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Lu, Ex parte - Re Minister for Immigration & Multicultural Affairs M42/2000 [ 2000] HCATrans 400  (23 June 2000)

In the matter of -

An application for Writ of Prohibition or for an Injunction or for orders in the nature of Certiorari against the MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

Ex parte -

HO SONG LU

Prosecutor/Applicant

HAYNE J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 23 JUNE 2000, AT 9.31 AM

Copyright in the High Court of Australia

MR T.V. HURLEY: May it please the Court, I appear on behalf of the prosecutor and applicant in this proceeding. (instructed by Haines and Polites)

MR J. BASTEN, QC: I seek to appear for the Minister, if your Honour pleases. (instructed by Australian Government Solicitor)

HIS HONOUR: Yes, Mr Hurley.

MR HURLEY: Your Honour, I have prepared for the assistance of the Court, and I have given to my learned friend, a document entitled "Working Documents". It draws together the exhibits that were the material before the Minister when the Minister made the decision.

HIS HONOUR: Yes.

MR HURLEY: They are the exhibits that are in the affidavit brought together in one working document to assist your Honour.

HIS HONOUR: Yes. Can I, before we go too much further into the matter, see whether I understand the broad nature of the case that is sought to be made, before coming to the question of what then we should do about it. As I would understand the position, it is this, and I will be grateful if counsel will, in the end, correct any evident errors that emerge from this description. The applicant, born in 1969 in Vietnam, came to this country in 1982 aged about 13 years. He then became a permanent resident. All the members of his immediate family are Australian citizens and, as far as the evidence goes, he retains no connection with Vietnam, indeed there is said to be some doubt about whether Vietnam would accept him if he were to be returned there.

At age 22 he was convicted of various offences and sentenced to imprisonment. One year later he was convicted of further offences committed while he was in prison. The applicant and the AAT described these offences committed while in prison as being minor drug offences. In 1997 a decision was made to deport him, but not those who had participated in the earlier criminal acts of which he had been convicted. In June 1998, the AAT set aside that decision. The Minister moved to challenge that decision of the AAT in the Federal Court, but later abandoned that proceeding. In October 1998, notwithstanding that the AAT had concluded that the applicant should not be deported, the Minister decided, one, that he is not of good character; two, to cancel his visa; and three, to declare him to be an excluded person.

The questions which you seek to agitate, as I understand them, are: were those decisions which no reasonable decision maker could have reached, thus bespeaking error of what might be called the last kind identified in House v King, that is, an error of law of a kind that can be discerned only from the unreasonable nature of the decision? Were the decisions made having regard to relevant considerations and without regard to irrelevant considerations? Now, so far as you are concerned, Mr Hurley, does that capture the essence of what this case is about?

MR HURLEY: Yes, your Honour, the essence of it.

HIS HONOUR: I understand that there are, no doubt, some frills and flounces which would need to be added to it, but we now have pending in this Court application for special leave in relation to proceedings that were taken in the Federal Court in connection with some, or perhaps all, of the three decisions last identified, is that right?

MR HURLEY: Yes, your Honour.

HIS HONOUR: That special leave application is in an early stage of preparation?

MR HURLEY: Yes, your Honour.

HIS HONOUR: Yes. What do you say I should do, in this application, bearing in mind that it would be unfortunate, I think, if the two applications now made in this Court somehow engaged in a game of leap-frog or otherwise fell out of a degree of synchronicity. What, in the end, do you say I should do today in relation to the present application that you seek to make?

MR HURLEY: Your Honour, we understand the application is listed for the final hearing of the question of whether an order nisi should issue, but the - - -

HIS HONOUR: But it is open to me to direct that the application be made by a notice of motion returnable before a Full Court.

MR HURLEY: Yes, your Honour.

HIS HONOUR: It would therefore be open to me to direct that it be made returnable before the Full Court that will hear the special leave application, at least in the first instance. That is a course that would be open, thereby presumably lessening the chance of leap-frogging. I could hear and determine the application for order nisi through to an end and you win or lose. What course do you say is the preferable course for me to pursue?

MR HURLEY: Your Honour, the course we seek is that your Honour embark upon determining whether or not there is an arguable case for an order nisi.

HIS HONOUR: Let it be assumed simply for the purposes of the present, what might be called, procedural debate, that I were to be persuaded that some, but not all, indeed perhaps even one, but not other, of the grounds that you advance have a sufficient degree of arguability to warrant a grant of order nisi. Where, then, is this set of proceedings going to go vis-a-vis the special leave application?

MR HURLEY: In that event, your Honour, we would ask your Honour to entertain granting interim relief to either suspend the Minister's decision or grant the parties time so that I can speak to my learned friend, because there may be another way of addressing the interim period and otherwise adjourn the matter to the Full Court that hears the special leave application. What is against us is that there is no arguable case.

HIS HONOUR: Yes, I understand that.

MR HURLEY: If it were established that there was one, we would then ask your Honour to grant us - - -

HIS HONOUR: But then that is punting it over to the Full Court which is going to hear the special leave application on a special leave day. Better perhaps, to avoid the possibility of complaint that my disposition of the order nisi stage is attended by error, simply to return the whole thing before the Full Court that will hear the special leave application, but there is perhaps a logically prior question which we also need to bear well in mind. As I understand from the amended draft order nisi there is an application made for orders that, at least, are in the nature of discovery. You want the Minister to put on an affidavit about the treatment of the co-offenders. Is that pressed?

MR HURLEY: No, it is not, your Honour. It is not a question for this Court to decide; it is not pressed.

HIS HONOUR: Yes. Then the material upon which you would move for order nisi and order absolute is now all before the Court?

MR HURLEY: Yes, your Honour.

HIS HONOUR: Yes. It may be unorthodox, but convenient perhaps, to hear Mr Basten very briefly on these procedural aspects of the matter, rather than on any substantive debate about the sufficiency of the grounds. As I understand it, he contends your grounds are without substance sufficient to lead to a grant of order nisi, but understanding that to be the Minister's position, there may be advantage in hearing from him, but is there something you want to add before I turn to Mr Basten in that way?

MR HURLEY: Your Honour asked whether the material was complete. Well, in relation to the special leave application, I - - -

HIS HONOUR: There are more steps to go in the leave application and you might just find yourself on a timetable that will bring that to a head rather promptly.

MR HURLEY: Your Honour, we would welcome that, but the point I was going to make is that, in the special leave submissions - - -

HIS HONOUR: I think there may have been, in parliamentary terms, hollow laughter from members opposite at that point, Mr Hurley, but there we are; that is an uncharitable view. Yes.

MR HURLEY: Your Honour, just in relation - to this affidavit are exhibited the explanatory memorandum and the first reading speech or the second reading speech of the relevant legislation under which the Minister made his decision.

HIS HONOUR: Well, you can get all those before a court without affidavit anyway, I would have thought.

MR HURLEY: That is other material, your Honour, but because that material relates to the construction or the power which we raise as a question of law, and have raised in the courts below and in the special leave application.

HIS HONOUR: But, so far as you are concerned, is all the factual material that you want for your application now on?

MR HURLEY: Yes, your Honour.

HIS HONOUR: Yes. Thank you. Well, Mr Basten, understanding as I do that your essential contention is it never gets to the threshold of order nisi, can I say to you what concerns me a little is that even if I were to accede to that submission, what would then go forward may be appeal against that, married with the special leave, and really have we advanced anywhere sufficiently, either for the convenience of the Court or for the disposition of the true controversy between the parties?

MR BASTEN: Yes. Your Honour, I do not know that I have a ready answer to that. I must confess that - - -

HIS HONOUR: I was waiting for one, Mr Basten, that is why I have called on you.

MR BASTEN: Yes. I keep sort of perhaps disappointing people this morning. The reason I laughed before, and I did not mean to be offensive to my friend certainly, your Honour's comment about the timetable in relation to the special leave application may have followed from a paragraph in our written submissions. Since those were drafted we have received a summary of argument, so the timetable would actually be on our side rather than - and we would, of course, comply with any - - -

HIS HONOUR: I understand. Could I say as to that that the next leave day in Melbourne is September. I am not, I underline not, certain that you could get into September; you may. It depends on the demands on the list from other matters more than anything.

MR BASTEN: Yes.

HIS HONOUR: I think the parties could be given a timetable that would ready them for September, but I would not want you to assume that September is a certain outcome.

MR BASTEN: Yes. Well, obviously I think both sides are concerned, your Honour, about an applicant in custody or in detention, more correctly. We, for our part, of course, would accept a date anywhere in the appropriate timetable the Court has for its sittings in Sydney and Melbourne or Canberra, as the Court thought fit.

HIS HONOUR: And we have, of course, Adelaide in August.

MR BASTEN: Yes.

HIS HONOUR: I am not sure how full the Adelaide list is even, but that is at least a theoretical possibility.

MR BASTEN: Yes. What I was going to say about the other matter your Honour raised was simply this. It had occurred to me that there was a potential difficulty and it arises, of course, not only in this matter. The difficulty that I foresaw, though, in dealing with it, otherwise than simply accepting one, because of the bifurcation in the Migration Act, had to follow these two procedures, was really the convenience of the Court. I just wondered whether in practical terms - - -

HIS HONOUR: That is a matter very much under the control of those who ultimately instruct you, Mr Basten.

MR BASTEN: Yes.

HIS HONOUR: It is not a matter which seems to have loomed large in their considerations.

MR BASTEN: Yes. Well, I have read Justice McHugh's comments and other members of the Court on this topic and - - -

HIS HONOUR: Yes. I shall not add to them but simply refer to them.

MR BASTEN: Yes, but in terms of the judicial practicalities though, I just wondered really whether this was a sort of proceeding which could realistically be dealt with on a special leave day, given the time constraints.

HIS HONOUR: Well, it may be, you see, that the parties would then have to put their submissions in writing.

MR BASTEN: Yes.

HIS HONOUR: One possible outcome of the leave day process would be that the matter would be referred into an enlarged panel.

MR BASTEN: Yes.

HIS HONOUR: But if, for example, the Court were persuaded that you were right that this is simply not an order nisi matter, it is plainly clear that this application must fail, then it could be brought to an end then and there.

MR BASTEN: Yes.

HIS HONOUR: If it were not so clear, and without having had the benefit of hearing from you, I must say that there are at least some oddities about the course of events which suggests that there may be something to say about reasonableness, perhaps less so on relevant/irrelevant considerations - I do not know - then what are we to do?

MR BASTEN: Yes. Well, what I was going to say, that view would be predicated upon your Honour making a determination today, for example, about arguability, saying there was sufficient arguability on one or - one point is sufficient for the purpose of this discussion. There would then be a matter to be referred to a Full Court. One then asks, I suppose, whether that hearing should take place prior to the special leave being dealt with.

HIS HONOUR: Well, why not in conjunction with, given that, as I understand your submissions, you say that significance is to be attached in the prerogative relief proceedings to the grounds that were taken or not taken in the Federal Court proceedings and that at least seemed to me possibly to raise questions about not only what ground was taken, but has the ground been properly disposed of by the Federal Court proceedings.

MR BASTEN: Well, yes, except that I suppose we would say if it was a matter which could probably have been raised below, and given the timing of the application, your Honour would not be minded to deal with it in this proceeding at all. Your Honour would in that circumstance have remitted it to the Federal Court, but if the opportunity had been available for it to be dealt with in the Federal Court and that opportunity had either been unsuccessfully taken or not taken, then as a matter of discretion your Honour would not remit it and that would be a reason for refusing the order nisi.

HIS HONOUR: That seems to me at first blush to be a question of some size and importance, how we are going to deal with the fact of this bifurcation of jurisdiction and what legal consequences follow from it.

MR BASTEN: Yes. Well, that was another aspect of the matter I suppose I was going to put to your Honour and it may be that what I am saying will give more substance to your Honour's concern about an appeal, even if you were with me on the substance of the argument. Wednesbury unreasonableness does not appear at the forefront of the grounds but it is contained in one ground at least. Wednesbury unreasonableness itself raises an interesting question as to its relationship with the error of law ground which is still to be found within 476(1) of the Migration Act.

At the end of the day I would make the argument your Honour foreshadowed, but if your Honour were of the view that that was the kind of issue which really should be dealt with by the Court which is considering the special leave application, then I would understand the force of what your Honour was putting. The special leave application - I do not know whether your Honour has had a chance to look at it, but the special leave application focuses on a different issue, namely whether the two procedures available to the Minister, deportation and cancellation, are properly to be treated as entirely separate - - -

HIS HONOUR: And whether it is open to make decisions which the applicant would describe as being contrary decisions, you would say simply are decisions under different legislative streams.

MR BASTEN: Yes. Yes, that is so.

HIS HONOUR: Yes.

MR BASTEN: Now, I must confess that I had not read the way that the manifest unreasonableness point was put in this application as being closely related to that issue, but I may be wrong.

HIS HONOUR: Again I am a little fearful of the way in which the argument may develop.

MR BASTEN: I understand your Honour's point.

HIS HONOUR: And at the moment the most pressing fear I have is the notion of leap-frogging, that that which emerges in one application somehow reflects on what happens in the other application and the two are not being disposed of properly in step.

MR BASTEN: Yes.

HIS HONOUR: Perhaps those fears are entirely baseless. I just do not know at the moment.

MR BASTEN: Yes. Well, I understand your Honour's concern, particularly in relation to the fragmentation in a sense. The leap-frogging is perhaps another aspect of it. It is simply having the two collateral matters dealt with together in a way that would allow this Court to consider constructively whether it was fair to say that something could or was dealt with in the Federal Court and, therefore, should not be considered on the nisi application.

HIS HONOUR: Yes.

MR BASTEN: Your Honour, to some extent I think we are in your Honour's hands because, obviously, this is an issue which can arise in a number of these applications and we are really in the Court's hands as to how they should be dealt with. I know that it is not always so because there is not always a special leave application filed at the same time.

HIS HONOUR: I think that this one really does take on an unusual aspect because of the other pending proceeding, but can you point me to any disadvantage which - obviously disadvantage which your client would suffer would be a matter to which I should pay attention - but any disadvantage that you standing there on the spot could think might be relevant to the course I take?

MR BASTEN: I think from our perspective, your Honour, and obviously we are concerned about the interests of my friend's client too, the only concern would be that there would be an extended period in detention because this Court would have to find a date when it had more time than otherwise available to it and that might extend the period beyond that which one might otherwise expect, but that is the only sort of disadvantage I can see to the course your Honour is considering.

HIS HONOUR: Yes. As to timing, Mr Basten, I have no view about and no information about whether Adelaide is even remotely possible.

MR BASTEN: Yes.

HIS HONOUR: Let it be assumed for the purpose of debate that we were looking for a special leave day in which these two matters would truly be treated as two matters such that the parties would have 40 a side. The parties should not, I emphasise, order their affairs on the assumption that a Full Court hearing it will give them 40 a side rather than 20, but from your end, could you be ready for an Adelaide sittings which are second week August, week commencing 7 August?

MR BASTEN: Yes, your Honour.

HIS HONOUR: What steps have we still got to take? You have got to answer - - -

MR BASTEN: Yes, we have to file a summary of argument in the special leave application, which I think we have 21 days for and then there is a seven-day period for reply, which would take us through to late July.

HIS HONOUR: Yes. We have then got to get books up. We may - - -

MR BASTEN: I would not have thought that was difficult, your Honour, from - - -

HIS HONOUR: No, but it may mean that we would have to pull back your time for argument in answer - - -

MR BASTEN: Yes, I was going to say that.

HIS HONOUR: - - - back to 14. Now, is that likely to produce a problem from your end, do you think?

MR BASTEN: We would accommodate that, your Honour.

HIS HONOUR: Yes. That would leave the parties finishing their papers in the special leave on 14 July. That would give us three weeks clear before the Adelaide sittings commence. Now, I just, as I say, do not know whether Adelaide is a goer or even whether Melbourne is a goer in September, but if the papers are ready then there is no delay on that account.

MR BASTEN: I would have thought that would have been ample time to prepare an application book, your Honour.

HIS HONOUR: Yes. Is there any other aspect of the matter to which you would wish to draw my attention, Mr Basten?

MR BASTEN: I think not, your Honour.

HIS HONOUR: Yes. Well, Mr Hurley, you have, of course, heard the debate we have had. Do you wish to be heard against the proposition that, for the moment, I would give some directions about the preparation of papers in this special leave matter; I would direct that the application for prerogative relief be made by notice of motion returnable before the Full Court that will hear the application for special leave. I think that would be all I would need to do, given your telling me, as you have, (a) that the application for an order in the nature of discovery is not pressed and that the material that is now filed is all of the material upon which you would rely in connection with the facts.

MR HURLEY: Yes, your Honour. As your Honour and my learned friend discussed, the only two points we would make are that the matter proceed as expeditiously as possible and, secondly, your Honour, that the time in which it can be presented to a Full Court be flexible, your Honour, because - - -

HIS HONOUR: You must not order your affairs on the assumption that you will have more than 20 minutes in the first instance. The press of business on us is so large at the moment, and the number of leaves that we are getting is so large, that you must not for the moment order your affairs on any other basis.

MR HURLEY: Yes, your Honour.

HIS HONOUR: I understand why you say you want more, but do not assume, whatever you do, that you will get more than 20 minutes.

MR HURLEY: Then they will be terse submissions, your Honour.

HIS HONOUR: The written submissions can be quite full, but the oral submissions will have to go straight to the heart of it, and there we are. It may be that those who comprise the Full Court will be more generous than the dire warnings I am issuing, but I do not wish the parties to be under any misapprehension.

MR HURLEY: If it please your Honour.

HIS HONOUR: Now, let me think a moment about how these orders might be structured, but - yes, Mr Basten?

MR BASTEN: Can I just ask your Honour this, I am sorry to jump up again, but was your Honour envisaging that there would be further written submissions? Both parties have put in submissions on the order nisi. We, for our part, put them in before the order was sought to be amended.

HIS HONOUR: There has got to be another go at them, I think, Mr Basten.

MR BASTEN: Yes, I think that is right.

HIS HONOUR: Unless the parties were agreed that there should be no further go, I would propose, in any event, to give directions about sequential delivery of applicant/respondent/applicant submission.

MR BASTEN: Yes. Well, now, we are content with that because I was going to say our submissions are perhaps over-lengthy already but not complete, given the grounds which are now raised.

HIS HONOUR: Yes.

MR BASTEN: The other two points that your Honour may wish to consider is, firstly, whether - I have not really considered this - whether my friend needs leave to amend the order nisi and - - -

HIS HONOUR: What I thought I would do is, in framing the order that it be by notice of motion to a Full Court, actually recite the grounds that are to be taken in that notice of motion, so that the parties are, if you like, on notice of where the ground of disputation is to lie.

MR BASTEN: Yes.

HIS HONOUR: As to that, I just wonder, there may be advantage in looking for a moment at the draft order nisi because one feature of it that struck me arose under ground 3, Mr Hurley, and particularly ground 3(c) at page 3 of the amended draft filed 21 June. It said that there was a failure to take into account a relevant matter, namely "the reasons why the Administrative Appeals Tribunal.....decided deportation was not the correct or preferable decision". Do you confine your ground to a failure to take into account reasons, or is it intended that that ground should go so far as to say that there was a failure to take into account the fact of decision, rather than, or in addition to, the reasons which moved that decision maker, the AAT?

MR HURLEY: Your Honour, it is both. The fact of the decision and the findings of fact on material questions that the AAT came to - - -

HIS HONOUR: You see, it seems to me that 3(c) then may need amplification. It seemed to me that the way the case was being argued suggested that there was a contention either there or very close to the surface that said the Minister erred because he did not take into account the fact that the AAT had decided no deportation; next ground, the Minister erred in that he did not take into account the reasons that the AAT concluded there should be no deportation; and those two seem to me to be rather different.

MR HURLEY: Yes, your Honour.

HIS HONOUR: If you are going to mount two, then the grounds must reflect the fact that you are seeking to mount two. I think it would be more helpful if they were extracted in that way.

Another feature that struck me in your grounds was in ground 3(g) at page 4 of the same document. I assumed that ground to amount to the contention that the consideration not taken into account was whether it would be possible to remove the prosecutor applicant from Australia to Vietnam.

MR HURLEY: Yes, your Honour, he being a citizen of that country, it is - - -

HIS HONOUR: And Vietnam being the only possible destination? I have no view and have no understanding of what the position is, but, again, is the ground one that is he cannot be taken to Vietnam and that is the only place he could be taken; or is it, he cannot be taken to Vietnam and that is the likely place he should have been taken; or what? Now, again, these may be matters that involve me starting at shadows, but, again, I think some attention may need to be given to the way in which the ground is struck to make plain exactly what it is that it is said was not taken into account. The course that may have to be adopted, in light of these considerations, rather than having you drafting on your feet, which is always, I think, likely to produce error, that if I indicate to counsel the structure of the order which I would propose to make, if counsel then or their instructing solicitors or both could be good enough to then put the order together in a form such that it can be submitted to the Deputy Registrar initialled, that will avoid us sitting having an agonising drafting session with each correcting the punctuation and spelling, leave aside syntax, of the other. Not a rewarding pastime, I thought.

MR HURLEY: That would be convenient, of course, your Honour. If your Honour will just excuse me just while I ask my learned friend one question, speak to my learned friend?

HIS HONOUR: Yes.

MR HURLEY: Your Honour, if I could just raise one question with your Honour.

HIS HONOUR: Yes.

MR HURLEY: In our outline, we refer to a decision of the Full Court which is on the same provisions, decision of the Federal Court.

HIS HONOUR: Full Court of the Federal Court, yes.

MR HURLEY: We understand, although I have not been able to track down where, but the special leave, I believe, has been granted to that matter.

HIS HONOUR: Which one, Jia?

MR HURLEY: Jia.

HIS HONOUR: Jia, I am sure - well, at the moment I am challenged on it. I was about to say I am certain that Jia was granted, that the matter of Jia is the subject of leave.

MR HURLEY: The submission that I would make, your Honour, is that the legislation that concerns my client is the same as is before the Court in Jia and it might - - -

HIS HONOUR: But the issue is rather different, is it not? Is not Jia the case where the central debate concerns the consequences of, and proper understanding of, certain statements made by the Minister?

MR HURLEY: Yes, your Honour, that is the issue, but it is the same legislation. We make the submission it might be convenient if the Court that did that attended to this matter because it would be well apprised of the legislation.

HIS HONOUR: Yes.

MR HURLEY: Otherwise, your Honour they are the submissions.

HIS HONOUR: Yes.

Now, gentlemen, if I am to give directions about the sequence of arguments in the prerogative relief proceedings, you first, Mr Hurley, by what time would you put on your summary of argument?

MR HURLEY: There is an outline of the submissions filed, your Honour - a very short time.

HIS HONOUR: If I were to say by 7 July, and, Mr Basten, if you were to answer by, say, 21 or 28 July?

MR BASTEN: Yes.

HIS HONOUR: Which would seem, 21, perhaps, and reply by 28, would that be suitable?

MR BASTEN: Yes, yes, that is convenient, your Honour.

HIS HONOUR: Yes.

Now, subject to what counsel may say, both as to form and content of the orders, the orders which I would propose are as follows:

In matter No. M17 of 2000:

1. Direct the respondent file and serve his summary of argument on or before 4.00 pm, 30 June 2000;

2. Direct the applicant file and serve his summary of argument in reply on or before 4.00 pm, 7 July 2000;

3. Costs of these directions be costs in the special leave application;

4. Certify for counsel.

HIS HONOUR: In matter No M42 of 2000, the framework of the order I propose is as follows:

1. Pursuant to Order 55, rule 2 of the High Court Rules direct that the application for certiorari, prohibition and injunction and the application for extension of time under Order 55, rule 17 be made by notice of motion to a Full Court and, subject to any contrary direction of the Court or a Justice, be made returnable at the same time as application M17 of 2000 between Ho Song Lu v the Minister for Immigration and Multicultural Affairs.

2. Direct that the grounds of the notice of motion be substantially in the form annexed to this order.

3. Direct the applicant prosecutor file and serve his summary of argument in support of the applications on or before 4 pm 7 July 2000.

4. Respondent file and serve summary of argument in answer on or before 4 pm 21 July 2000.

5. Applicant file and serve any summary of argument in reply on or before 4 pm 28 July.

6. Reserve costs and certify.

I would propose that the grounds to be annexed to the order should be the grounds stated in the draft order nisi filed 21 June 2000, subject to the applicant amending, if so advised, ground 3 by adding as a further paragraph (d) or (ca), perhaps - but can we renumber them rather than engage in parliamentary counsel alphabetical neurosis, gentlemen - a ground to the general effect the fact that the Administrative Appeals Tribunal, by its decision of 12 June 1998, decided that deportation was not the correct, or preferable, decision for the same criminal conduct, and further amending the grounds by amending ground 3(g) in the draft order nisi filed 21 June 2000 by adding after the words "from Australia" the words "to Vietnam".

Mr Hurley, those proposals are not intended to confine your drafting of grounds of the kind that were discussed in argument. They are, however, intended to confine you to those amendments and none other. Firstly, Mr Hurley, have you anything to say about the orders proposed in M17 of 2000 - that is the special leave?

MR HURLEY: No, your Honour.

HIS HONOUR: What about the orders in M42 of 2000?

MR HURLEY: No, your Honour, I have nothing to say to them. Can I address your Honour on the amendments?

HIS HONOUR: Yes.

MR HURLEY: The point we would seek to make in paragraph 3(c) in terms of the reasons of the AAT are set out in our outline of submissions - - -

HIS HONOUR: I understand that, Mr Hurley. What I want you to do is get your ground precise.

MR HURLEY: Yes, your Honour.

HIS HONOUR: If push comes to shove, you might have to come back and have a debate before me about whether you can go forward on the amended ground, but really that would seem to be an exercise in futility. What I want is you to identify with clarity the ground on which you move because I do not want it said at the hearing of this matter, "Oh, please, your Honours, I want to change my grounds".

MR HURLEY: I accept that, your Honour.

HIS HONOUR: In effect, all I am doing is giving you a surfeit of procedural fairness in anticipation, Mr Hurley. Beware the judge who gives you a surfeit of procedural fairness, Mr Hurley.

MR HURLEY: I am well aware, your Honour. The point I am making is that that ground seeks to raise the findings which the AAT made, which are set out at paragraph 28 of our submissions - - -

HIS HONOUR: I understand that, but if you want to rely upon the bare fact of the decision, put it in as a separate ground. If you do not want to rely on it, fine, do not, the less grounds we have to deal with, the better.

MR HURLEY: Yes, your Honour.

HIS HONOUR: Mr Basten, do you have anything to say about M17 or M42?

MR BASTEN: In relation to M17, my instructing solicitor and I have a slight confusion. Did your Honour order us to file a summary of argument by 30 June?

HIS HONOUR: Yes.

MR BASTEN: I was going to mention one other point, and that is that my friend really needs leave in relation to his summary, given the length of it. That is obviously a technical matter, but is there any problem in giving us a further seven days. Your Honour - - -

HIS HONOUR: And slip the whole timetable down as seven so that you are putting in both your documents together?

MR BASTEN: Yes.

HIS HONOUR: There is obvious sense in that, I think, Mr Basten, unless Mr Hurley can point otherwise. It would seem that in M17 we should slip the dates to 7 July and 14 July so that you are putting in both your documents then, are you not?

MR BASTEN: No, we have another week.

HIS HONOUR: Oh, no, you are not.

MR BASTEN: I understand why your Honour is being tight on that because we do have to prepare an application book in that, but I would have thought if we had till 7 July, that would not have caused the problem with the application book. The index will be straight forward, so very - - -

HIS HONOUR: How big was the application book, the appeal book, rather, in the Federal Court?

MR BASTEN: Well, a special leave application book would only contain two judgments and the decision of the Minister. There is no tribunal decision, even.

HIS HONOUR: Then it should be fairly straight forward to put together, should it not?

MR BASTEN: It will be straight forward. There is a minute which accompanies - it may be that it should include this bundle of material that was before the Minister, but that is no longer than a tribunal decision, and the two judgments.

HIS HONOUR: So it should be a fairly straight - - -

MR BASTEN: It will be a straight forward matter.

HIS HONOUR: Well, then am I better, do you say, to give the applicant for prerogative relief till 7 July, both of your documents to go in on 21 July, and the replies in on 28 July? Would it be better to get them into synchronisation that way?

MR BASTEN: I would be content with that. It would certainly be simpler.

HIS HONOUR: What about you, Mr Hurley? Is that better?

MR HURLEY: Yes, your Honour.

HIS HONOUR: Subject then to those timing changes, Mr Basten, what about the other aspects of the order?

MR BASTEN: I have no concern about the other aspects, your Honour.

HIS HONOUR: Yes, and then, as I say, it would be up to counsel and/or their instructing solicitors to put together a draft of the order that can go to a Deputy Registrar, particularly with these amended grounds, and then we have no doubt of it.

MR HURLEY: Yes, your Honour. I hear my learned friend, to the extent necessary I ask for leave to file lengthy submissions - - -

HIS HONOUR: You can take that up with the Full Court. One has to hear the application for special leave. I wish you well in the task, Mr Hurley.

M17 of 2000, there will be directions as follows:

1. Direct the respondent file and serve his summary of argument on or before 4 pm 21 July 2000.

2. Applicant file and serve summary of argument in reply on or before 4 pm 28 July 2000.

3. Costs of these directions be costs in the special leave application.

4. Certify for the attendance of counsel.

In M42 of 2000:

1. Pursuant to Order 55, rule 2 of the High Court Rules, direct that the application for certiorari, prohibition and injunction and the application for extension of time under Order 55, rule 17, be made by notice of motion to a Full Court and, subject to any contrary direction of the Court or a Justice, be made returnable at the same time as application M17 of 2000 between Ho Song Lu v the Minister for Immigration and Multicultural Affairs.

2. Direct that the grounds of the notice of motion be substantially in the form annexed to this order.

3. Direct the applicant prosecutor file and serve his summary of argument in support of the application on or before 4 pm 7 July 2000.

4. Respondent file and serve summary of argument in answer on or before 4 pm 21 July 2000.

5. Applicant file and serve any summary of argument in reply on or before 4 pm 28 July 2000.

6. Reserve costs, certify for the attendance of counsel.

HIS HONOUR: If counsel and/or their instructing solicitors could be good enough to let the Deputy Registrar have, if it is possible to do so, an initialled draft of the order by close of business Tuesday. Would that be possible, do you think, gentleman?

MR BASTEN: Yes, indeed.

MR HURLEY: Yes.

HIS HONOUR: Yes, Mr Hurley, thank you. Close of business Tuesday, then that will solve that. Is there anything further that counsel wish to raise about the matters?

MR BASTEN: Not for our side.

MR HURLEY: No, your Honour.

HIS HONOUR: Thank you for your assistance, gentlemen. I will adjourn.

AT 10.30 AM THE MATTER WAS ADJOURNED