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Metohu, Ex parte - Re Minister for Immigration M40/1999 [ 2000] HCATrans 142  (29 March 2000)

In the matter of -

An application for Writ of Mandamus against THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

Ex parte -

ULIKS METOHU and MANJOLA METOHU

Prosecutors

HAYNE J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON WEDNESDAY, 29 MARCH 2000, AT 9.35 AM

Copyright in the High Court of Australia

MR A.M. FLOWER: If your Honour pleases, I appear for the prosecutors. (instructed by Basil Nuredini)

MR R.R.S. TRACEY, QC: If your Honour pleases, I appear on behalf of the respondent Minister. (instructed by the Australian Government Solicitor)

HIS HONOUR: Now, Mr Flower, where do you say this proceeding is up to?

MR FLOWER: Your Honour, my learned instructor was informed last night, and I have been informed by Mr Tracey this morning that, pending the outcome of Epeabaka, it is desired by the Minister that this matter be held over; this matter similarly dealing with the question of reviewability on the grounds of natural justice. This is slightly different in that this deals with the delegate's decision rather than an RRT decision but I concede that should, for example, this Court decide that the RRT has no need to accord natural justice, then it would be a pretty fair argument to say that the Minister's delegate - - -

HIS HONOUR: Is there any separate issue or separate light that this application would cast on this general question of procedural fairness, natural justice and its application in the Migration Act? What I have in mind being is there any advantage in making this application returnable with Epeabaka? At least, at first blush, there would seem to me to be advantage if, but only if, there were some twist or addition to the issues that would fall before the Full Court?

MR FLOWER: The only thing that comes to mind, and it is not something I had prepared for the answer to that question this morning, your Honour - the only thing that comes to mind off the top of my head is that by reason of the fact that these particular applicants were out of time to appeal to the RRT, we may not, in this instance, be concerned with an RRT reviewable decision in the sense that the restrictions in 476 et cetera come into play. Now, that is - - -

HIS HONOUR: Yes. I am not sure that that is right.

MR FLOWER: Well, that is completely off the top of my head and that is the only thing that comes to mind that I could agitate against the view that your Honour seems to provisionally hold.

HIS HONOUR: Yes. Well, I hold no view in Metohu. If the parties are content to leave the matter stand out of the list, I am not going to rush around finding work for the Court to do. There seems to be enough on the plate at the moment. But if there were some advantage in putting it into the Full Court to be heard at the same time as Epeabaka then so be it, let us take that advantage. None occurs to me but I do not want it later thought that "Oh, if only we had had it heard at the same time, we could have also dealt with the closely related by slightly different issue", whatever it may be. So, it is a genuine open-ended question rather than a statement in the form of a question, Mr Flower.

MR FLOWER: Yes, your Honour. I think my preference would be, without any great theoretical basis for saying so, that I would prefer to have the matter stood over, simply on the basis that I really had not considered the point.

HIS HONOUR: Yes, thank you. Well, Mr Tracey, what do you say is the better course to adopt?

MR TRACEY: Your Honour, until I came here this morning, I was of the mind that it ought to be stood over pending the outcome of Epeabaka but, on reflection, there is this important difference to which our friends adverted and that is that this case involves the decision of a delegate. Epeabaka involves a decision of the Tribunal. Now, under the Act there are separate prescriptions of procedures to be observed by a delegate and by the Tribunal.

Now, it may be that if this Court were to determine that, for example, the code of procedure that attaches to the operation of the Tribunal is such as to exclude the operation of common law natural justice, it might subsequently be argued in a case such as the present that that decision does not bind in respect of the code that applies to delegates. So that, on reflection, your Honour, I think there is merit in the suggestion that this matter be referred to a Full Court together with Epeabaka so that the whole gamut can be dealt with at the same time and preclude that sort of further argument.

HIS HONOUR: Is this one, though, in a state where it is ready to go to a Full Court? Have we got to the point where it is clear there is no factual controversy about what happened and the grounds have been given suitable attention? You understand the reason for my asking?

MR TRACEY: I understand entirely, your Honour. I think the answer is yes, but obviously that can only be given as a certain answer once I have had the opportunity to talk to my friend and sit down and see if we can construct an agreed statement of facts and a chronology.

The other aspect to this case that your Honour will recall from the last time was that your Honour - and it is really the only reason, I think, originally it was held over to today, was that there was a question about whether it might also serve as a vehicle in relation to section 417.

HIS HONOUR: The answer is it cannot, can it?

MR TRACEY: No, that was the view we took, your Honour, but I thought it wise to alert your Honour to the fact that that is hanging on it as well and your Honour might want, in any orders, to discriminate between the natural justice point and the 417 point.

HIS HONOUR: The choices in this matter are, I think, at the moment only between stand out of the list generally or go into a Full Court. Now, whether it is go into a Full Court to be heard and determined immediately following Epeabaka or simply to take its place in an undifferentiated list of matters in the Full Court, I hold no view and, in the end, I suspect, that will be the Chief Justice's decision, not mine.

There is this further consideration about these matters which are not, at least readily, to be dealt with by a remitter. It is as well that finality be brought to them as efficiently as can be done rather than finality occurring in a two-stage process of a single Justice deciding the matter and then an appeal. It may be that it would be the more sensible use of the resources of the Court to refer them into a Full Court for hearing once for all. Obviously, then, questions of factual controversy become quite significant. Now, what do you suggest we do about Metohu this morning?

MR TRACEY: Your Honour, perhaps the answer is that we ask your Honour to adjourn it for a short time so that the parties can seek to agree on a statement of facts and a chronology and that we would then seek to come back before your Honour perhaps with some agreed orders along the lines that your Honour has just made in Epeabaka with a view to having the matter brought on.

HIS HONOUR: Now, I assume that putting together a statement of agreed facts and the like is a process of days rather than hours, is it?

MR TRACEY: Yes.

HIS HONOUR: Yes. All I had in mind was that it is not a case where I could say to you, "Look, go away until 3.30 and" - - -

MR TRACEY: No, I think it would require - - -

HIS HONOUR: No, no, not in the least to be taken as criticising the fact that it cannot be done in that time but I would not want to miss the opportunity if, contrary to my impression, it could be done. I think, in the light of the discussion that we have had, the better course to adopt is simply to stand it out of the list with liberty to either party to bring on, on 3 days notice. If the parties can agree upon facts or if one party wishes to further prosecute the idea of reference into a Full Court, then it will be for the parties together or that party, singularly, to bring it on and we will deal with it.

MR TRACEY: If your Honour pleases.

HIS HONOUR: Are you content with that course, Mr Flower?

MR FLOWER: Yes, I am, your Honour. Can I just flag one issue? Might my position on costs be respected for my appearance this morning; simply an order that the costs be reserved?

HIS HONOUR: Yes. What I would have in mind is simply stand the matter out of the list generally, liberty to bring on, on 3 days notice in writing to opposite parties; reserve costs and certify. Would the parties be content with that?

MR FLOWER: Thank you, your Honour, that is acceptable to us.

MR TRACEY: Yes, your Honour.

HIS HONOUR: Very well, thank you.

AT 9.46 AM THE MATTER WAS CONCLUDED