W389/01A v MIMIA [2004] HCATrans 263 (6 August 2004)

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W389/01A v MIMIA [2004] HCATrans 263 (6 August 2004)

Last Updated: 17 August 2004

[2004] HCATrans 263

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Perth No P10 of 2003

B e t w e e n -

W389/01A

Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

Application for special leave to appeal

Office of the Registry
Perth No P102 of 2002

In the matter of -

An application for Writs of Certiorari and Mandamus and Prohibition against REFUGEE REVIEW TRIBUNAL

First Respondent

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Second Respondent

Ex parte –

APPLICANT W389/01A

Applicant/Prosecutor

McHUGH J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

FROM PERTH BY VIDEO LINK TO CANBERRA

ON FRIDAY, 6 AUGUST 2004, AT 11.02 AM

Copyright in the High Court of Australia

__________________

MS L.B. PRICE: May it please the Court, I appear for the applicant.
(instructed by the applicant)

MR P.R. MACLIVER: May it please the Court, I appear for the respondent. (instructed by the Australian Government Solicitor)

McHUGH J: Yes, Ms Price.

MS PRICE: Your Honour, there is an adjournment application on this matter of which notice was given by letter to the Court on 2 August. An adjournment is sought essentially as a result of the current status of the applicant’s visa and the respondent’s current approach to it. The applicant, about 12 months ago, married an Australian citizen and following the filing of application P102 was granted a bridging visa and he is living with his wife in the community in Melbourne.

I understand that some three weeks ago the Minister instigated a review of the applicant’s case in light of this present situation and a submission has gone to the Minister. I understand it went to the Minister on 29 July with a view to either granting the applicant a visa or allowing him to make a fresh application for visa.

In those circumstances, your Honour, we think it appropriate there is an adjournment. Should your Honours refuse this application for special leave there is the question of costs that will be incurred by the applicant and in those circumstances it is our submission that it is quite prejudicial to the applicant to proceed at the present time with the matter when there is a very strong likelihood, based on the Minister’s initiated review, that these proceedings may well be rendered otiose.

That is on the special leave application, your Honours. There is also the constitutional writ application which my understanding of the way the Court works is that normally the appeal would be dealt with first before the constitutional writ and I base that on the comments of the Court in Dranichnikov and also Abebe.

I understand that my learned friend filed some written submissions on the order nisi matter about 3 pm yesterday. Those submissions raise a ground of challenge upon which I was not aware, which is the res judicata ground. That is a matter upon which there would need to be research and an appropriate answer filed, your Honours. It is also our submission that to argue the order nisi today is considerably prejudicial to the applicant who has a limited time, upon a special leave application, to argue the special leave points and to expect him to argue additional procedural fairness points and unreasonableness points in the time allocated for a special leave application is unreasonable.

Also, in the course of examining the draft order nisi to ascertain whether it could be dealt with today, it appears to me that there may be a further ground upon which the constitutional writ matter could be based and that appears to be that the Tribunal may not have given the applicants sufficient notice of the country information upon which it relied to find his supporting evidence not legitimate and also that the Tribunal appears not to have informed the applicant that the warrant, or the document upon which he particularly relied, would not be found to be legitimate and give him a proper opportunity to respond to that.

Certainly, on the basis of cases like Muin and Lie, that would appear to be a strong procedural fairness point and we would be seeking the opportunity to raise that in the order nisi proceedings, your Honours. Those are my submissions on the adjournment application.

McHUGH J: We will hear what your opponent says about this adjournment. Yes, Mr Macliver.

MR MACLIVER: Yes, if it please, your Honours, my instructions are to oppose the adjournment. Firstly, I can confirm that what my learned friend says is correct that there has been a submission put to the Minister. My instructions are that it was 28 July, but nothing turns upon that. There is no indication, and I cannot give any indication to the Court of how long the Minister may take to consider that. My instructions are to oppose the adjournment and - - -

HAYNE J: Was the review of the applicant’s visa initiated by the Minister?

MR MACLIVER: My instructions are that yes, it was, your Honour. I am sorry, it was initiated by the Department. I am not sure whether it was specifically initiated by the Minister herself.

McHUGH J: Subject to anything further you have to say we think, in the circumstances, it is an appropriate case, particularly having regard to the fact of the order nisi and the point you make about res judicata, which is an additional point, Mr Macliver. Is there anything further you want to say?

MR MACLIVER: No, I do not think there is anything further I could say, your Honour. Thank you.

McHUGH J: Now, Ms Price, how long do you want this matter to be adjourned for? It cannot be left at large. It would have to have some time - - -

MS PRICE: I appreciate that, your Honour. We were thinking perhaps it could be brought on in the October list when the Court is in Perth. That would allow a period of a couple of months for the Minister to consider the review submission and also to tidy up the draft order nisi, if your Honours were minded to deal with that at the same time as the special leave application.

McHUGH J: I think there is a provisional list being drawn up for Perth, but in the circumstances, unless Mr Macliver has some objection, I see no problem about adjourning it until the Perth sittings of the Court. Do you see any problem about that, Mr Macliver?

MR MACLIVER: No, your Honour, I cannot see any problem with that. We are only talking about two and a half months.

McHUGH J: Two and a half months, yes. Yes, very well. On the application of the applicant, this matter will be adjourned until the Perth sittings of the Court. The costs of today’s proceedings and the costs of the adjournment are reserved.

The Court will now adjourn to reconstitute.

AT 11.10 AM THE MATTER WAS ADJOURNED