Applicant A16/2004; Ex parte - Re MIMIA [2005] HCATrans 575 (9 August 2005)

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Applicant A16/2004; Ex parte - Re MIMIA [2005] HCATrans 575 (9 August 2005)

Last Updated: 5 September 2005

[2005] HCATrans 575

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Adelaide No A16 of 2004

In the matter of -

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

Defendant

Ex parte –

APPLICANT A16/2004

Plaintiff

HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT ADELAIDE ON TUESDAY, 9 AUGUST 2005, AT 2.29 PM

Copyright in the High Court of Australia

APPLICANT A16/2004 appeared in person.

MS S.J. MAHARAJ: May it please, your Honour, I appear for the Minister. (instructed by Sparke Helmore)

HIS HONOUR: Ms Maharaj, there is a summons of 14 June 2005 which has been issued on behalf of the Minister. Is it convenient if we deal with that matter and take that matter?

MS MAHARAJ: May it please your Honour, it is. May I just inquire, your Honour, as to whether.....your Honour?

HIS HONOUR: Yes, I have that.

MS MAHARAJ: .....and together with an affidavit of Elizabeth Mary Inglis on 14 June 2005, which was sworn on 10 June 2005.

HIS HONOUR: Yes.

MS MAHARAJ: Your Honour, you will see that annexed to our submissions.....

HIS HONOUR: Yes, I have all of those documents. All of those documents have, I take it, been provided to the applicant/prosecutor?

MS MAHARAJ: Yes, your Honour. May I just inquire as to whether your Honour has had an opportunity to read our submissions?

HIS HONOUR: Yes, I have.

MS MAHARAJ: The submissions.....

HIS HONOUR: Just before we come to it, you read the affidavit of Elizabeth Mary Inglis of 10 June 2005 and rely on the exhibits. Is there any objection to receiving the affidavit of Ms Inglis?

APPLICANT A16/2004: No, your Honour.

HIS HONOUR: Yes. I have looked at that and have looked at the outline of submissions. Ms Maharaj, can I ask you this: am I right to understand the application that is made by the applicant to be directed to obtaining various forms of relief, constitutional writs and other relief, directed to the decision of the delegate of the Minister of 7 November 1996?

MS MAHARAJ: That is the way I understand it, your Honour.

HIS HONOUR: A decision which has been the subject of review by the Refugee Review Tribunal, two attempts at review having been quashed but the third of which survived applications for judicial review, is that right?

MS MAHARAJ: That is correct, your Honour.

HIS HONOUR: So that, in particular, the third decision of the Refugee Review Tribunal made on 19 May 2000 was the subject of an application for judicial review made to the Federal Court which was dismissed in April 2001. An appeal against that dismissal failed and an application for special leave to appeal from the Full Court’s decision also failed, is that right?

MS MAHARAJ: Yes, your Honour, that is the precise issue.

HIS HONOUR: It seemed to me that a possible way of examining the matter was not so much by reference to questions of res judicata or Anshun estoppel as to say that the decision, that is, the delegate’s decision, which it is sought to impugn is no longer the relevant and operative decision.

MS MAHARAJ: Precisely, your Honour. That is the submission that I was going to make in oral submissions because that was overtaken by the decision of the Tribunal.

HIS HONOUR: And that even if application for extension of time to obtain some of the relief sought were to be granted and there is a whole separate set of issues, having obtained a review of the decision of the Minister’s delegate and the review having affirmed the refusal, it would now be futile to grant any relief directed towards the decision of the delegate of the Minister.

MS MAHARAJ: Precisely, your Honour.

HIS HONOUR: Yes. Well, it may perhaps be most convenient if I hear from the applicant at this point. Now, we encounter this difficulty, section 91X of the Migration Act, amongst other things, tells me that I may not refer to you by your name because we are having a transcript kept. That puts me in the difficult position where I cannot extend to you the courtesy I would extend to any litigant in my Court, namely, of addressing you by your name. Forgive me if I do not, but that is the position in which we find ourselves and I am therefore reduced, I am afraid, to referring to you simply as “the Applicant”.

APPLICANT A16/2004: Yes.

HIS HONOUR: I intend you no discourtesy. The point, it seems to me, that you have to meet is this. You come to this Court asking for relief, asking for orders about the decision of the delegate of the Minister.

APPLICANT A16/2004: Yes, your Honour.

HIS HONOUR: You have already had review by the Refugee Review Tribunal of that decision and, ultimately, unsuccessfully had applications for judicial review of what the RRT did. What point would be achieved in granting any relief, any orders about what the delegate of the Minister did? That is the point, it seems to me, you have to meet.

APPLICANT A16/2004: Yes, your Honour. If I understand you correctly, your Honour, I do not know if Ms Maharaj is going to go first or myself.

HIS HONOUR: I have stopped her because I think that the point which stands as apparently a hurdle in your way is the point I have attempted to articulate to you. Now is the chance you have to tell me why that is not a hurdle in your way.

APPLICANT A16/2004: Your Honour, before I do I do have some exhibits which I filed – came to file in the Courts last Monday but I was not aware of the new Rules which apply that say all materials had to be typed.

HIS HONOUR: Yes.

APPLICANT A16/2004: I am here asking leave of the Court to allow me to tender.....as they are very crucial to the submissions I am about to give to your Honour.

HIS HONOUR: Yes. Has Ms Maharaj seen the material that you want to hand to me?

APPLICANT A16/2004: No, I have not shown her.

HIS HONOUR: Perhaps if you would show it to her first. While she has a look at it, perhaps if you would be good enough to sit down. Ms Maharaj, is there any reason why I should not look at those documents?

MS MAHARAJ: Your Honour, I fail to see the relevance of the documents.....

HIS HONOUR: I understand that, but the question is narrower. Is there any reason why I should not look at them?

MS MAHARAJ: No, your Honour.

HIS HONOUR: Perhaps if you would be good enough to hand them up and then we will see what we do with them. Thank you. I will look at these documents. I have looked at those documents. It is not immediately apparent to me why they relate to the issue that now arises. It seems to me that the better course to follow at the moment is simply to note them but to ask you to address argument directed to this question: what purpose would there be in the Court granting orders of the kind you seek - - -

APPLICANT A16/2004: .....

HIS HONOUR: - - - just a moment – directed to the decision of the Minister’s delegate? I will repeat the question so that you have it clear in your mind. The question is: what purpose would there be in the Court granting orders of the kind you seek directed to the decision of the Minister’s delegate? What do you say in answer to that question?

APPLICANT A16/2004: Thank you, your Honour. If I may proceed with my submission.

HIS HONOUR: I ask you to address your submissions to the question I have asked you.

APPLICANT A16/2004: The purpose that it will achieve – it will achieve, first of all, justice.....and, secondly, it will achieve that the end result of the delegate’s decision will have been different. According to established authorities, justice is not – an injustice done to an individual can only be rectified if that injustice is corrected in the highest court of authority of a country and this is a country that respects the rule of law and in the highest court of this country an injustice of this kind will not allow – cannot be allowed to pass because.....once and for all that everybody once and for all can use any powers to determine whether somebody is.....or not.

So it is my respectful answer to your question that the purpose, one, is to see that the injustice done to the applicants is rectified and that the end result of the delegate’s decision will have been different had it not been for those particular material which identify.....

HIS HONOUR: Yes.

APPLICANT A16/2004: I do not know if.....proceed with my submissions now.

HIS HONOUR: Is there anything else you would wish to say in response to the question – the particular question I have posed?

APPLICANT A16/2004: Yes, secondly,.....the applicants the original relief.....by the granting of the visas to applicants applied for because of the fear of persecution for Convention reasons.

HIS HONOUR: Yes.

APPLICANT A16/2004: And it is not to be taken lightly because that delegate’s decision is one that is supposed to be final and where an injustice has arisen from that, that injustice, irrespective of the fact of what the.....an injustice can still be rectified, so that the country at large - the legal system in this great country rectifies this injustice.....being done to individuals.....

HIS HONOUR: Yes, go on.

APPLICANT A16/2004: I have about five questions which I need to address. One was whether the delegate was under a duty to exercise his power according to the rules of natural justice. The second question I would like to ask would be whether the delegate committed a jurisdictional error by not offering the applicants, A16 of 2004, an opportunity to respond to material that came into existence at the date of application which the delegate considered decisive, as a matter of credibility, against the applicants’ case. Thirdly, this same question also applies to the first Akpata decision, No 896/05475 of the 3/4/1998.

Fourthly, whether the RRT decision of 19/5/2000, annexure EMI2 to the affidavit of Elizabeth Mary Inglis sworn on 10/6/2005 filed in.....proceedings committed a decision of error by applying an incorrect test.....the applicants..... And, finally,.....whether the statutory contest and the circumstances of the case the RRT breached the rules of natural justice by not offering the applicant an opportunity to respond to material that came into existence after the date of the application and the Refugee Review Tribunal considered decisive.....

HIS HONOUR: Now, those five questions. Question 1, was the delegate bound to accord natural justice? For the purposes of argument in this matter, I am prepared to assume, without deciding, that the answer to that question is yes. You need not address submissions directed to that unless or until Ms Maharaj persuades me that I should make some different assumption. Do you understand that?

APPLICANT A16/2004: Yes, your Honour.

HIS HONOUR: Question 2, did the delegate commit jurisdictional error in not giving you an opportunity to respond? In connection with that you must tell me why any deficiency of that kind was not cured by your review before the RRT.

Question 3, your complaint about the first RRT decision, whether framed as you now frame it or in some other way, succeeded. It seems to me that what happened with the first RRT decision should now be set to one side as irrelevant.

Question 4, did the RRT in reaching its third decision, the decision of May 2000, commit jurisdictional error? That seems to me to have been the subject of the proceedings by way of judicial review in the Federal Court, Full Federal Court and ultimately failed application for special leave. Why should you be permitted to reopen it?

Lastly, did the RRT fail to accord you natural justice? If that is a question concerning the third decision of May 2000, why has that not also been swept up with the judicial review which you sought but failed to obtain? Yes.

APPLICANT A16/2004: Thank you, your Honour. I would like to start by saying.....the rules of natural justice.

HIS HONOUR: Look, we are not going to get anywhere unless you attend to my questions. I am trying to focus your mind and your submissions on what seem to me to be the relevant issues. What are the answers to the several questions I have put?

APPLICANT A16/2004: The reason why the third question is relevant – I have the decision here which I am prepared to hand over and there is a paragraph there which will validate the.....of the questions you have raised, your Honour,.....

HIS HONOUR: This is a written document in development of each of these questions? Yes, give a copy to Ms Maharaj and hand one to Mrs Musolino, please. Yes, give me a moment to look at this document, please. What you have handed to me is, on its face, a copy of the decision of the RRT of 3 April 1998. That is, I believe, the first of the RRT decisions, is it?

APPLICANT A16/2004: Yes, your Honour.

HIS HONOUR: What is the relevance of the first RRT decision when it has been set aside?

APPLICANT A16/2004: Yes, your Honour, because you see that – if I may refer you just to paragraph.....

HIS HONOUR: No. Tell me what the relevance of the first RRT decision is to the present application, given that the first RRT decision was set aside.

APPLICANT A16/2004: Yes, because as his Honour Justice Kirby said in Miah.....[185], your Honour, his Honour stated that:

In many cases, it can be expected that applicants for refugee status will be vulnerable, alone, without friends or family, and with limited access to legal and other assistance. Such considerations serve to emphasise the importance of the primary decision by the delegate. In the vast majority of cases, the delegate’s decision will (and should) conclude the application. Published statistics suggest that, as a matter of practicality, adverse determinations by delegates of refugee applications in Australia are rarely disturbed by the tribunal. If this is so, it lends still greater emphasis to the importance of ensuring that the initial decision is correct.

That is.....because it was at that.....that the applicants found out about these documents and if his Honour’s assessment, which the majority in that case accepted, is right, the issue of credibility is the central issue here, and that issue was not addressed. That document destroyed the creditworthiness and because he found – that document has already found its way from the delegate all.....the peace of mind that the applicants will have had has been denied.

So, therefore, your Honour, the threshold objection of the respondents.....the issue of credibility in relation to refugee application is a very, very.....handed over to you, especially of.....and the affidavit of Mr Patel and some of the other documents here will show that the documents and the – also that document was present in the other matters and was aware and so he knew that the contents of that document were not true, and that has flown through to the delegates who never gave the applicants the opportunity to respond.....have changed his mind and the visas would have been granted. That document has played a major part and because the Constitution of this country will not permit injustice, hence the applicants have come to this Court asking that this.....be granted because of the jurisdictional error that he committed and the injustices.

Your Honour, with that – I have a lot of references to make in support. I just want to tell you the importance of that. If you look at it from the point of credibility, your Honour, which is the hallmark of every reference.....application, that document has caused a lot of turmoil, a lot of mental and – the peace that the family, the entire family will have had, that document has destroyed it.....

The material relied upon by the delegate and the RRT, the first RRT, as I have already submitted to you,.....about which the applicant now complain has played a major part in the over-assessment of the creditworthiness of the applicants. That assessment, in particular, concerning the main applicant prosecutor in this case has.....assessment of the credibility of evidence of his wife.

Third, the assessment of the measure of.....this case.....activities in the country of origin. Even if.....by the applicant are rejected, it has failed – the assessment that the applicants are not from.....The first consideration – given those considerations, your Honour, it is submitted that the end result might not be the same if the applicant had been given the opportunity to respond to material and document which it identified.....in this Court.

If that document were not given the significance that it.....by the judges and the Tribunal, a different conclusion may have been reached on the creditworthiness of the wife of the applicant and the weight to be given to.....credibility evidence and.....by the main applicant. It is submitted that it is now well established on the authorities that if there is a.....natural justice.....could have affected the outcome that the constitutional relief of prohibition and mandamus would issue under section 75 of the Constitution. It is also submitted that the writ of certiorari is also relevant if that is the remedy....ensure the effective exercise of the jurisdiction conferred under section 75.

.....have submitted that.....the position of the Commonwealth statutory power, first, forced into the.....beyond power and is therefore amendable to those constitutional writs which are available under section 75 of the Constitution.....

HIS HONOUR: Yes, I am familiar with those authorities. That is not a point you need to develop. Please pass to your next point.

APPLICANT A16/2004: So, your Honour, I submit that given the.....of the delegate not affording the applicants the opportunity to respond to material as.....and the end result might have been different. It is my respectful submission, your Honour, to direct your attention in particular to page 12 and 13 of the first RRT decision. I also rely upon the majority of the decision in....., the Full Federal Court decision [2004] FCAFC 65 handed down on 25 March 2004 by his Honour Justice Lander of which their Honours Justice Carr and Justice Sundberg agreed. I also rely on Plaintiff S157 v The Commonwealth.

Your Honour will see where there has been a denial of natural justice that justice can be rectified and it is because that.....like those documents I have showed you, neither in any of the chronology in any of the courts.....before this Court today have they mentioned that the applicants actually applied for a section 126 migration application before applying for refugee status.....by saying that the delay caused and that is.....on the courts. In all submissions they have avoided that and have only argued that owing to the delays in applying for a protection visa there was.....fear of persecution. That act of injustice.....When the applicants arrived in Australia they sought the advice of an ex-member of Parliament - - -

HIS HONOUR: To what issue does this point go?

APPLICANT A16/2004: Yes, because it goes to the point that, one, the applicants have tried, in the first instance, from the advice received to obtain permanent residence in the country.

HIS HONOUR: Yes, I understand that. Yes.

APPLICANT A16/2004: And, secondly, according to the affidavit of Elizabeth Mary Inglis, she says she has perused everything and to best of her knowledge and everything she has read is correct. What about that document of the application under section 126 which was applied for in 1994 when the applicants arrived? We met the requirements. The points were raised and only was there five points and there was a breakdown because of fear.

So, your Honour,.....everything that has happened, the injustices and the.....by not proving and just keeping that material.....and, secondly, in her chronology to you, your Honour, she did not include the first RRT decision, neither the second RRT decision. It does not disclose the fact that the applicant did not come into contact with this material some four years after it was issued.....applicant has spent two years in detention, immigration..... - - -

HIS HONOUR: To what issue does this submission go?

APPLICANT A16/2004: It goes to special circumstances, your Honour.

HIS HONOUR: For what? Special circumstances for what?

APPLICANT A16/2004: For the purposes of the impact that the delegate’s decision has had on the entire family.

HIS HONOUR: I understand that.

APPLICANT A16/2004: Yes.

HIS HONOUR: These are important issues. Yes.

APPLICANT A16/2004: So it is my submission, your Honour, in The Laws of Australia Part D.....Part B I cannot actually tell you, but let me just read. It says:

A judgment obtained by fraud is said not to support an estoppel because older authority treats such a judgment as a nullity without the necessity of having it set aside, at least where the species of fraud relied on is collusion between apparently hostile parties. In other cases of judgment obtained by fraud, the judgment is treated as valid and final “until judicially rescinded”. The argument that the presence of fraud destroys a necessary characteristic of a judgment relied on to support an estoppel, regardless of whether or not it is set aside, fails to avoid the risk of conflicting judgments or the operation of the doctrine of merger. These inconsistencies are avoided when the judgment relied on is treated as a nullity. Therefore, the requirement that the judgment be unimpeachable for fraud in order to support an estoppel appears to be limited to those judgments which, although not set aside, can be treated as null and void in subsequent proceedings by reason of the fraud perpetrated on the court.

Your Honour, the applicant comes to this Court.....constitutional writs to correct an injustice that has been done to the family. Your Honour, it is my submission that those – given the gravity of what has transpired and the consequences that the applicants have suffered, those relief should be granted because of the.....this Court on the constitutional.....

HIS HONOUR: Yes.

APPLICANT A16/2004: Your Honour, I have to stop there for the moment except if you have any questions for me.

HIS HONOUR: No, I have no questions, thank you. That completes your submissions, thank you. Ms Maharaj, is there anything you wish to add by way of reply to the rather truncated version of my understanding of your submission that I put to you in-chief?

MS MAHARAJ: No, your Honour, simply to say that.....by your Honour.....applicant’s submissions, those really are matters.....that question has not been answered properly.

HIS HONOUR: Thank you.

On 30 March 2004 the applicant filed an affidavit he had sworn on 23 March 2004 in support of an application to this Court for order nisi for writs of certiorari, mandamus and prohibition directed to the Minister for Immigration and Multicultural and Indigenous Affairs. In accordance with the then applicable Rules of Court, the applicant filed a draft order nisi which revealed that the relief which he would seek was certiorari to quash the decision of the delegate of the Minister made on 7 November 1996 in which the delegate refused to grant a protection visa to the applicant, his wife and son, mandamus directed to the Minister requiring the Minister to issue and grant a protection visa to the applicant, his wife and son, and prohibition directed again to the Minister prohibiting the Minister from proceeding further in respect to the decision made by the delegate on 7 November 1996. The draft order nisi revealed further that the applicant sought an enlargement of the time within which to make his application, the time fixed by the then applicable Rules of Court having long since expired.

The applicant served these papers on the Minister who, by summons dated 14 June 2005, now moves for orders dismissing the application on any of a number of bases. As emerged in the course of argument, the basis to which attention will chiefly be given is that the application which the applicant makes is futile. It should be noted of course that since the application was filed, the High Court Rules 2004 have come into force and further proceedings in the matter, commenced as they were under the old Rules, are now regulated by the 2004 Rules. It is, however, not necessary to trace the several respects in which the 2004 Rules now provide for different procedures from those that would have been followed under the Rules of 1952. Nothing turns on those differences.

What is important, however, is to notice some aspects of the chronology of underlying events as it was recorded in the chronology filed by the solicitor for the Minister and not, as I understood it, disputed by the applicant. That chronology reveals that the applicant has made a number of applications to tribunals and to courts since the particular decision of the delegate of the Minister made on 7 November 1996 which he would seek to challenge by the present proceedings in this Court.

For the moment it is sufficient to trace the history of only some of those proceedings. In particular, however, it is important to notice that the applicant sought and obtained a review by the Refugee Review Tribunal of the decision made by the delegate of the Minister to refuse the claimed protection visa. Two decisions of the Tribunal the first made on 3 April 1998 and the second on 18 May 1999 were set aside on application for judicial review, but a third decision of the Tribunal, made on 19 May 2000, affirmed the decision of the delegate to refuse the applicant a protection visa. The applicant sought but failed to obtain judicial review of that third decision of the Tribunal. His application for judicial review was dismissed at first instance on 11 April 2001. An appeal against that dismissal was dismissed by the Full Court of the Federal Court by order made on 21 December 2001 and the applicant’s application to this Court for special leave to appeal against the orders of the Full Court was dismissed on 4 February 2002.

It is to be noticed also that the applicant has since sought another form of visa and he has sought to pursue judicial review of the decision to refuse that form of visa. Again, it is not necessary to trace the course of those events. Moreover, given that litigation in one or more of its several aspects concerning that application for a different form of visa remains pending, it would be undesirable to embark upon any consideration of it. For the moment it is enough to say that the events surrounding the application for another form of visa are not relevant to the decision in respect of which the applicant seeks relief in the present proceeding.

In the course of oral argument today in support of his contention that to obtain relief of the kind for which he has applied in this Court would ultimately serve some purpose, the applicant referred to an affidavit which had been prepared in handwriting and sworn on 1 August 2005 to which were exhibited a number of documents dealing with a diverse range of subject matters, none of which on perusal appeared to me to bear immediately upon the issues that fall for determination of the Minister’s summons. Nonetheless, it would be as well, I think, to receive the handwritten affidavit of 1 August 2005 and its exhibits without ruling on the relevance of them so that the record of the material that the applicant relied on in answer to the Minister’s submission may be complete.

In addition, in the course of oral argument the applicant produced what on its face appeared to be a copy of the decision and reasons for decision of the Refugee Review Tribunal made in its first review of the delegate’s decision. Again, it is as well that the document handed to me in that respect by the applicant should also remain on the file so that again there can be no doubt of the material to which he referred in the course of his application.

At the outset of his argument in opposition to the Minister’s application, I asked the applicant to direct his attention to the question: what purpose would there be in this Court granting orders of the kind he seeks directed to the decision of the Minister’s delegate? To that question the applicant advanced two answers. First, he said to grant relief of that kind would rectify an injustice. Secondly, he said to grant relief of the kind sought would be useful because the decision of the delegate would have been – or, I would interpolate, might have been – different had there not been the several grounds of complaint which he seeks to agitate in this Court.

Those answers do not grapple with the fundamental difficulty that is presented in the way of the applicant’s application. Having obtained, as he did, a review of the decision of the Minister’s delegate, which is the decision he seeks to impugn in the present proceeding, and that review having affirmed the refusal to grant a protection visa, it would be futile to grant relief of the kind which he would seek in this Court. It would be futile to do so because the decision which he seeks to impugn by the proceedings in this Court is not the decision which presently operates to determine that he is not entitled to a protection visa. The decision which now determines that he is not entitled to a protection visa is the decision of the Refugee Review Tribunal made on 19 May 2000, a decision which the applicant has long since unsuccessfully sought to challenge.

The futility to which I refer is reason enough to conclude that the application for orders nisi should stand dismissed. It is as well, however, to go on to notice one other difficulty lying in the way of the applicant which in my opinion presents an insurmountable hurdle for him. The application which the applicant now makes for certiorari and mandamus was instituted well out of time. The applicant acknowledges so much by recording in his draft order nisi a prayer for an enlargement of the applicable times. The course of events that has been revealed in this matter provides no reason for extending those times. Without certiorari to quash the decision, not only would mandamus not lie; prohibition would not issue to preclude the Minister or officers of the Department giving effect to any applicable provision of the Act that would be engaged in consequence of the applicant having no valid visa permitting him to remain in Australia were that ultimately to be the situation that emerged. For that reason also, the application is one which is bound to fail.

In all these circumstances the appropriate order to make is simply that the application stands dismissed with costs.

APPLICANT A16/2004: In the affidavit of Mary Inglis she said that the respondent would get costs.

HIS HONOUR: Where do I find that? To what paragraph do you refer?

APPLICANT A16/2004: The summons, your Honour, the summons.

HIS HONOUR: Paragraph 6 says:

The costs of and incidental to this application be the Respondent’s.

That is to say, I read it “be the Minister’s.”

MS MAHARAJ: Yes, your Honour. That is what was intended.

HIS HONOUR: Yes. Is there anything else you wish to say?

APPLICANT A16/2004: Yes, your Honour. I would like to say that I would like to appeal this decision.

HIS HONOUR: That is a matter entirely for you. The orders will be as I have pronounced them.

MS MAHARAJ: Is your Honour at all minded to entertain the request in paragraph 5 of the summons or has your Honour addressed that issue?

HIS HONOUR: I have not addressed it. Do you press it?

MS MAHARAJ: I press it, your Honour.

HIS HONOUR: Why should I in effect declare him vexatious?

MS MAHARAJ: The short submission, your Honour, is that in view of the history of the litigation which is contained in the chronology, we would respectfully ask your Honour.....

HIS HONOUR: I would not be minded to make an order of the kind sought by the Minister, namely that the applicant require leave of the Court:

to file any future applications with respect to or arising out of the Delegate’s decision dated 7 November 1996 and the Refugee Review Tribunal’s decision dated 19 May 2000.

I express no view upon whether the course of events revealed in the successive applications made by the applicant would reveal a basis for the making of such an order. That is a large question upon which I do not think it necessary to embark. It is sufficient to say that the powers of the Court to deal with applications which are without merit are sufficiently large as not to my mind to require at least for the moment the making of the unusual order which the Minister would seek.

Accordingly, that aspect of the matter is dismissed. Nonetheless, the order which I earlier announced will stand.

APPLICANT A16/2004: Do I understand it that I not bear the cost because of - - -

HIS HONOUR: No, the order I have made is that your application is dismissed with costs. There is an order for costs against you.

AT 3.28 PM THE MATTER WAS CONCLUDED