Applicant M266/2003, Ex parte - Re MIMIA & Anor [2004] HCATrans 157 (11 May 2004)

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Applicant M266/2003, Ex parte - Re MIMIA & Anor [2004] HCATrans 157 (11 May 2004)

Last Updated: 13 May 2004

[2004] HCATrans 157

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M266 of 2003

In the matter of -

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

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

Ex parte –

APPLICANT M266/2003

Applicant/Prosecutor

HAYNE J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON TUESDAY, 11 MAY 2004, AT 9.49 AM

(Continued from 26/2/04)

Copyright in the High Court of Australia

MR A.D. O’DONOGHUE: If your Honour pleases, I appear on behalf of the applicant/prosecutor. (instructed by Bourke & Wells)

MR C.J. HORAN: If the Court pleases, I appear for the respondent. (instructed by Australian Government Solicitor)

HIS HONOUR: Now, the history of this matter, counsel, is that it was brought on at the callover of migration matters held in February of this year. At that point, I indicated that, subject to what may later emerge, my then intention was that I should refer the hearing of the application for orders nisi to the Court as constituted to hear the application for special leave which is VAAW of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs, matter M265 of 2003. Now, Mr O’Donoghue, do you wish to be heard against my following that course?

MR O’DONOGHUE: No, your Honour. I wish to urge that your Honour take that course.

HIS HONOUR: Are counsel aware of there being any residual dispute of fact presented in the application for constitutional and related relief? I am not, but are counsel aware of any dispute?

MR O’DONOGHUE: No, your Honour, it is my view that the submissions that have been filed by both parties subsequently to the last occasion indicate that there is no substantive dispute of fact and that this matter turns very much on the way that the Refugee Review Tribunal used a letter from authors purporting to be Falun Gong practitioners in Shanghai.

HIS HONOUR: Yes. Well, Mr Horan, what do you say?

MR HORAN: The Minister does not oppose the proposed order, your Honour.

HIS HONOUR: Do you agree that there is no dispute of fact?

MR HORAN: None that I am aware of, your Honour.

HIS HONOUR: Yes. Counsel are well aware of the process that is being engaged in, from my point of view. I am – lest counsel be under any misapprehension about this – “verballing” counsel to the effect that there is no dispute of fact.

MR HORAN: I will correct my answer to none, your Honour.

HIS HONOUR: I would not want there to be any misapprehension of what is happening. If, then, I were to direct that the application be made by notice of motion to a Full Court, if I were to adjourn the application so that notice may be given, direct that, subject to any contrary order, the application be heard at the same time as the application for special leave in matter M265 of 2003, VAAW of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs, further direct that the applicant prepare and file an application book substantially in the same form as would be appropriate were the application an application for special leave and do so on or before 28 May, make the costs of today costs in the application and certify for the attendance of counsel, would counsel wish to be heard against my making orders in those terms or wish to be heard about the form in which they are made?

MR O’DONOGHUE: Your Honour, if I may raise one matter in respect of the form of the application book, simply to indicate that the transcript of the proceedings before the Tribunal, which are obviously critical to this proceeding, are already included in the application book, and I would submit that it is not necessary to reproduce them.

HIS HONOUR: Indeed, not only not necessary, but undesirable that they be reproduced again. My intention would be that the Deputy Registrar will settle an index of this new application book, which will take account of material that is already in the application for special leave book, avoid duplication - - -

MR O’DONOGHUE: I am grateful for that indication, your Honour.

HIS HONOUR: - - - and simply add whatever further papers are necessary for the disposition of this, including, though, within that, of course, the written summaries of argument, which I think have already been filed.

MR O’DONOGHUE: Yes. It would be the Court’s intention that the index would be settled, obviously, prior to the 28^th?

HIS HONOUR: Very promptly, I think it can be done, though the Deputy Registrar does have one or two other things to attend to in the meantime. These are steps which can be taken promptly.

MR O’DONOGHUE: The only other matter I raise, your Honour, if everything is done as required by 28 May, would it be likely that these matters would come on in the June special leave - - -

HIS HONOUR: Put it this way, I am giving directions on the assumption that they would be ready to come on in the June list. Now, whether they will make the June list will depend on other pressures.

MR O’DONOGHUE: Yes, I accept that. Thank you for that indication, your Honour. They are the only matters I wanted to raise.

HIS HONOUR: Yes. Mr Horan, do you want to be - - -

MR HORAN: No, your Honour.

HIS HONOUR: Yes, well, I will make orders in those terms. I will adjourn.

AT 9.56 AM THE MATTER WAS CONCLUDED