Ali v Minister for Immigration and Citizenship

[2010] HCATrans 174

[2010] HCATrans 174

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S96 of 2010

B e t w e e n -

MOSTAFA HOSNI MOHAMED ALI

Plaintiff

and

MINISTER FOR IMMIGRATION AND CITIZENSHIP

Defendant

Application for an order to show cause

GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 29 JUNE 2010, AT 9.51 AM

Copyright in the High Court of Australia

MR M.D. SEYMOUR:   May it please the Court, I appear for the plaintiff.  (instructed by Holding Redlich)

MR J.A.C. POTTS:   May it please, your Honour, I appear for the defendant.  (instructed by Clayton Utz)

HIS HONOUR:   Yes, Mr Potts.

MR POTTS:   Your Honour, this is the first return of my friend’s application.  My instructions are to concede the matter if your Honour is willing to make orders, and I have a proposed form of consent order, which I might hand up.

HIS HONOUR:   Yes.

MR POTTS:   I should perhaps indicate to your Honour the basis of the concession.

HIS HONOUR:   Let me just read it first.

MR POTTS:   May it please, your Honour.

HIS HONOUR:   Now, you move, Mr Seymour, on an affidavit affirmed by your client on 19 April.  Is that right?

MR SEYMOUR:   I do, your Honour.

HIS HONOUR:   That is the only affidavit.

MR SEYMOUR:   It is.

HIS HONOUR:   There are two exhibits.  Yes, that is right.  Yes, thank you.  Now, you wish to say something, Mr Potts.

MR POTTS:   …..not to if your Honour does not need to hear from me, but I thought it appropriate, given the nature of the matter, to indicate to your Honour the basis of the concession that is being made.  It is really in relation to ground 1(i) of my learned friend’s application.  This was a delegate’s decision refusing a spouse visa.  The delegate made conclusions about whether or not ‑ ‑ ‑

HIS HONOUR:   Stopping there for a minute, this matter has to come here because of the structure of 474 and so forth?

MR POTTS:   That is correct.  Yes, your Honour.  There is no jurisdiction below because it is a primary decision and that is one of the carve outs in the legislation that exists, so your Honour is the only Court that has jurisdiction.

HIS HONOUR:   Yes.

MR POTTS:   So, being a primary decision, my learned friend challenges that primary decision on a number of bases.  I am instructed to concede that there was a failure to comply with section 57.  Your Honour is probably more familiar with the analogue, section 424A.

HIS HONOUR:   Yes.

MR POTTS:   It is conceded that there were concurrent interviews which were held between the applicant, who is the husband, and his wife, and certain information was obtained from the wife at that concurrent interview.  That information obtained from the wife was used to found a number of conclusions which were adverse to the plaintiff in these proceedings and it is conceded that information was never put to the plaintiff.  It is conceded therefore that was relevant information within section 57 and, therefore, jurisdictional error would be established.

HIS HONOUR:   That seems to be correct.

MR POTTS:   May it please, your Honour.

HIS HONOUR:   Very well.  In this matter I make orders in terms of 1, 2 and 3 of the form of consent as signed by the solicitors for the parties and initialled and dated by me and placed with the papers.

MR POTTS:   As the Court pleases.

HIS HONOUR:   Thank you, gentlemen.

AT 9.56 AM THE MATTER WAS ADJOURNED