel;

(7) I reserve costs.

But I do want to make it plain to the advisers of the applicant that this is not some funny little case in the Federal Court that will just trickle on for the next year or so. If there is no material justifying the grant of an order nisi before 14 May, my present indication is to refuse the order nisi and refuse to extend the injunction further. The Court will now adjourn.

AT 5.33 PM THE MATTER WAS ADJOURNED

UNTIL WEDNESDAY, 14 MAY 2003