Applicant S96/2003 v MIMIA S96/2003 [2003] HCATrans 754 (21 May 2003)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S96 of 2003

B e t w e e n -

APPLICANT S96/2003

Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

Summons

KIRBY J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON WEDNESDAY, 21 MAY 2003, AT 11.07 AM

Copyright in the High Court of Australia

APPLICANT S96/2003 appeared in person.

MR A. MARKUS: If your Honour pleases, I appear for the Minister. (instructed by Australian Government Solicitor)

HIS HONOUR: You understand that by the Act of Parliament I cannot give you your name. I have to identify you simply as "Applicant S96" and I mean no discourtesy by doing that, but that is what I will have to do. Now, before me today is simply the interlocutory summons. That is correct, is it not?

APPLICANT S96/2003: Yes, it is, your Honour.

HIS HONOUR: And that is, as I understand it, in support of an application for special leave to appeal which is before this Court in respect of which you seek to challenge the correctness of the decision of the Full Court of the Federal Court of Australia of 13 May 2003, is that correct?

APPLICANT S96/2003: 13 March.

HIS HONOUR: 13 March 2003.

APPLICANT S96/2003: Yes, that is correct.

HIS HONOUR: So far you have not had a date for the hearing of that summons, as I understand it, and I also understand that in the normal course it might not even be reached this year, but I gather that it could be possible to give you a date for the hearing of that summons in August. That might be an appropriate way to bring forward the substantive matter so that the Court can hear the substantive matter as quickly as possible. Now, you are seeking some interlocutory orders that I give directions or make orders addressed to the Minister to allow you to work, is that correct?

APPLICANT S96/2003: Yes, that is correct, your Honour.

HIS HONOUR: Now, you are asking me to compel the Minister to give you permission to work, to compel the Minister to give you reliable and sufficient support, to compel the Minister to give you permission to study and to compel the Minister to give you access to basic medical services.

APPLICANT S96/2003: Yes.

HIS HONOUR: That is correct, is it not?

APPLICANT S96/2003: Yes.

HIS HONOUR: Now, I think that, first of all, you would have to show a substantive basis in law for making such orders and, secondly, as a matter of practicality, I think it would be much more likely that a court would consider any relief that might be given to you after you have succeeded in obtaining special leave to appeal, if that is what happens. Do you follow?

APPLICANT S96/2003: Yes.

HIS HONOUR: Because until you got special leave to appeal, you have really still got to jump over one hurdle in order to get into this Court. At the moment you are not even in the Court. You are simply seeking to get your case before the Court. So what do you want me to do today in relation to these orders?

APPLICANT S96/2003: Your Honour, the - - -

HIS HONOUR: The alternative is that we stand over the summons to be heard after the special leave hearing, which would be in August, or that we endeavour to deal with the matter today, even though it would have to be dealt with on the basis that I cannot give you special leave sitting alone and that it would depend upon, to some extent, my trying to estimate whether you are going to get special leave or not from the Court.

APPLICANT S96/2003: Can I say, your Honour, something - - -

HIS HONOUR: I am sorry?

APPLICANT S96/2003: Can I say - - -

HIS HONOUR: Yes.

APPLICANT S96/2003: - - - your Honour, in my situation now since I came to Australia is now six years, almost six years, I have been detained in Villawood for six months. That is from October 1999 to April 2000. Since my release, you know, I am not allowed to work, I am not getting - my situation it does not give me one more day, so it is a matter of humanity. It does not give me one more day.

HIS HONOUR: Yes.

APPLICANT S96/2003: This is Australia. It is a big country. So how can I survive.....you know. That is the problem.

HIS HONOUR: Yes. Well, tell me this: what has happened - you have sought a protection visa, have you?

APPLICANT S96/2003: Yes. I am not sure whether it is protection visa or not, but in the meantime - - -

HIS HONOUR: What has happened about your original application?

APPLICANT S96/2003: There is nothing. I have not got any fair decision, fair go. It is just for - it is a matter of, you know, formality. They knock my - I have a very serious and genuine claim, very strong claim, but - - -

HIS HONOUR: But have you had that claim heard by the Minister or by the Minister's delegate or by the Refugee Tribunal?

APPLICANT S96/2003: It has been heard actually - at the beginning it was before DIMA but the delegate of the Minister, she makes a decision without any statement, in the absence of, you know - because of my solicitor's fault. She made a decision without any statement.....

HIS HONOUR: Yes. Well, you then have a right to apply to the Refugee Review Tribunal.

APPLICANT S96/2003: Yes, but, your Honour, there is no difference between DIMA and RRT. This is one of my claims, because there is no difference. As far as my understanding concerned, I have a lot of evidence - - -

HIS HONOUR: Yes, but answer me this: have you, in fact, made an application for review to the Refugee Review Tribunal?

APPLICANT S96/2003: Yes, I made it and that - - -

HIS HONOUR: Has that been heard or not?

APPLICANT S96/2003: It has been heard in the member of the Tribunal affirming the Department decision.

HIS HONOUR: Has it been decided or not?

APPLICANT S96/2003: Yes, it was decided a long time ago. Now I am - - -

HIS HONOUR: When was that decided?

APPLICANT S96/2003: It was in May 1999.

HIS HONOUR: And what was the decision?

APPLICANT S96/2003: Just affirming the Department.....refused my - you know, refused it.

HIS HONOUR: Now, what have you done in relation to that? Have you sought an order for review from the Federal Court?

APPLICANT S96/2003: Yes, I sought the Federal Court. I filed and I withdrew it because I was not having a lawyer, a solicitor. So I wrote a letter for her Honour Justice Tamberlin in the Federal Court and I withdrew by mistake, so withdrew. It was not heard. Then I was waiting and about the same time, simultaneously I filed an order for review and I sent a letter to the Minister. So I thought it is similar case so I withdrew from the Federal Court. Then, while waiting for this decision from the Minister, they send me - the Department of Immigration, Mr.....they sent me a letter to visit their office.

The next day I went in the.....office and just said, "Tell me." Just, you know, I were working 21 day continuously. I gave all clothes for washing and I say it is better to go Department because it is later. Then they detain me just six months and then I was released. But when I was in detention centre I tried to, you know, reopen my case and the Federal Court is a Full Court. Even I have been in front of you - the Full Court in August before Justice Gaudron before you, I have been here. So at that time also I was.....because throughout my - - -

HIS HONOUR: Now, can I just interrupt you. I am not entirely understanding everything you say. You speak pretty good English but I am not understanding it. It might be efficient if I ask Mr Markus to just tell me where the case is in the schedule. You listen carefully to him, make a note and if you want to correct anything he says, then you can do that. I will at least then understand where you stand in respect of your substantive migration status and then also in respect of the other application that you have before this Court. So will you listen to what Mr Markus has to say and then you can come back to tell me what you story is?

APPLICANT S96/2003: Okay.

HIS HONOUR: Very well. Just sit down and have a glass of water and relax. Nothing terrible is going to happen to you here today from this Court.

MR MARKUS: Thank you, your Honour.

HIS HONOUR: Now, Mr Markus, where are we in the substantive - did you put in any written submissions in respect of this application, or not?

MR MARKUS: I did not, your Honour, not in relation to the summons.

HIS HONOUR: I do have some written submissions in relation to the special leave application.

MR MARKUS: That summary of argument.

HIS HONOUR: That is the only written submission you have put in?

MR MARKUS: Yes, your Honour.

HIS HONOUR: You heard what I said in relation to the possible expedition of the hearing of the application for special leave. I take it the Minister would have no objection to my ordering that?

MR MARKUS: We would encourage your Honour ordering that.

HIS HONOUR: You would support that.

MR MARKUS: Yes.

HIS HONOUR: Yes, very well. That is what I provisionally intend to do. Now, could you just tell me when did the applicant - you see I do not have a chronology and that is usually helpful in these things.

MR MARKUS: Yes. I am sorry, your Honour. Could I perhaps refer your Honour to the applicant's summary of argument which actually summarises some of the factual background by giving dates.

HIS HONOUR: This is this document here?

MR MARKUS: No, I am sorry, your Honour. This is a document that was filed on 11 April in support of the special leave application and page 2, Part II of the applicant's summary of argument goes in to some detail about the history of his application for a protection visa, in particular - - -

HIS HONOUR: Well, I am not sure that I have this document.

MR MARKUS: I am sorry, your Honour.

HIS HONOUR: I have a list of authorities and other materials that he is relying on. I do have two written submissions of the applicant. One is called "APPLICANT'S WRITTEN SUBMISSIONS TO SUPPORT SUMMONS". That is filed 16 May 2003. The other is "Reply to the Respondent's Summary of Argument". That is filed 6 May 2003. Now, are either of those the documents you are referring to?

MR MARKUS: No, your Honour. I understood that your Honour had access to the whole special leave application file, but perhaps the easiest way of - - -

HIS HONOUR: I do have a further document called "Applicant's Summary of Argument" and it has "Factual Background". Is that what you - - -

MR MARKUS: That is the document I was referring to.

HIS HONOUR: Very well. I have that now. So the applicant arrived in Australia on 6 July 1997, is that correct?

MR MARKUS: That is correct, your Honour.

HIS HONOUR: He lodged his application immediately. On 21 May 1998 the delegate refused. Was he in immigration detention during that time, do you know?

MR MARKUS: No, your Honour, he was not.

HIS HONOUR: And on 12 May 1999 the Refugee Review Tribunal affirmed the delegate's decision.

MR MARKUS: That is correct, your Honour.

HIS HONOUR: Now, on 1 June 1999 he filed an application to the Federal Court for judicial review and then he went to apply to the Minister on 11 June 1999 to exercise his powers under section 417. They allow the Minister, as I recall it, to make exceptional orders in particular cases for persons to allow them to stay in Australia or to have a second application, is that correct?

MR MARKUS: Section 417 enables the Minister to substitute his own decision for that of the Refugee Review Tribunal and he is not bound by the criteria that are otherwise in force pursuant to the Act and regulations.

HIS HONOUR: I see. So on 9 August 1999, whilst that was pending, he filed a notice of discontinuance - - -

MR MARKUS: Yes, your Honour.

HIS HONOUR: - - - of the application for review to the Federal Court.

MR MARKUS: That is correct, your Honour.

HIS HONOUR: He received a letter from the intervention unit on 18 October 1999. This advised him to contact the nearest immigration office. He went to the immigration office and then was detained apparently and he spent six months in a detention centre. He was then released from immigration detention on 19 April 2000.

MR MARKUS: Yes, your Honour.

HIS HONOUR: Did he ever renew an application for review in the Federal Court or not?

MR MARKUS: Well, if I can explain it this way, your Honour. The applicant sought to have the discontinuance set aside, as it were, and he failed to do so before - - -

HIS HONOUR: Is this because of some time problem that he otherwise would face in the Federal Court, was it?

MR MARKUS: No, it was simply - if I recall correctly, it was actually consent orders that were filed as opposed - - -

HIS HONOUR: It was what?

MR MARKUS: It was consent orders that were filed as opposed to a notice of discontinuance, but he sought under Order 35 rule 7 of the Federal Court Rules, if I recall correctly, to have those orders vacated. He was unsuccessful in doing so before a single judge of the Federal Court, before the Full Court of the Federal Court. He then applied for special leave to appeal from the judgment of the Full Court of the Federal Court and - - -

HIS HONOUR: From the single judge?

MR MARKUS: From the Full Court of the Federal Court.

HIS HONOUR: So he was unsuccessful before a single judge. He then sought leave to appeal to the Full Court.

MR MARKUS: That is correct.

HIS HONOUR: And that was refused, I assume.

MR MARKUS: That was refused.

HIS HONOUR: Why did he not file a completely fresh application? Is there a time limit under the Act?

MR MARKUS: There is a time limit under the Act, yes, which certainly at the time could not be extended. He then sought special leave to appeal from the Full Court's judgment and I think, as the applicant has already indicated, appeared before her Honour Justice Gaudron and yourself and special leave was refused.

HIS HONOUR: When was that? Do you have the date?

MR MARKUS: I am sorry, your Honour, I - - -

APPLICANT S96/2003: Can I answer that?

MR MARKUS: Yes, sure.

APPLICANT S96/2003: 8 August 2000.

HIS HONOUR: 8 August 2000.

APPLICANT S96/2003: Yes.

MR MARKUS: Your Honour, whilst the applicant was in detention, he joined a class action which was then pending in this Court and that was the Lie class action and on the basis of - - -

HIS HONOUR: Was that after 8 August 2000?

MR MARKUS: Your Honour, it would have been before 8 August 2000 because it was on that basis that he was in fact released from detention. He was granted a bridging visa E and released from detention on 19 April 2000. So I presume that it would have been around that time, although I do not have the exact date, when he was joined to that proceeding.

HIS HONOUR: Yes.

MR MARKUS: Now, your Honour, that proceeding, pursuant to orders made by Justice Gaudron I think on 25 November but I am not absolutely certain of the date last year, is still pending in this Court but subject to a summons which is due to be heard this Friday. That proceeding will come to an end as at 30 May - at the end of 30 May this year.

HIS HONOUR: Yes. Has the applicant commenced any proceedings for constitutional relief in this Court under section 75(v) of the Constitution?

MR MARKUS: No, not as far as I am aware. That is what is anticipated would happen in relation to represented parties in the Lie action who wish to further challenge the decision of the RRT relating to them. I have not at this stage been made aware of any application having been so lodged by this applicant.

HIS HONOUR: I see. So meanwhile the applicant sought the relief in the Federal Court that led to the administrative order by Justice Emmett.

MR MARKUS: Well, the order was not in fact made by Justice Emmett. There was a direction made by Justice Emmett but it was the Registrar who actually - - -

HIS HONOUR: That is right. Now, the Registrar made his direction or judgment or whatever it was - - -

MR MARKUS: Well, it is in effect an administrative decision not to accept certain documents that the applicant sought to file. As is permitted under the relevant Rules of the Federal Court, the Registrar sought a direction from a judge of the court whether to accept the documents that the applicant sought to file. Justice Emmett made a direction which was an administrative direction pursuant to the relevant Rules and acting consistently with that direction the Registrar then refused to accept the documents that the applicant sought to file.

HIS HONOUR: Now, what were those documents? Where are they?

MR MARKUS: I do not know whether your Honour has a copy of them. I do have one here that I could hand up to your Honour.

HIS HONOUR: Yes. Show it to the applicant first.

MR MARKUS: Yes, of course, your Honour. I am just giving you a copy. Your Honour, what I am handing up is a coversheet which is, in effect, the evidence of the direction given by Justice Emmett.

HIS HONOUR: Yes, I have that. I have the document that you have just handed up. That is in the file.

MR MARKUS: I see, your Honour.

HIS HONOUR: But I do not have the application, and that is annexed to the document you have handed up.

MR MARKUS: Yes, that is the application, your Honour.

HIS HONOUR: Yes. Does the applicant have any objection to the receipt by me of this document? You do not have any objection to my looking at this document?

APPLICANT S96/2003: No, no objection. I already filed that.

HIS HONOUR: Yes, very well.

MR MARKUS: Your Honour, there was an affidavit that was sought to be filed with it. I did not take an extra copy of that, but that is the application.

HIS HONOUR: So, in effect, this was also seeking an order of some kind for a work permit or some relief from the Court directed to the Minister so that the applicant might work and study and so on?

MR MARKUS: Well, I think the document speaks for itself. I had better not try to summarise it. I mean, in my submission, it is quite a misconceived document. Putting that to one side, it seeks the orders in the terms set out in the application.

HIS HONOUR: I am sure you are aware of the catch-22 situation that a person who is in the country who is not permitted to work, therefore, cannot get a lawyer to give advice, is then in a position of disadvantage in formulating whatever applications he or she wishes to make to a court.

MR MARKUS: Your Honour, I am but perhaps could I just make a few points for the applicant's benefit more than your Honour's benefit in a sense. The difficulty that the applicant faces in a sense is that what he is seeking to appeal from is a judgment of the Full Court which is very limited in its scope. The judgment of the Full Court, in effect, simply held that the sort of direction that Justice Emmett gave was not an order or judgment from which an appeal did lie - - -

HIS HONOUR: Yes, I have read the Full Court's decision.

MR MARKUS: Thank you, your Honour. Now, even if the applicant would be successful in his special leave application and ultimately on appeal, the only thing that would happen at that point is that the matter would be remitted to the Federal Court, so he would not get the sort of relief he is seeking - well, in my submission, he would not get the sort of relief he is - - -

HIS HONOUR: Well, he is a couple of steps removed from getting that relief. What he has to do is to get special leave to appeal from this Court directed to the Full Court, get an order from this Court giving him special leave, have an appeal in this Court which upholds his appeal and sets aside the orders of the Full Court, sends the matters back to the Full Court directing the Full Court of the Federal Court to redetermine the matter. The best he could then hope for is that the Full Court holds that the decision of the judge is an appealable judgment and grants leave to appeal from that judgment, sets aside the judgment, which would be the direction of Justice Emmett, and thereby, in effect, requires that the document be received by the Federal Court.

MR MARKUS: Yes, your Honour. Then he would need to succeed on the argument that he ultimately is trying to run. It is, with respect to the applicant - and I am fully aware that he is not having the benefit of any legal advice and assistance, although at various stages of the process he did have the assistance pursuant to Order 80 of the Federal Court Rules of counsel's advice.

HIS HONOUR: Somebody represented him in the Federal Court - - -

MR MARKUS: Yes, your Honour.

HIS HONOUR: - - - before the Full Court, is that correct?

MR MARKUS: Yes, your Honour. I am, of course, not privy of what discussions have taken place between the applicant and the pro bono counsel appointed pursuant to Order 80 but it does seem to me that if the applicant had a point - and I do say he does not for very clear and obvious reasons under the legislation - but if he did have a point, he would be much better off simply putting an application which properly identifies the relief that he seeks and starts in the Federal Court again as opposed to going through very expensive litigation to get to the same point with a document that even on the most beneficial construction is fundamentally misconceived.

HIS HONOUR: Well, the relief that the applicant seeks is pretty clear, and that is the relief he seeks now in the summons that he has filed in this Court.

MR MARKUS: Well, if I can respond to that, your Honour. I do not know whether it is pretty clear. Even if it is - - -

HIS HONOUR: I mean, whether he is entitled to it or not is not clear, but what he asks for - - -

MR MARKUS: Well, your Honour, to be treated by the Australian Government humanely is not a very clear relief.

HIS HONOUR: I am looking at a summons that I have before me which is to compel the Minister to give me permission to work - that is very clear - - -

MR MARKUS: Yes, your Honour.

HIS HONOUR: - - - to compel the Minister to give me reliable and sufficient support - that is clear enough; that presumably would be social security benefits of some kind - - -

MR MARKUS: Well, I am not sure what it means, your Honour.

HIS HONOUR: Well, that could be clarified - to compel the Minister to give permission to study - presumably there is a visa that permits study visas - to compel the Minister to give me access to basic medical services - well, I do not know what that means.

MR MARKUS: Your Honour, the difficulty is the applicant is not challenging any decision. He asserts a right to have the benefits that he is seeking and, with respect to him, there are fundamental difficulties with doing that. I mean, there are certainly obvious difficulties in him being able to obtain a work permit because of the nature of the bridging visa that he holds. It is mandated by the Regulations that he is not entitled to a work permit.

As far as study assistance or permission to study is concerned, he really has to demonstrate that he is about to enrol in a particular course of study and he is in a position to be accepted, as it were, for that particular course of study. If he does that, then that sort of an application can be considered under the Regulations and in appropriate cases permission can be granted. But the difficulty, your Honour, is that he has never done those things and he is asserting a right in circumstances where he may have a right to apply, for example, for permission to study but - - -

HIS HONOUR: Did his application to the Minister that he made - he made an application to the Minister, as I was told - - -

MR MARKUS: Back in 2000, your Honour, if I understand correctly.

HIS HONOUR: Yes, before he discontinued his Federal Court proceedings. This was in June 1999 he applied to the Minister.

MR MARKUS: That was section 417.

HIS HONOUR: Now, was that for the purpose of having a visa to permit him to work or to permit him to study, or not?

MR MARKUS: Well, if the Minister would have exercised his power, which is a non-compellable discretionary power, to grant him a visa under section 417 of the Migration Act 1958 , he would have had a protection visa granted to him. That is a permanent visa and, on my understanding, if at the time the Minister would have so exercised his power, that sort of visa would not have had the sort of conditions imposed on it, that is the no work, no study conditions, that his current bridging visa has.

HIS HONOUR: Which is the regulation that forbids a person with a bridging visa from engaging in work or study?

MR MARKUS: Your Honour, perhaps I could hand up to your Honour - I will give the applicant a copy of this, but I apologise, your Honour, this is an unofficial version of schedule 2 to the Migration Regulations and perhaps I can explain the position in this way, your Honour. As I indicated earlier, the applicant was released in April 2000 following him having been joined as a represented party to the Lie class action. Now, the visa therefore that he was given was a subclass 050 bridging general visa. Could I first refer your Honour to page 26 of schedule 2 to the Migration Regulations where the relevant criteria for the bridging visa commence?

If I could then ask your Honour to go to page 27, which is the following page and look at paragraph (4)(a) which relevantly provides that:

An applicant meets the requirements of this subclause if:

(a) the applicant has applied for judicial review of a decision in relation to a substantive visa, other than a decision to refuse to grant a visa - - -

HIS HONOUR: Does that apply to the applicant at present or not?

MR MARKUS: It does because the Lie class action was still on foot. If your Honour then goes to - I am sorry, your Honour, I am not sure I am doing this right. I should have asked your Honour to look at page 28 together with page 27 and in particular sub-regulation (4A)(b) which provides that:

For the purposes of subclauses (3A) and (4), the applicant is taken to have applied for judicial review if the applicant -

relevantly:

(b) is a person on whose behalf or for whose benefit a person sues under Order 16 Rule 12 of the High Court Rules.

HIS HONOUR: Yes.

MR MARKUS: So that is the basis upon which the applicant has satisfied the relevant criteria to be granted a bridging visa. If your Honour then goes - - -

HIS HONOUR: Yes. Now, where is the provision that says that if he has a bridging visa he is not permitted to work and the Minister has no discretion to - - -

MR MARKUS: If your Honour goes to page 40 of the Regulations, regulation 050.612A provides that:

This clause applies to a visa that is granted to an applicant . . . who:

(a) meets the requirements of 1 or more of the following - - -

HIS HONOUR: Now, I am on page 40. Which paragraph should I be looking at?

MR MARKUS: Paragraph 050.612A in the middle of the page.

HIS HONOUR: Yes, I have that.

MR MARKUS: Paragraph (1)(a)(iii), which refers back to paragraph 050.212(4)(a). Then if your Honour goes to sub-regulation (2), it states, "Condition 8101 must be imposed." That is the relevant regulation which requires the imposition of a condition which is the no work condition, your Honour.

HIS HONOUR: Does it contain a not study condition, do you know?

MR MARKUS: No. The not study condition is a separate condition, your Honour. I think that is explained in the letter that is annexed to the applicant's affidavit filed in support of the summons. Your Honour, that affidavit was filed on 30 April.

HIS HONOUR: Yes, I have that.

MR MARKUS: The first page after the body of the affidavit identifies on the bottom the conditions that were imposed on the visa that was granted to the applicant. Condition 8101 is the no work condition. Condition 8201 is a condition which limits any study or training that the applicant may undertake to three months. It is a limited no study condition, your Honour. There are conditions which do not allow study at all. The other conditions are 8505 and 8506, but they are not relevant to the matter currently before the Court.

HIS HONOUR: Could you explain to me what the rule-maker had in mind would be the basis upon which a person receiving the benefit of a bridging visa but forbidden from engaging in work and who was in the position of an applicant for a protection visa would use to sustain himself or herself?

MR MARKUS: Your Honour, I am not quite sure that I am in a position to do that, but there are - I mean, this is a question of government policy which is reflected by this regulation, which is a disallowable instrument.

HIS HONOUR: It may give rise to a question as to whether the regulation is valid though.

MR MARKUS: Your Honour, if that is the challenge that is sought to be made, then - - -

HIS HONOUR: I do not know.

MR MARKUS: - - - that may be an issue that could be litigated, but that is not the way that the application is brought. Certainly this is an interlocutory application and if there is a challenge to the validity of the regulations, then your Honour would, in the context of an interlocutory application, act on the basis that the regulation was valid consistently with fairly well-known principles.

HIS HONOUR: Yes. Where does that leave us?

MR MARKUS: Your Honour, it is my submission that your Honour having suggested that the special leave application ought to be expedited and fixed at the earliest possible date, such an order should be made. I am in a position to indicate to your Honour that my client is prepared to assist the Court with the preparation of the application books - the Court and the applicant in that way. We certainly support your Honour's approach in that respect.

Having said that, your Honour, I do have some concerns about the applicant proceeding in this way simply because of the number of steps he needs to go through before he is in a position which he is in, in any event, because he can file a competent application at any stage in any court of his choosing and this really seems to be - - -

HIS HONOUR: You say it is a very indirect way to come at the substantive question that he wishes to ultimately get at.

MR MARKUS: That is basically my concern, your Honour. He basically needs four or five proceedings before he ever gets to ask the question and he needs to succeed along the way on every hurdle. Your Honour, if what he wishes to do is assert that some regulation is invalid, he could do that. I am not quite sure, your Honour, whether there is much prospect of that application, but if that is what he wants to do, he can do that, but he needs to put that application in a form that would not be regarded as an abuse of process. Now, he may need some legal assistance. I am certainly not able to provide him with that, your Honour.

HIS HONOUR: Yes.

MR MARKUS: But, of course, the other matter that is of concern, your Honour, that the applicant has limited time to commence his proceeding as envisaged by the order of Justice Gaudron pursuant to section 75(v) and - - -

HIS HONOUR: Where do I find that order?

MR MARKUS: Your Honour, that is in the Lie proceeding so it would not be on a file.

HIS HONOUR: What did Justice Gaudron order?

MR MARKUS: Your Honour, Justice Gaudron made a range of orders in relation to the Muin and Lie proceedings but the effect of her Honour's orders were that each of those proceedings comes to an end as of the end of 30 May. I should just say that there are summonses issued in both of those matters which are listed before this Court this Friday - - -

HIS HONOUR: Yes, you mentioned that.

MR MARKUS: - - - seeking an extension of that time. Now, in the meantime - - -

HIS HONOUR: That summons is brought on behalf of the class applicants?

MR MARKUS: That is correct, your Honour, or some of those applicants.

HIS HONOUR: I do not know this, but I thought that her Honour had remitted certain of those proceedings to the Federal Court following the decision in the case that raised the issue of the privative provisions of the new Migration Act.

MR MARKUS: Your Honour, they were proceedings which sought to raise similar issues to the proceedings in Muin and Lie but those were proceedings that were commenced under section 75(v). Muin and Lie, of course, were writ of summons proceedings where questions were stated to the Full Court and the Full Court provided certain answers and then in relation to certain individuals consent orders were made after the filing of applications under section 75(v), but there is a large number of group members who remain, as it were, represented parties until that proceeding comes to an end.

Now, when I say that there is a time limit, your Honour, I am not trying to imply that it would not be possible for this applicant or any other person, whether represented in those proceedings or not, to commence proceedings in this Court. I am simply saying that the benefit of those orders which were made by Justice Gaudron would apply to individuals who have commenced their own section 75(v) proceedings prior to 1 June this year, subject to any further order.

HIS HONOUR: The applicant has not commenced any such proceedings?

MR MARKUS: Your Honour, I do not believe that he has but I cannot say that for certain because - - -

HIS HONOUR: Yes. I have now been handed by the Registrar copies of orders made by Justice Gaudron of 25 November 2002 in the matter of Muin v Refugee Review Tribunal and Others and Lie v Refugee Review Tribunal and Others. So I have those before me.

MR MARKUS: Thank you, your Honour.

HIS HONOUR: Yes. Well, I think you have explained where the position lies at the moment, at least so far as you understand it, so I will go back to the applicant and see what he has to say. Is there anything that Mr Markus has just said that you disagree with or wish to correct?

APPLICANT S96/2003: Yes, just one - there is some point because to make it so to clarify the situation. So the first thing is regarding the pro bono. In front of Federal Court Justice Gyles, you know, directed for pro bono, but as I explained.....on my summary of argument page 3 - page 4 paragraph 21 it is on my - - -

HIS HONOUR: Which document is this? There are a number of documents that - - -

APPLICANT S96/2003: Applicant's summary of argument.

HIS HONOUR: Just a moment. Yes, I have that document. Page?

APPLICANT S96/2003: Page 4, paragraph 21.

HIS HONOUR: Paragraph 21, yes, I have that.

APPLICANT S96/2003: So there was a problem with pro bono.

HIS HONOUR: Yes, I have read that.

APPLICANT S96/2003: Paragraph 22 also is the same thing about.

HIS HONOUR: Yes.

APPLICANT S96/2003: Your Honour, from time to time I was not able to get genuine assistance, genuine help. I needed - I am not proficient - I am a medical professional. The legal profession is not my field. I am ignorant. But professional people they were not - no, I do not know why. They were not able even - it is very difficult from time to time. That is why - that is why I brought this case by myself.

The second thing, you know, I respect the court procedures and rules extremely but my question - my.....is very simple and even this honourable Court can look at this case afresh because this is simple, being released from detention. How a person cannot survive in this country? My question is, how a person can survive without working - without getting income? How - how can I survive? And because of these three years - three years without work, without support, just going from charity to other charity and charity they are not.....these days they are closing their door, and three years it is immoral for my dignity because I am professional. I am a radiographer in nuclear medicine.

It is very, very, very punishing to go and to ask at this age just to get $50, have to go one week, something like - that is my agreement. Because this country, this Court I believe.....they released me. It is because I am inside this country. How can I survive? Not only me - - -

HIS HONOUR: I understand all that.

APPLICANT S96/2003: Yes, that is my argument, your Honour.

HIS HONOUR: Of course I understand what you are saying. I would not be a human being if I did not understand what you are saying. However, I am a judge of the law and the law of this country made apparently under an Act of the Parliament of this country provides that in the case of a bridging visa you must not engage in work and that is not discretionary. It cannot be waived. If it is valid, it simply forbids you, whilst you are in this country under a bridging visa, from performing work. Presumably, I can only infer, such a provision was made in the Regulations to discourage people from being the recipients of bridging visas and to encourage people who are the recipients of bridging visas to leave this country. But that is what the regulation-making power has been used to provide.

MR MARKUS: Your Honour, can I just correct - - -

HIS HONOUR: No. You will get your time in due course.

APPLICANT S96/2003: Your Honour, I understand. It is absolutely right what you said, but this Parliament, they are putting so many regulations. That is why I came here seeking the justice because there was a similar case in the British High Court. .....because everywhere what - they put all these rules and regulations. But us human being. How a person can survive - it is not logical because - - -

HIS HONOUR: You did receive, I think I read, some social security payments. Is that correct or not?

APPLICANT S96/2003: I did - - -

HIS HONOUR: Did you receive any government payment?

APPLICANT S96/2003: Nothing, nothing.

HIS HONOUR: So you have been living in charities like the Catholic charity - - -

APPLICANT S96/2003: Yes, charity, yes.

HIS HONOUR: - - - that you mentioned, Colombian Mission Institute, until they throw you out.

APPLICANT S96/2003: Yes, but from time to time they ask me to leave but nowhere to go.

HIS HONOUR: Are you still with them or not?

APPLICANT S96/2003: Yes, I am still with them. But, you see, your Honour, if someone asks you to leave and stay in the same.....already told me to leave but nowhere to go. That is the punishment for me to stay - - -

HIS HONOUR: I understand all this, but I am a judge.

APPLICANT S96/2003: Yes.

HIS HONOUR: I have to enforce the law.

APPLICANT S96/2003: Yes.

HIS HONOUR: It is not for me to wave a magic wand to fix up your problems. I am afraid I do not have that power. The matters that you are putting to me are matters that, at least arguably, you have to put to politicians, not to a court. A court simply applies the law and if under the law you are here on a bridging visa and if under the bridging visa, as it was stated in the letter to you, you are not permitted to work, then that is not something which, if that is a valid regulation, I can do anything about.

APPLICANT S96/2003: Your Honour, section - - -

HIS HONOUR: That is part of the law that I have to enforce.

APPLICANT S96/2003: Can I say something, sir?

HIS HONOUR: Yes.

APPLICANT S96/2003: You see the Migration Regulations 1994, it is one of these authorities, the second one, No 2 on my authorities.

HIS HONOUR: Which one?

APPLICANT S96/2003: Authorities No 2.

HIS HONOUR: Yes.

APPLICANT S96/2003: No 2, the Migration Regulations.

HIS HONOUR: Yes, I have that. That is in your bundle of - - -

APPLICANT S96/2003: Yes. So this migration says if there is "a compelling need to work" the respondent, the Minister, has a power to give me - you know, it is in.....It says:

For the purposes of these Regulations, a non-citizen has compelling to work if and only if:

(a) he or she is in a financial hardship -

So there is a chance of the respondent or the Minister considered - - -

HIS HONOUR: Yes, but that is merely a definition. That does not give - that must relate to some other regulation where there is a reference to a non-citizen having a compelling need to work. It does not grant a power to override the regulation which specifically applies to the particular case of a person with a bridging visa like you. In that case, the regulations have a very particular provision. Condition 8101 must be applied and 8101 is a condition, as I am informed, that prevents you from performing work.

APPLICANT S96/2003: Yes, but that Parliament they put all these regulations just as a deterrent, so how a human being kept like this - - -

HIS HONOUR: These are matters you have to put to politicians, not to a judge. A judge has to enforce the law that is made by Parliament or made under the authority of Parliament. A judge cannot ignore the law if it is a valid law.

APPLICANT S96/2003: Your Honour, there is also - it is another similar case. It is from England and Wales High Court. It is a similar situation because - - -

HIS HONOUR: They may not have the same regulation as we have.

APPLICANT S96/2003: But this is, your Honour - - -

HIS HONOUR: This is a very particular and express regulation. That seems to be the impediment in your case. I have read Dr Brendan Nelson's letter to the Minister for Immigration and Multicultural Ethnic Affairs and he seemed to indicate that the Minister should inform him - there may be something politicians and Ministers can do between themselves. The Minister has powers under the Act, under section 417 of the Act, but I cannot direct him to exercise those powers and I cannot exercise those powers for him. Parliament has given those powers to the Minister, not to a judge.

APPLICANT S96/2003: So, your Honour, it is very difficult for me to survive, so if this Court, you know, says, you know, that is why because I believe the Court can direct the Parliament because the High Court - - -

HIS HONOUR: It can direct the Minister but only if there is a legal basis to do so and the impediment that the Minister puts in your path is the Migration Regulations apparently made under the Migration Act which have very specific provisions in respect of people who are in Australia on a bridging visa, and you are one such person.

APPLICANT S96/2003: Yes, it is true but for Muin, so I do not know how the respondent is expecting me to survive without work, you know, three years because of being unable to do anything. I have faced so many social problems. There is nothing - - -

HIS HONOUR: The only thing that I can do that goes some way towards clarifying your legal status is to try to bring forward your application to the High Court, and I am prepared to do that, as I indicated at the outset. I have asked the Registrar and she has informed me that there is one slot in the High Court's list in August and that would at least have the advantage of bringing your case on. But I have to tell you that there are so many hypotheses in your application: you have to get special leave from us, that special leave has to direct the Full Court to reconsider its decision, that then has to lead to an order to the judge at first instance.

The problem is that all of these are procedural matters that the High Court of Australia very rarely becomes involved in and what the Minister's representative has said today is that a reason why the High Court would specially not get involved is that you might have a right under the Constitution or otherwise simply to proceed directly to this Court and seek whatever relief you are seeking. The Court has an appellate jurisdiction, which is what you are seeking to invoke, but it also has an original jurisdiction where the person you are seeking relief against is the Commonwealth or an officer of the Commonwealth, and the Minister is an officer of the Commonwealth.

In some cases, therefore, you can come straight to us, but you would have to establish a legal basis for doing so. The problem that is put in your path is the specific provision which attaches to a bridging visa which is made by a regulation. The only possible way that you could succeed would be to show in some way that that regulation is invalid, as being outside the power that was granted to whoever made the regulation because it contains provisions which are inconsistent with the power.

Unfortunately these are very complicated questions and just as I would not be able to do your work, I cannot advise you as a judge, but it is very difficult for you to do the work of a lawyer. It is just a different skill, especially in a different country, in a different language and in a different judicial and legal tradition. In your own country the judge would do a lot of the work for you, but that is not the way it works in common law countries.

APPLICANT S96/2003: Your Honour, I mentioned somewhere in my argument - I am not sure whether it is - I was, you know, seeking, you know, this High Court to see this application as a new application. I mentioned either to give me special leave or to see my case as anew because the High Court - but I do not know where it is I have mentioned it. So I am not sure where it is. But for me, as you said, it is very complicated for me.

HIS HONOUR: It certainly is. It is very complicated for me - for me too.

APPLICANT S96/2003: And the other point, for example, my previous employer, the one that employed me, you know, they already gave me a letter.

HIS HONOUR: I read that and I read that in the letter from Dr Nelson to the Minister.

APPLICANT S96/2003: No, this is different one. Your Honour, give this one?

HIS HONOUR: Yes, but, Mr Applicant, I have no power to direct the Minister and the Minister himself, if the regulation is valid, is bound by the regulation. It says he must not give you a permit to work, that that is a condition of the bridging visa.

APPLICANT S96/2003: Yes, it is - - -

HIS HONOUR: The Minister also has to comply with the law and if the Parliament has given the power to make the regulation that attaches that condition to a bridging visa, then the Minister, subject to any general powers he has under section 417 or elsewhere in the Act, has also to comply with it. I do not know how you are expected to live whilst on a bridging visa. Perhaps you are expected to have a hidden cache of gold when you come to the country, but I assume you do not.

APPLICANT S96/2003: Your Honour, what this - even though this - there is some international obligation because Australia is - this is against human right because, for example, my submission which is filed 16 May 2003, summons that is filed, applicant's written submissions to support summons. So it says, "In no case may a people be deprived of its own means of subsistence." So this is from the International Convention on Civil and Political Rights.

HIS HONOUR: Yes.

APPLICANT S96/2003: So this country, this government has obligation because of this international law. So without means of subsistence - - -

HIS HONOUR: I can understand how you would reason in that way, but under our legal system the International Covenant on Civil and Political Rights, although our government on behalf of this country has subscribed to that international treaty, is not actually part of the law of Australia and, unless it is made part of the law, it cannot be used to overcome the regulation which is invoked to prevent you working whilst you have a bridging visa. It can be used perhaps to help interpret the power to make the regulations or to construe any ambiguity in the regulation-making power or in the regulation, but it cannot be used to overrule the regulation if it is otherwise valid under the Act.

So I can understand how you would think that it is an international rule that therefore is stronger than a national rule, but we still live in a world of national States and within their States their law prevails over general statements like the International Covenant on Civil and Political Rights. Even the Refugees Convention only becomes part of our law because our Parliament has incorporated it. It is not in force of its own power.

APPLICANT S96/2003: Your Honour, even - - -

HIS HONOUR: Is there no migration service or is there no migration legal service that can give you advice on your position?

APPLICANT S96/2003: The first thing - unless I got money and, you know, unless - - -

HIS HONOUR: Unless you can work to get the money to pay for the service, you will not get it.

APPLICANT S96/2003: Yes.

HIS HONOUR: There is no pro bono service, is there, for people in your position?

APPLICANT S96/2003: No, because, you see, your Honour, I mentioned last time the Federal Court directed for Order 80 for legal representation - - -

HIS HONOUR: Yes.

APPLICANT S96/2003: - - - but I was not able - I ask the barrister - - -

HIS HONOUR: I have read that. The lawyer would not see you.

APPLICANT S96/2003: I said, "Please, let me give you some information. Let me give you documentation." You see, your Honour, it was surprising for me to hear from him. He said, "I am doing what the court told me to do." And he told me - he said, "Your case is hopeless." Just before - from the beginning, from the outset, so - - -

HIS HONOUR: Well, I do not have him before me, so I do not hear his version of it, but I would be disappointed if a lawyer would not give you half an hour to talk about your case.

APPLICANT S96/2003: Your Honour, even I have not seen him, even a single day, so - - -

HIS HONOUR: Yes. Well, I do not have him here, so I should not allow you to say things about him because he is not here to answer them. Do you understand?

APPLICANT S96/2003: Yes, your Honour, but it is already - - -

HIS HONOUR: I realise that and I have read that, but it is in a document and it is a different thing. What you say goes onto a transcript and I would not like the lawyer, who, after all, is doing work free of charge, to be criticised without the chance to answer for himself. That is only fair.

APPLICANT S96/2003: Your Honour, the other point is the Migration Act section 91R - it is on page 3 of my submission to support the summons.

HIS HONOUR: Yes.

APPLICANT S96/2003: Page 3, the first paragraph, paragraph 9, the Migration Act 1958 91R persecution - it says persecution - paragraph (2)(f), for examples, says:

denial of capacity to earn livelihood of any kind, where the denial threatens the person's capacity to subsist.

This is persecution by itself. I have been persecuted in this country. I was fleeing persecution but now I am being persecuted here because I have been denied - this is the Migration Act section 91R.

HIS HONOUR: Yes, but that does not overcome the problem which is presented by the condition about not working which is annexed to your bridging visa, which is the only basis on which you are lawfully within Australia at the moment.

APPLICANT S96/2003: Your Honour, I am lawful but non-citizen - I am lawful - - -

HIS HONOUR: You are lawful under the bridging visa - - -

APPLICANT S96/2003: Yes.

HIS HONOUR: - - - as far as Australia is concerned.

APPLICANT S96/2003: But, your Honour, you know, everybody knows more than me, you know, I am sure, but my argument is how a person can survive. That is a punishment. It is punishment by itself. Why people are being punished? That is not - - -

HIS HONOUR: Yes, these are matters that have to be addressed to politicians, not to courts. All I can do is enforce the law. That is what the rule of law is. I do not have a general power to waive the law and "Open sesame". The law in this country does not work like that. I have to apply the law.

Now, I think I have explained to you sufficiently where we stand. You are seeking certain orders today. Those orders do not at the moment reveal a basis for my making them. They are propounded as interlocutory by you, that is to say interlocutory to the application for special leave to appeal to this Court. Normally that special leave would not be heard until the end of the year, or even next year, but I am prepared to expedite the hearing of the special leave and to list your special leave application in August. If you were to get special leave, then you might be in a stronger position to gain some form of interlocutory relief, if the Court can give it to you. If you do not get special leave, then the interlocutory relief would fall away and you would have to consider the application directly to this Court or to another court for orders against the Minister without going this roundabout way that you are taking at the moment.

So what I am inclined to do is simply to stand over the summons to be listed after the determination of your special leave application and to order that the special leave application be heard in August - on 8 August in Sydney. At least that will have the advantage of clearing that part of your case up. Then the summons can be brought on after 8 August to be heard - and not necessarily by myself but by a Justice of the Court. Do you want to say anything against that course that I have just foreshadowed?

APPLICANT S96/2003: Yes, clear.

HIS HONOUR: Do you understand why I am taking that course?

APPLICANT S96/2003: Yes, it is the law.

HIS HONOUR: Is there anything that I have said to you today that you do not understand?

APPLICANT S96/2003: It is clear, your Honour. It is clear. I understand. It is now listed for 8 August and you - - -

HIS HONOUR: 8 August. That is not the summons - - -

APPLICANT S96/2003: That is for special leave.

HIS HONOUR: - - - but the special leave application.

APPLICANT S96/2003: Yes. Then the summons after the special - - -

HIS HONOUR: The summons will be relisted after that and at least at that stage we will know whether you have got into this Court or not. If you have not got into the Court, then the prospects of your getting interlocutory orders are zero.

APPLICANT S96/2003: Yes.

HIS HONOUR: If you have got into the Court, then at least you have a footing on which you can argue for some form of relief if you can make out a case. But I would suggest to you that you get a copy of the transcript - and I will direct the Registrar to give you a copy of the transcript - and that you read what Mr Markus said about the case and you consider what I have said about the case and, if you can, that you get some advice on any steps that you can take to proceed more directly with your application, not as interlocutory to your special leave application but as a direct application for any relief to which you are entitled against the Minister or against any other person or of the Commonwealth in respect of the regulation that purports to forbid you from working whilst you are in receipt of a bridging visa. Do you understand all that?

APPLICANT S96/2003: Yes. That application can I approach direct to High Court?

HIS HONOUR: There are powers under the Constitution to come directly to the High Court in certain cases.

APPLICANT S96/2003: Is that - - -

HIS HONOUR: But you cannot just come to our Court and argue that you have had a hard time, that this is humiliating to you, that you should on the merits be entitled to work. None of those matters are things we can do. You have to have a legal foundation to bring your case to the Court. I know it is very difficult for you to find that foundation unless you get legal advice, but you may have some friends or other people who are in a like position who can put you on the right track.

Certainly one matter that you have to consider is how you overcome the provisions of the Regulations that require that when you are in receipt of a bridging visa you cannot work. If that regulation is valid, then you will not succeed. So that the only matter to which you should turn your - one matter to which you should turn your attention is whether that regulation is valid or not, because unless it is invalid, it will be very difficult for you, if not impossible, to succeed in any application you have. Give some thought to what I have said to you. You may sit down now. Mr Markus, do you have anything to say in relation to anything that has passed between me and the applicant?

MR MARKUS: No, your Honour. I just wanted to correct something. I think I misled your Honour in two separate ways.

HIS HONOUR: Perhaps I misunderstood. It is very easy to get lost in those Regulations.

MR MARKUS: Well, I certainly misled your Honour in one respect, and I apologise for that, your Honour. Your Honour, when I took your Honour through the Regulations and schedule 2 I think I took your Honour to page 27.

HIS HONOUR: Yes.

MR MARKUS: I think I referred to paragraph (4)(a).

HIS HONOUR: You did, yes.

MR MARKUS: That reference, your Honour, should have been to (3A)(b)(i) because (4)(a) provides:

other than a decision to refuse to grant a visa -

and this is a decision to refuse to grant a visa. So the relevant provision is (3A)(b)(i). That is where:

the applicant has applied for judicial review of a decision to refuse to grant [a] visa - - -

HIS HONOUR: Yes. Could you help me too with this? It says in the Regulations "Condition 8101 must be imposed."

MR MARKUS: Yes.

HIS HONOUR: Where do I actually find the terms of 8101?

MR MARKUS: Well, your Honour, schedule 8 to the Migration Regulations, which I did not give a copy to your Honour but perhaps if I could just hand up - - -

HIS HONOUR: Could you read it onto the record? I think that would be more helpful.

MR MARKUS: Yes, thank you, your Honour.

HIS HONOUR: Because that is the condition which must be imposed, according to regulation 050.612A(2) and it is therefore imposed on the applicant's bridging visa and you tell me that is the condition which forbids him from being able to work whilst a holder of a bridging visa.

MR MARKUS: Yes, your Honour.

HIS HONOUR: Would you just read that condition onto the record?

MR MARKUS: Certainly. The condition provides as follows:

The holder must not engage in work in Australia.

HIS HONOUR: Yes, very well.

MR MARKUS: I think it is set out in those terms, your Honour, in the letter that is annexed to the affidavit - - -

HIS HONOUR: Yes, I think it is. I think you are quite right.

MR MARKUS: Your Honour, the second matter where I am concerned I may have misled your Honour is that the provision that relevantly requires the imposition of condition 8101, that is the provision that appears at page 40 of the extract that I handed up to your Honour - - -

HIS HONOUR: Yes.

MR MARKUS: - - - only applies to that particular type of bridging visa if obtained in the circumstances identified further up. So it is not a general requirement in relation to bridging visas. It applies to some types of bridging visa in circumstances - - -

HIS HONOUR: But do you say that the circumstances specified in the provision 050.612A(1) are the circumstances that apply to the present applicant?

MR MARKUS: Because of - - -

HIS HONOUR: This is because of paragraph (1)(a)(iii)?

MR MARKUS: Actually (i), your Honour, after my correction.

HIS HONOUR: I see. The relevant condition that attracts condition 8101 and obliges that condition to be imposed to the applicant's bridging visa is 050.612A(1)(a)(i) referring to subparagraph 050.212(3A)(b)(i)?

MR MARKUS: That is correct. If the Court pleases.

HIS HONOUR: I will not say that reading the Migration Regulations is the most pleasurable activity that a lawyer can have.

For the reasons that sufficiently appear in the exchanges with counsel and with the applicant, the orders that I make are:

(1) Expedite the hearing of the applicant's application for special leave to appeal from the judgment of the Full Court of the Federal Court of Australia dated 13 March 2003;

(2) Order that that application be heard before a Full Court in Sydney on 8 August 2003;

(3) Stand over the summons filed by the applicant, interlocutory to the application for special leave, to be relisted by the Registrar following the determination of the special leave application upon five days notice to both parties;

(4) Reserve the costs of the proceedings today to be costs in that summons; and

(5) Certify for the attendance of counsel in chambers.

Are there any other orders that you ask for today, Applicant?

APPLICANT S96/2003: .....that is only in the summon, that is only - - -

HIS HONOUR: No, that is stood over until after the special leave hearing. But I will direct that you receive copy of the transcript. You should give careful thought to what appears on the transcript as to whether you are going around this in a very indirect way and whether there is not a more direct way for you to bring your application for relief that you seek in your interlocutory summons to the Court in its original jurisdiction. But if you do that, you will have to indicate more clearly the legal basis upon which you are seeking relief because, as I have explained to you, the Court cannot just give you relief because it would be fair. It has to have a legal basis for doing so. Do you understand?

APPLICANT S96/2003: Yes. Can I ask you one more question, please?

HIS HONOUR: I cannot hear you.

APPLICANT S96/2003: Can I ask a question, please, your Honour?

HIS HONOUR: You can ask the question. I do not know whether I can answer it.

APPLICANT S96/2003: If I am using this direct way - direct means just bringing a new application, that means, as I understand, to withdraw this summon or - - -

HIS HONOUR: Well, that would be a matter for you to decide. I cannot give you advice on that. I just sit here to decide cases. You would have to decide that for yourself. Some people do not know that it is a peculiar feature of the Australian Constitution, and a most beneficial feature in my opinion, that in addition to the appellate powers that the Court has there is this provision which the founders of our Constitution put there, that where a case concerns the Commonwealth or an officer of the Commonwealth and involves any want of exercise of jurisdiction by that body or those people, you can come directly to the Court.

So that is something you should think about and, if you can, get advice about because that may be more hopeful than going in the very indirect way that you are going at the moment, which seems fraught with danger.

The orders that I have made appear on the record. I will now adjourn the Court.

AT 12.32 PM THE MATTER WAS ADJOURNED