Appellant M70 of 2006 v Minister for Immigration and Citizenship & Anor

[2009] HCATrans 136

[2009] HCATrans 136

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S120 of 2009

B e t w e e n -

APPELLANT M70 OF 2006

Plaintiff

and

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Defendant

MR SEAN LEYDEN

Second Defendant

Application for an order to show cause

BELL J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 19 JUNE 2009, AT 3.52 PM

Copyright in the High Court of Australia

MR S.E.J. PRINCE:   If the Court pleases, I appear for the plaintiff.  (instructed by the plaintiff)

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

HER HONOUR:   Yes, Mr Prince.

MR PRINCE:  Thank you, your Honour.

HER HONOUR:   Not at all.  I am sorry, gentlemen, for the delay, but things were a little longer than were expected in terms of today’s list.

MR PRINCE:   I think the possibility of that was at least apprehended on the last occasion, your Honour.  On the last occasion the matter was stood over for two weeks to allow a process to be undertaken by the Department to consider some new information which had been advanced by my client.  That process will obviously impact on the application before this Court.  The outcome of that process was notified to the plaintiff at 12.30 today.  There had been two interviews which occurred over the telephone with the plaintiff, the plaintiff being at Villawood and there are two tapes, one 45 minutes long, one about half an hour long, copies of which were provided to those assisting me this morning which I have not had an opportunity to review, listen to or to consider. 

The plaintiff seeks a further adjournment for two weeks to allow this new material to be digested, considered, advice to be given and instructions to be taken as to what effect, if any, it has on the substantive issue or the substantive application made to this Court in respect of the earlier 417, 48B decision.  So, although the process which was envisaged on the last time there was a consent adjournment has been completed it was only completed today at 12.30.  The end of that process, so far as the plaintiff is concerned, really has not played out because the plaintiff really has not had an opportunity to give instructions on it and the like. 

Obviously, so far as the Minister is concerned, that process has played itself out to completion because the decision has been rendered and there is nothing more to do, but the end of the Minister’s process is really just the beginning of the plaintiff’s in terms of considering the impact that it will have on the substantive claim.  So that is the basis on which a short adjournment is sought, to allow that material to be considered, your Honour.

HER HONOUR:   I will just inquire as to the Minister’s attitude.  Mr Potts.

MR POTTS:   Your Honour, my instructions are to oppose the adjournment.  I accept, as my learned friend put to your Honour, that he or those assisting him only learnt of the outcome on the further ministerial intervention request at about 12.30 today, so I accept what he puts to your Honour from the Bar table that he has only had notice of this for a matter of hours.  Your Honour, the Minister’s attitude is this, that the plaintiff has since 2005 been engaged in a process of attempting to procure a visa to stay in Australia, principally a protection visa.  He has been through the delegate, the Tribunal and the various courts.  He has now had the benefit of six requests under sections 48B and 417, the last of which being finalised today.

My client and the officers of his Department are under a statutory duty under section 198(6) of the Migration Act to remove an unlawful non‑citizen as soon as is reasonably practicable.  The Minister’s attitude is simply this, your Honour.  There must be some finality to this process at some point.  In the case of sections which expressly provide in the Act, both sections 48B and 417, there is no duty to even consider exercising those powers.  It is really of no utility to grant a further adjournment and in the circumstances your Honour should refuse to do that.

HER HONOUR:   Mr Prince.

MR PRINCE:   Yes, your Honour, if I could briefly respond to that.  First, I have not gone into detail into the state of the law as to whether or not the present application would have reasonable prospects of success at this stage for the adjournment application given that it is only a short adjournment that is being sought to allow material to be considered, but I will do that if I need to.

HER HONOUR:   Mr Prince, I think you would be well advised to.  May I point out this to you.  When the matter first came before me a little more than two weeks ago it was brought on as a matter of urgency late on a Monday afternoon in circumstances in which I granted a short adjournment to permit you to prepare what you acknowledged to be a novel argument that you wished to advance.  You have now had two and a half weeks to give further thought to the way that argument is to be put.  But in circumstances in which the Minister had come to a determination, matters were in train for the plaintiff to be removed.  Your application was not without novel features to it.  Mr Potts, on the Minister’s behalf, submits there is a time for finality.  That is a very reasonable stance to take.  If you have good reasons for supporting an adjournment, you need develop them, Mr Prince.

MR PRINCE:   Thank you, your Honour.  The plaintiff agrees entirely that there is a need for finality.  The only question is at what point in time does that occur?  I have considered the arguments that were initially made in the application but, of course, your Honour will know that those arguments really can be broken into two parts.  The first is dealing with my friend’s submissions that there is effectively no justiciable controversy because there is no ability to judicially review the actions of a Commonwealth officer in this context.  I can deal with that. 

The second limb is more directly intertwined with the nature of the particular errors which are alleged, or particular jurisdictional errors, which are said to arise, as a matter of substance.  That second part is obviously going to be influenced by whatever has happened in the most recent determination by the Ministerial Intervention Unit because, say, for example, there was a claim in respect of the earlier decision that there was a denial of procedural fairness about a particular question and that has been overtaken by some action in the later decision which would have cured any procedural fairness defects, then that will obviously have to be accommodated. 

The new decision itself contains eight pages of single‑spaced reasoning which I have only had a very brief opportunity to review, but in my brief opportunity to review it, I can see that there may be difficulties that will need to be developed.  But rather than put the case to your Honour in dribs and drabs as to the substantive jurisdictional errors, in my submission, the adjournment is necessary so that I can deal with the substantive jurisdictional errors on this changing field, the shifting sands of the Minister’s decisions or the Minister’s Department’s decisions in one lot.

For example, I will obviously need to listen to the tapes of the interview between the applicant.  But I can deal with the first limb today, that is, what my learned friend says would be a knock‑out point, that is, there is no ability for this Court to judicially review these types of decisions because they involve a super discretion, as it were, at the end of the process.  So, if I could address your Honour on that main question, I am in a position to do that and I can provide your Honour with some brief written submissions which go to that point which I have provided my friend with, but it will take some time to deal with.

HER HONOUR:   Well, Mr Prince, in light of the Minister’s opposition to the further adjournment of the matter and given the history to which I have briefly referred, I am not minded at this juncture to accede to the application for an adjournment, so I will hear you on the application.  If you are successful in developing, as it were, the first limb of it, you may renew your application, but I certainly need to be satisfied in that respect before we come back to it.

MR PRINCE:   Thank you, your Honour.  There is always a difficulty in immersing into the case in the context of an adjournment application of negating the – my primary application is and always has been an adjournment application.  I will deal with those arguments in that context now to your Honour, if I may, and I will hand up some written submissions.

HER HONOUR:   Just so we are clear about it, Mr Prince, I have refused the adjournment.  You may raise the matter again, that is, you may make a fresh application for an adjournment.  If I am persuaded that there is substance to what I will describe as the first limb, that is, put another way, Mr Prince, that there is utility in you having an opportunity to give closer consideration to the reasons.

MR PRINCE:   Yes, thank you, your Honour.  Your Honour has received some written submissions some time ago from my learned friend.  Can I hand up some submissions which attempt to address some of the matters raised in that?

HER HONOUR:   Thank you.  Do you have a copy of these, Mr Potts?

MR POTTS:   Yes, your Honour, thank you.

MR PRINCE:   Your Honour, many of the submissions respond to submissions by my friend and deal with authorities upon which he relies.  If I could also hand up at this point, because it might assist your Honour, a bundle of the authorities that my friend refers to?

HER HONOUR:   Thank you.

MR PRINCE:   Would your Honour prefer if I were to sit down and allow your Honour time to read?

HER HONOUR:   Yes, I think so, Mr Prince, and I will just read through these and we can see how the matter is to be progressed.

MR PRINCE:   Thank you, your Honour.

HER HONOUR:   Yes, Mr Prince.  Perhaps you had better take me to this case.  You rely on a decision of Justice Tamberlin.  Is that in the bundle?

MR PRINCE:  It is not, your Honour.  I explained to my friend this morning that with everything else I had not had a chance to photocopy it.  It is the decision in Hicks.  I am sorry, your Honour, I do not have a copy of it.  The relevant passage is what I have extracted.  It is a very lengthy decision which is concerned with a challenge which was made to an alleged failure by the Commonwealth to provide consular protection to Mr Hicks who was a prisoner or a detainee at Guantanamo Bay.  The context of the case was that there was an application to strike out the proceedings brought by the Commonwealth and his Honour was considering that application.  The use that I seek to make of it is simply to indicate to the Court that it is not unknown to the common law and certainly not in Australia for issues of prerogative to be open to judicial review pursuant to section 75(v) subject to some limitations which might involve matters of high policy or the like.  I do not know if that is a controversial proposition, but ‑ ‑ ‑

HER HONOUR:   It seems as though Hicks is some way removed from the issues with which I am concerned.

MR PRINCE:  It is a different case, yes.

HER HONOUR:   One comes back to decisions such as that of the Full Court of the Federal Court in Bedlington v Chong (1998) 87 FCR 75. One sees there a reference to the concept that if an officer of the Commonwealth deliberately failed to comply with the guidelines, it seems to me the Court may leave open some basis for review.

MR PRINCE:  Once that door is open, it is hard to see why it should be only open that far.  There does not seem to be any analysis in the Full Court’s reasoning to support some indication of why it would be limited in that way.  Indeed, that is possibly because it was not really the way in which the matter was considered by the Full Court.

HER HONOUR:   I raise the matter, Mr Prince, because it was the very high point from your point of view as far as I could see.  Similarly, Justice Lindgren in Raikua v the Minister for Immigration and Multicultural and Indigenous Affairs (2007) 158 FCR 510 again seems to leave open the notion of redress in the case of bad faith or something of that nature. But one is looking at circumstances far removed from those before me on the evidence that was presented in support of the application.

What has happened since then is that your client has made a further application to the Minister under section 417 and section 48B.  I will come back to you in a moment about the significance of that, but it seems to me that neither Bedlington v Chong nor Raikua assist you greatly, Mr Prince, on the evidence that was tendered on the last occasion.

MR PRINCE:  That may bring us back into the interconnectedness of the first and second limbs, because I simply do not know whether it would be open to allege upon review of all the material on the tapes whether the most recent decision may have fallen within those categories.  I obviously cannot make that claim without having seen the material and considered it.

HER HONOUR:   It could go on forever.

MR PRINCE:  No, your Honour.  There is no indication of a further application being made.  An application has been made, considered, determined and rejected.  Without the intervention of the Court or some explanation or some development of a law in respect of judicial review of these types of decisions, it seems patently clear that any further application to the Department is also going to be rejected.  The state of affairs that we have now with the decision which was handed down this afternoon, in my submission, is likely to constitute at least the end of a factual matrix so far as decision‑making is concerned.

There is no suggestion that a further application has been made or is intended to be made.  There is no indication that my client is likely to be making any frivolous type of applications to the Court or attempts to remain in the country.  There is just no basis for suggesting anything like that.  In those circumstances, given that there has been a very substantial new decision which was made this afternoon, given that I have not had time to review it and given that, depending on a review of it and the supporting material that goes with it, there might be an issue that falls within those cases, it would be premature to shut the applicant out from dealing with a case where there is no knock‑out point on the side of the Minister. 

There is no authority which binds this Court which says these types of applications cannot be made.  In fact, all of the indications are the other way.  There is the application to which reference is made in my written submissions which is presently before his Honour Justice Hayne ‑ ‑ ‑

HER HONOUR:   I am sorry.  I have difficulty understanding the significance of that material extracted in your written submissions.

MR PRINCE:  The transcripts are part of that bundle of authorities which I handed up to your Honour so that your Honour has the complete list of authorities.  At the time of writing the submissions I had not seen the amended statement of claim in that case.  My friend just now, while your Honour was reading the material, provided it to me.  He had tried to provide it to me before coming into Court, but there was some question about whether he could do that.

That case seems to also involve a form of challenge to, in one limb, the exercise of the power under section 417 and section 48B by a former Minister, Andrews, and in another respect against the very same second defendant as in this case for refusing to put before the Minister a further request.  There is a complication in that case because in the second set of transcript it became obvious that the Minister had decided to consider an application for ministerial intervention personally and the parties are awaiting the outcome of that.

There is nothing to indicate in that transcript that his Honour Justice Hayne saw the decision of his Honour Justice Lindgren as a necessary impediment to the proceedings going ahead in the normal course.  Indeed, it seems that his Honour contemplates that the presence of the decision by his Honour Justice Lindgren might make the matter more appropriate for a Full Court rather than a single Justice.  But that is a long way from any suggestion that the existence of the reasoning of his Honour Justice Lindgren precludes any type of argument being made in this Court challenging the exercise of a power under section 417, section 48B or the anterior steps to it.

HER HONOUR:   Mr Prince, is this a difficulty?  What I have before me at the moment is an application filed on 1 June 2009 claiming the issue of constitutional writs on grounds that relate to the asserted failure of Mr Leyden, the second defendant, to “exercise his public duty”, that being a reference not to any duty imposed on Mr Leyden under the Act but a reference to evidence suggesting that Mr Leyden at least signed off on a submission concerning an application that your client had made asking the Minister to intervene under sections 48B and 417 of the Act.

MR PRINCE:   Yes, your Honour, that is correct.

HER HONOUR:   It is asserted in that application that Mr Leyden failed to construe the duty that was imposed upon him under the guidelines, that he did not consider the entirety of the application, that he failed to accord procedural fairness to the plaintiff and that his decision not to refer the plaintiff’s application under section 48B to the Minister was unreasonable and that he failed to take into account relevant considerations, being an assertion that the plaintiff’s case fell within the ministerial guidelines which were tendered on the first occasion when the matter was before me.

MR PRINCE:   Yes, your Honour.

HER HONOUR:   Some evidence was placed before me on that occasion which included Mr Leyden’s reasons and I think there was annexed to the affidavit the material that formed the submission which had been assessed by Mr Leyden.  No further evidence has been tendered today, but I understand the matter is being advanced on the basis that since Mr Leyden’s assessment of the application a further application has been made, being the sixth application under section 417 for ministerial intervention and that is, if you like, the operative determination.  Is that so?

MR PRINCE:   It is the most recent determination.  There is some confusion about how each of these seem to be separate applications, although regard is had to earlier applications.  Although the Minister says there have been six applications and makes the submission that the applicant has had his chance, the two most recent applications – certainly the penultimate application, which is the subject of these proceedings on the current state of the pleadings, and the most recent application, which it is proposed would be the subject of an amendment to include it into these proceedings upon review, advice, instructions and the like, never went to the Minister and have both been interceded by Mr Leyden.

HER HONOUR:   Given that the Minister is not under any obligation under the Act to even consider the application, given that the only application I have before me is what you describe as the penultimate application – the application, I think, that was assessed by Mr Leyden on or about 29 May last – given that the Minister says that he has a statutory duty under the Act to remove an unlawful non‑citizen pursuant to section 198(6) and that there is nothing before me beyond the material that was in evidence on the last occasion relating to the earlier application, accepting for present purposes, Mr Prince, that it may have been left open, notwithstanding there is no statutory duty on Mr Leyden, that nonetheless were he to fail to make an endeavour to comply with the Minister’s guidelines or show a want of faith in his handling of the application that there may be a basis for relief – accepting for present purposes that that may be left open – what is it that I am to do on the present application that is before me on the state of the evidence?

MR PRINCE:   Allow me a chance to amend it and put before the Court evidence of the decision which was handed down at 12.30 this afternoon.

HER HONOUR:   On what basis, Mr Prince?

MR PRINCE:   Your Honour, I have an affidavit which attaches the most recent decision, which I have provided to my friend this afternoon.  Your Honour, a strike-out at an early interim stage where an opportunity to put forward all of the evidence which is likely to be relevant would preclude my client from properly prosecuting his case in the Court.  The plaintiff should be entitled to have a chance to fairly consider a process which the Court last adjourned the application to occur.

Whilst I could hand up an affidavit now which has that decision annexed to it before your Honour, and at least have that evidence formally before your Honour, in my submission, one is then straying into, first of all, the second limb.  The case would have to be run on the run and as if it were a final case but without the safeguards that exist to litigants in running a final case in circumstances where, in my submission, the application as it stands at least is not unarguable, although ultimately it may not succeed.

HER HONOUR:   When you say the application is not unarguable ‑ ‑ ‑

MR PRINCE:   Can I explain that to your Honour?  There is a 76‑page submission which was advanced to the Department, which was never put up to the Minister.  My client still maintains that is a very important document, a very important submission which, for the reasons advanced in the application, has not been put before the Minister in a way which would make that decision subject to judicial review in this Court.

Now, irrespective of the last decision which has been made, the plaintiff still can run that case because if that 76‑page document was properly considered and put up to the Minister – even if it happened today – at least my client would have a chance before the person who actually is empowered to make a decision.  Ultimately the way in which the case is put at this stage by the Minister is to say that this cannot even be a matter, really, before the Court, it is so unarguable on the basis that because there is this super‑discretion down the track in the Minister which is non‑compellable, non‑reviewable, everything remotely associated with it gets that same protection.

In my submission, it is at least arguable that that misconceives the nature of the protection afforded to the Minister, because one has to take all of the elements of the statutory protection.  First, the power vested in a Minister is non‑delegable.  That means that if the Minister were to purport to delegate the function under 48B or 417 that would be contrary to the Act.  The decision‑making power or the protection from an obligation to consider making a decision vests in the Minister personally. That protection does not apply to the departmental officers who act as a filter.  Indeed, if there was no prospect of any judicial review of the officers who act as a filter, it is conceivable that the whole statutory regime could be frustrated because those officers could go off on frolics of their own and deliberately withhold material from the Minister or engage in other misconduct on a spectrum which might frustrate the statutory scheme.

HER HONOUR:   Accepting, Mr Prince, for the sake of this argument, that if there were a basis for contending that an officer within the Minister’s Department had engaged on such a frolic of his or her own making that there may be a basis for relief is one thing, but the matter that I am raising with you is, you moved the Court for relief on the basis of what is now described as the penultimate application.  That application, on the face of it, appeared to have been considered by officers within the Minister’s Department.  Nothing to which you have directed attention would suggest, having regard to the breadth of the guideline with respect to repeat requests, that that assessment was an assessment outside the guideline, or that the officer had acted in bad faith or something of that character.  So that what you now say is, “Well, I need an opportunity to parse and analyse the set of reasons that follow from my latest request to see if there might be grounds”, and that seems to me to be a difficult application to succeed on.  You must have had a chance to read the decision, Mr Prince.

MR PRINCE:   I have, and given the importance which it appears to be assuming, and I do not want to be pushed into – by the Minister, by the timing of his decision‑making process – a half‑baked analysis of what is a complicated decision in the context of other complicated decisions, but having read the material and the decision briefly and simply, there are at least a few matters that I have identified as causing concern.  I will provide your Honour with the affidavit of Luke Pistol which was affirmed 19 June 2009, and a copy has been provided to my friend.

HER HONOUR:   Is there any objection to the affidavit of Mr Pistol being read, Mr Potts?

MR POTTS:   No, your Honour, with this qualification.  I cannot read the handwritten file notes that are annexed to it, so if I could just reserve my position in relation to those, otherwise, no, your Honour.

HER HONOUR:   All right.

MR PRINCE:   My friend and I are in the same position in that regard, your Honour.

HER HONOUR:   Very well.

MR PRINCE:   Before I take your Honour to that, can I just address an earlier point that your Honour made just now.  Dealing with the two applications and two decisions as separate decisions for the moment and looking at simply what is before the Court, the current application before the Court does allege that the ministerial guidelines were not followed.  It does allege that the officer denied procedural fairness.  It makes allegations that the decision was unreasonable in a Wednesbury sense.

HER HONOUR:   I understand that, Mr Prince ‑ ‑ ‑

MR PRINCE:   That is going off on a frolic – but to say there would be only - sorry, your Honour.

HER HONOUR:   The matter that I am raising with you, Mr Prince, is this.  Having regard to the evidence that was tendered on 1 June and to the application, being the sole application that I have before me, to engage in a debate for present purposes about what I would describe as the outer edges of this area of judicial review, namely, the prospect that a Commonwealth officer acted in bad faith in relation to handling an application for ministerial intervention under section 417, or deliberately, as it were, flouted the guidelines, that may be one thing.  What I am directing your attention to is that I have not been taken to anything to show an arguable basis in relation to the grounds that are asserted in the application in respect of the evidence in relation to the penultimate application.  It may be that you are going to take me – I am not quite sure of the significance any longer of the penultimate application and it may be you need to consider amending your application.

MR PRINCE:   That is what I want to do.

HER HONOUR:   I understand that.

MR PRINCE:   That is why I made the application for the adjournment, so that ‑ ‑ ‑

HER HONOUR:   Mr Prince, so far that application has not succeeded for the reason I explained, but we need to ‑ ‑ ‑

MR PRINCE:   I understand, your Honour.  Can I address your Honour’s question simply?  The authority that I have referred to opens up at least the prospect that a lack of good faith would warrant intervention under 75(v), if that ‑ ‑ ‑

HER HONOUR:   Which authority is this?

MR PRINCE:   This is my reference to the decision of his Honour Justice Lindgren ‑ ‑ ‑

HER HONOUR:   Yes, in Raikua.  It seems to me he left that open.

MR PRINCE:   Yes.  Take that step.  Combine it with the fact that there is no authority which clearly closes the door in respect of any other aspect of judicial review.  Consider that it appears that at least there is a prospect that the Full Court of this Court might be considering these types of issues in respect of a matter which his Honour Justice Hayne dealt with ‑ ‑ ‑

HER HONOUR:   I have not grasped the facts of that matter.  I simply do not understand the significance you place on it or the issues that his Honour has before him.

MR PRINCE:   Would your Honour just give me a moment.  My friend, who is also a party to those proceedings, has a copy of the amended statement of claim in that case.  Could I put that before your Honour.  My submissions were based on what appeared in the transcript of the argument that was occurring.  This amended statement of claim is that in the proceedings which his Honour Justice Hayne was dealing with in the transcript to which I have referred.  Could I take your Honour, for example, to paragraph 11(B) on page 4.

HER HONOUR:   Yes.

MR PRINCE:   That is the September 2007 decision which is referred to in the transcript.  That is a decision of the Minister, so that is at a higher level of immunity, as it were, in my submission.  Then the next limb, starting at paragraph 12, concerns an application made to the second defendant in that case who is also the second defendant in this case which was then the subject of a decision in paragraph 13, but no action would be taken.  That is called the December 2007 decision. 

Then if your Honour goes over to 15 and 15(A), there are grounds in there concerning procedural fairness but I think that is in respect of the September decision.  So that your Honour will see that at least there are some identity between the issues in that the anterior process of declining to refer a matter to the Minister is in issue in those proceedings.  There is nothing to indicate that the Court in those proceedings considered that such an application was hopeless, futile or should not be entertained by the Court.  To the contrary, it appears that his Honour Justice Hayne, when taken to the decision that my friend relies on of the decision of his Honour Justice Lindgren, acknowledged that that would probably be against the plaintiffs but saw that as a reason for referring the matter to a Full Court rather than from refraining from hearing the matter. 

So that, in my submission, for the purposes of the present application and keeping the case alive so long as it can be dealt with in a comprehensive way, in my submission, there is good reason for this case to continue to be entertained by the Court.  That is not saying that it should be the subject of endless adjournments or delays and the plaintiff frankly does not want that either.  The plaintiff would prefer to have the matter properly dealt with but with appropriate case management and the like.

HER HONOUR:   It seems to me that the matter needs to be approached on the basis that there has been a more recent assessment of an application both under 48B and 417 than the assessment made on 29 May which is in evidence in the earlier affidavit of Mr Pistol.  Is that the way to approach it, Mr Prince?

MR PRINCE:   Not entirely, your Honour, because the difficulty is with each new application for intervention under section 417 or 48B by nature contains new information in addition to previous applications.  So that the application which was made and for which this Court allowed an adjournment by consent to be considered, that, as I understand it, was not a restatement of the earlier application in toto but the provision of further material including a very recent letter of the general secretary of the opposition party in Sri Lanka, some police reports and some other material. 

So the decision which has most recently been made does not completely supplant and surpass the earlier decision but, rather, it deals with a distinct application made in respect of distinct new information.  It has the capacity, possibly, to remove some grounds from the existing application, for example, procedural fairness.  If a particular issue had been not notified to the applicant in the earlier process but now has been, then it is probably arguable that any denial of procedural fairness has been cured.

HER HONOUR:   I would have thought that might be arguable, Mr Prince.

MR PRINCE:   Yes.  So that the two decisions can be interrelated in that way, but that does not necessarily mean that the later decision is simply a consolidation of all of the earlier decisions plus the new material.  It is an assessment of the new material so that it is a fresh application, as it were.  If either one of those applications, or preferably both, ever made it to the Minister’s desk, then the applicant would obviously be satisfied.  But each decision is a separate decision possibly made by different people in terms of the reports which were provided.

HER HONOUR:   How do you propose to amend the present application if you were given leave to do so?

MR PRINCE:   Subject to reviewing these things carefully, I would propose to amend to include also a challenge to the second decision of the Ministerial Intervention Unit to not advance the material to the Minister.  Mostly it seems, from reading it, on Wednesbury grounds, because there was quite a lot of material in the most recent application and there are some findings which I must say strike me as being quite odd.

HER HONOUR:   A strong point, a Wednesbury point.

MR PRINCE:   No, I cannot say that at this stage because I have not heard the transcript.  There were two interviews which occurred over two days and we only got the sound recording this morning, so I do not know what was said.  It could be that something which has appeared in the decision was not put to the applicant during the course of the interview, but to do that I need to sit down and look at the decision, listen to the tapes, compare the two, see whether there is something that has not been put that could be put.

HER HONOUR:   Mr Prince, these submissions are directed to a contention that it is arguable that the assessment made by an officer within the Ministerial Intervention Unit is subject to judicial review on broad grounds, we have moved well beyond any suggestion that the Court would grant you your adjournment in circumstances where there was a contention that there was bad faith, as Justice Lindgren left open in Raikua, or something of that character, is that right?

MR PRINCE:   The current application does not contain any allegation of bad faith, that is true, but the reason I am being careful about my response to your Honour is because I simply do not know whether that allegation could be properly made in respect of the latest decision.  Obviously I have made my assessment that it cannot be made in respect of the earlier decision, depending on the interaction between the earlier decision and the later decision which at least were made formally by the same person, and that might change I do not know, but I do not want to be alleging other than good faith unless I have the time and proper grounds to do so.

My primary submission is that the words “bad faith” do not need to be there in order to have an arguable case that the possibility for judicial review exists, primarily for this reason. All of this comes back to 75(v) of the Constitution, and it is important to remember that. Whether or not there was a decision under an enactment, irrelevant for section 75(v) or whether or not the decision was only in bad faith, irrelevant for section 75(v), unless there is some privative clause which puts one into Craig v South Australia type territory, but that is not the case here.  There is a privative clause that exists ‑ ‑ ‑

HER HONOUR:   Yes.

MR PRINCE:   ‑ ‑ ‑ but whether or not it applies to a particular decision has been found to depend on the nature of the decision and in Plaintiff S157 it was held that a decision affected by jurisdictional error is no decision at all. 

HER HONOUR:   Here we are talking of the assessment made by an officer of the Commonwealth, pursuant to guidelines issued by the Minister, with respect to ministerial intervention in circumstances where it is common ground that the Minister could choose to refuse to entertain the application.

MR PRINCE:   Yes, and it is important – and ultimately at a full hearing there would need to be a question about what is the nature of this decision which is being made.  It is not like section 198 which simply involves a mechanical carrying out of something mandated by legislation by an officer.  It requires a decision‑making process to occur and it requires an assessment to take place and a decision to be made.  That officer does not have any express protections under the Act of immunity from judicial review.

Prima facie, he is a Commonwealth officer, he is performing his duties.  In those circumstances there is the potential for this Court to issue constitutional writs directed to him, which this Court does in the absence of any other statutory prescription on the basis of accepted common law notions of administrative or judicial review. 

HER HONOUR:   What is the accepted “common law notion”, as you put it a moment ago, Mr Prince, in relation to an assessment made by an officer within the Ministerial Intervention Unit in circumstances where the Minister has issued guidelines, including those that are in evidence before me, which are in very broad terms in relation to repeat requests, which in circumstances in which the Minister is under no obligation to even consider whether he will exercise the power, provide as in paragraph 17 of the guidelines?

MR PRINCE:   The Minister does not have an obligation, that is true, but we are not talking about the Minister, and in fact by issuing the guidelines the Minister has exercised a function under section 48B and 417 by providing a predetermination as to the circumstances when he will or will not consider an application.  Once those guidelines are promulgated, this is not a case where the Minister, something having been directly put to the Minister he decides to sit on his hands and make no decision at all and not entertain the application or ignore it.  This is a circumstance in which he has made a positive decision to issue guidelines to officers as to when matters will or will not be put before him. 

Now, there has been an exercise by the Minister of a power under 48B of 417 in that way, by advancing the guidelines.  The role of the Commonwealth officer in that process is to administer the guidelines which have been promulgated by the Minister.  That is no different from any other action by any other Commonwealth officer in administering the public duties that are entrusted to them from time to time by officers of state. 

Now, it would be extraordinary if it were to be accepted that because, for example, the Prime Minister could not be compelled to exercise the prerogative in certain instances, that every action of a Commonwealth officer at every point at every stage that might be anterior to that ultimate non‑reviewable power would itself be beyond the scope of section 75(v). There is just nothing in the Constitution that would suggest a cascading benefit of immunity from review. It is well established that the question of whether or not review will be appropriate depends on the nature of the decision‑maker.

In the present case, if the review was sought from a decision of the Minister to not entertain the application, that is one type of decision, and there may be different requirements of procedural fairness applying to that, but it is ‑ ‑ ‑

HER HONOUR:   Mr Prince, I am just getting a little lost.  Can you tell me what it is that you say is the arguable case for the relief that you claim and the precise amendment that you seek?

MR PRINCE:   It is arguable that Mr Leyden is subject to the issue of constitutional writs under section 75(v) because of the performance of his duties as a Commonwealth officer.  It is arguable that Mr Leyden, in performing those duties – or at least the material before the Court indicates recognised grounds of judicial review which can give rise to constitutional writs, for example, a denial of procedural fairness and the like.  It is important to remember – I am sorry, your Honour.

HER HONOUR:   Mr Prince, it is this.  From much earlier this afternoon I raised with you on my reading of Bedlington v Chong and on Raikua that they provide some support for the view, notwithstanding Mr Potts’ submissions, that there may be circumstances in which, notwithstanding the absence of any statutory power being performed by an officer of the Ministerial Intervention Unit, relief might be available in limited circumstances in relation to dealing with requests for ministerial intervention.

So to respond to the question I put to you a few moments ago by saying to me it is arguable that the second defendant is subject to the issue of constitutional writs under section 75(v) does not really assist me.  What I am looking to understand, on the strength of the application that is before the Court, is the arguable basis for the relief that is claimed.

MR PRINCE:   Your Honour, it is arguable that the scope of section 75(v) applying to a Commonwealth officer is not only confined to a failure to exercise the power in good faith.  There is no clear authority which suggests that 75(v) is so limited in respect of actions of Commonwealth officers in exercising public duties.

HER HONOUR:   Can you point me to anything in the evidence that would give colour to the grounds of complaint in the application as it is or if it were amended with respect to the amended application?

MR PRINCE:   Yes, your Honour.  This really is, I suppose, the second limb of the argument as I described it at the beginning, that is, the substantive issue of whether or not there is any potential jurisdictional error in this case.  Can I ask your Honour to go to the first decision of the second defendant, which is exhibit A, your Honour, I am told.?

HER HONOUR:   Yes.

MR PRINCE:   If I could ask your Honour to go to, for example, page 7?

HER HONOUR:   Is this page 7 of – the document is ‑ ‑ ‑

MR PRINCE:   At the top of the page, your Honour, there is a number at the top of the page in the middle.  This is exhibit A, a minute.

HER HONOUR:   I am sorry, we may be looking at different ‑ ‑ ‑

MR PRINCE:   This is exhibit A, your Honour.  It is a minute.

HER HONOUR:   Yes, I am sorry.  Just bear with me.

MR PRINCE:   Yes, your Honour.

HER HONOUR:   Exhibit A is the?

MR PRINCE:   I will call it the penultimate decision of Mr Leyden.

HER HONOUR:   Yes, all right.  Page 7.

MR PRINCE:   I am dealing with that first, your Honour.

HER HONOUR:   Yes, all right.

MR PRINCE:   New material was provided.  At the top of the page your Honour will see an identification of what that was.  That included a letter or a report about an incident that occurred to the plaintiff’s 80‑year‑old mother during the April 2009 elections in Sri Lanka.  That information broadly was that she had been targeted by people who were political opponents of the plaintiff, that she had suffered an injury to her eye but she had been hospitalised and that her house had been burnt down in April 2009.

At the bottom of the page on page 7 the decision‑maker deals with the alleged attack on the mother, amongst other things, and says:

This raises further concerns in relation to the credibility of [the plaintiff’s] assertions.  However, even if these claims were to be accepted, they do not enhance [the plaintiff’s] chances of making a successful protection claim.  They may indicate that he has suffered harm in the past, but do not demonstrate a risk that he would do so in the future, for a Convention‑reason.

That decision or that reasoning is simply unreasonable in the light of the material that is accepted for the purposes of it, namely, a very recent attack on the plaintiff’s mother by his political opponents, and would represent a failure to consider the material as against the guidelines in substance.  Then if your Honour goes over to page 8 at the top of the page, the decision‑maker says that the plaintiff:

has provided no evidence that he continues to be a supporter of the [opposition party], and would continue to be, if he returned to Sri Lanka.

That was an omission that was not ever raised with the plaintiff.  The affidavit of Mr Pistol makes it clear, that the plaintiff had no idea that that was an issue, so that there was a denial of procedural fairness in respect of that issue.  There is also the potential for really a substantive failure to consider the application because if one judges an application by what it does not contain in circumstances where the applicant had no idea that that was what was being looked for, then the ground can be shifted constantly to look to identify things which have not been raised and then hold that against the plaintiff.

On page 8 your Honour will see on the third paragraph a reference to “the World Socialist website”.  That information was not put forward, as I understand it, to the applicant in this process as a possible reason for his application not being advanced to the Minister and so there is potential for a denial of procedural fairness there.  Then your Honour goes on to the middle of the page, five paragraphs down.  There is an assertion that the plaintiff:

does not belong to one of the groups at risk of targeted human rights violations, as outlined in the UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum‑Seekers from Sri Lanka, April 2009.

There had been a submission in the submission of Mr Pistol that he met in fact three of those categories and there is just no indication that that submission was at all dealt with.  There is nothing to indicate that the particular items of the Convention categories were considered by the decision‑maker and there is nothing to indicate that this conclusion or this issue of not being in any category was ever put to the plaintiff as a matter of concern.

HER HONOUR:   Mr Prince, the relief that you claimed in the application filed on 1 June included mandamus directed to Mr Leyden to have him act in accordance with the guidelines and to bring the application to the attention of the Minister.  I am not quite sure that you would really press the latter.

MR PRINCE:   No.

HER HONOUR:   Yes.  I am just wondering what is the utility against a background that includes – following bringing this application and being given an adjournment the officers of the Department appear to have consented to review the matter or to take some action.

MR PRINCE:   I do not know that it is open on the evidence to conclude that they have consented to review the application which is the subject of the application to this Court.  They agreed to consider new material which had been advanced.

HER HONOUR:   All right.  Let us just accept it at that for the moment.  Presumably in that new material it was open to the plaintiff to deal with the matters that he felt he had been deprived of the opportunity to deal with in the application that resulted in Mr Leyden’s assessment of 29 May 2009.

MR PRINCE:   It may have been, but as a matter of law I do not know whether it was because the last decision, most recent decision, would have to be one which was concerned with the new information which had been advanced, assessed as against the guidelines.  There is no mechanism for an appeal or a review of an earlier determination within the Department.

HER HONOUR:   Mr Prince, you came to this Court complaining of Mr Leyden’s failure to accord your client procedural fairness.

MR PRINCE:   Yes, your Honour.

HER HONOUR:   You are going through the process of taking me to matters in an assessment signed by Mr Leyden in late May about which you say my client did not have an opportunity to comment.

MR PRINCE:   Yes.

HER HONOUR:   Since that time, as I understand it, your client has had an opportunity to comment, because he was aware of the material in the reasons given by Mr Leyden in the determination made on 29 May and something further has happened, there has been some further process involving consideration of his application.  I am raising with you the utility of the relief claimed in the application filed on 1 June in that context.

MR PRINCE:   Yes, your Honour, I understand.  First can I say this.  Utility is a discretionary consideration.  It is almost always reserved to the end of consideration as to whether or not there has in fact been jurisdictional error, because it has obviously been affected by the animating principle described by her Honour Justice Gaudron in Enfield that where jurisdictional error exists the writs will issue almost as of right, subject to some limited categories of discretion.  So my primary submission at this early stage would be there would not be any utility in determining utility.  But in terms of the substantive issues, can I take your Honour to the most recent decision which was made?

HER HONOUR:   Yes, I think that would be useful.

MR PRINCE:   In the affidavit of Mr Pistol of 19 June 2009 which is annexure K which is the last 14 pages of a bundle.

HER HONOUR:   Right.

MR PRINCE:   If your Honour goes to a couple of pages in, your Honour will see the minute.

HER HONOUR:   Yes, I have the minute.

MR PRINCE:   At page 2 in the middle of the page your Honour will see the person who wrote the minute, who incidentally was not the person who made the decision, indicates:

I attach copies of relevant decisions and previous ministerial request papers which provide a comprehensive summary of the case.  I have found the information contained in the previous assessments and in the material presented to the Minister accurate, relevant and complete, the assessments in line with the guidelines provided by the Minister and the processes correct.

There was a process of interview.  From what I understand, and necessarily I cannot give your Honour a full picture, it does not appear that when the plaintiff himself was interviewed that the prospect of being able to challenge any previous decisions was raised with him, or any information in a previous decision was raised with him.  In fact, at one point when he tried to indicate, as I understand it, his previous story – and there is at least a type of record of some of the interview earlier on in the affidavit – that he was told that he was just being asked specific questions and that his previous material had been read.  But going on through this current report, for example, if your Honour goes to page 2, there is a reference to the “Current request information”.

HER HONOUR:   I am sorry, where is that?

MR PRINCE:   I am sorry, on page 2 your Honour sees a heading “Current request information”.  Unfortunately, the paragraphs are not numbered.  Immediately above that there is a paragraph which indicates that the decision‑maker of that decision would not:

comment on claims made by Mr Pistol and Mr Yoo regarding processes in relation to the request of 28 May 2009 –

because the matters are currently before Court. 

HER HONOUR:   Yes.

MR PRINCE:   It does not appear that there has been an assessment of the earlier application as against the complaints which are made to the Court.  Then if your Honour goes to the heading “Current request information” your Honour will see there is a reference to:

Letter from the General Secretary of the [opposition party] of Sri Lanka . . . This letter “verifies [the plaintiff’s] union and political profile, his well founded fear of persecution and the existence of contemporaneous complaints about these matters while he was still in Sri Lanka”.

Then there is a series of matters which were noted by the general secretary, starting at page 2 and over the page, all of which are quite terrible and, for example, as recently as 8 February, the penultimate point on page 3 at about point 3 on the page, there is a reference to:

[The plaintiff’s] mother was threatened to inform where he –

presumably the plaintiff –

lived; [the plaintiff’s] mother’s “household utensils were reduced to matchsticks causing massive destruction” . . .  and a crowd on 8 February 2009 – she was evacuated from her house; the day of the Provincial Council election the house was set ablaze – again the matter was reported to the Secretary General of the Party on 25 March 2009 –

If your Honour then turns over to, for example, page 8, your Honour sees a finding at the third paragraph which is that:

Although they –

that is, the LLTE –

may have been interested in [the plaintiff] at the time, there is no evidence that they have an ongoing interest in [him] now or that they would in the future. 

Then in the next paragraph the decision‑maker says:

[The plaintiff] claims that he would be at risk from opponents to the [opposition party], given his profile as a trade unionist and political activist.  [The plaintiff] may have suffered harassment or been victimised in the past but there are no specific grounds to believe that he would be at risk if he returned to Sri Lanka. 

That is in the face of the letter which does not seem to be rejected as to its authenticity or credibility.

HER HONOUR:   By the general secretary.

MR PRINCE:   By the general secretary, which deals with matters occurring in February 2009 of a most extreme nature.  When I said to your Honour that there may be a question about whether or not the later decision truly applies for guidelines, that is the type of matters of concern that I was indicating.  I cannot comment, of course, on the questions of procedural fairness in respect of the second decision because I simply do not know what was or was not put in precise terms to the plaintiff in the interviews that occurred over two days.

Your Honour, it is not a fanciful claim.  There are serious issues to be dealt with.  There is no clear authority which would bind this Court which would preclude the application from being made.  It is in the interests of justice to allow the matter to proceed to a proper hearing, at the very least to allow – and I renew my application for a two‑week adjournment to clarify the issues that arise out of a later decision which I am not in a position to properly put before your Honour today.

In those circumstances and in circumstances where no prejudice has been identified by the Minister still in allowing the matters to proceed to an orderly hearing, and there may be a substantial body of evidence that needs to be dealt with, together with the indication, it seems, of his Honour Justice Hayne that a case involving similar types of matters might be sufficiently important to be put before a Full Bench of this Court and the prevalence of decisions under these guidelines having dramatic influences on the people who make claims that if they return to a country in which they face torture, death, persecution – this applies in respect of all Australia’s

international obligations under the Convention on the Rights of the Child and the other treaties are taken into account, the Convention Against Torture and the like, ICCPR ‑ ‑ ‑

HER HONOUR:   Mr Prince, I think I understand the general territory that you are in now.  It is 20 past 5.  I might just hear from Mr Potts.

MR PRINCE:   Thank you, your Honour.

MR POTTS:   Does your Honour wish to hear from me on this renewed application for an adjournment?  My friend says there is no prejudice, your Honour.  The prejudice is this.  We are on the sixth ministerial intervention request.  There has to be some point at which finality can be brought to these migration cases and a statutory duty under section 198 complied with.

HER HONOUR:   Mr Potts, I am conscious of that.  May I take up with you, Mr Prince draws to my attention a case which I will describe as LG v The Minister.

MR POTTS:   This is Mr Justice Hayne’s case?

HER HONOUR:   Yes.  On the face of it, Mr Prince says to me this is a case being case managed before his Honour which raises as an issue matters that you put in contention in your helpful written submissions, Mr Potts, concerning the justiciability of assessments made by officers of the Commonwealth in dealing with requests for ministerial assistance.  What do you say to that, Mr Potts?

MR POTTS:   Your Honour, the Minister is acutely conscious of the need to act consistently.  I drew my learned friend’s attention to that case yesterday and if he had not raised it with your Honour I would have raised it.  Your Honour, that case does involve a challenge to exercises of powers by the Minister under section 417.  In my respectful submission, the issues in that – and certainly his Honour ‑ ‑ ‑

HER HONOUR:   It does seem to also, though, look at questions of the second respondent’s role in ‑ ‑ ‑

MR POTTS:   I accept that, your Honour, but in a different and distinguishable way, in my submission.  In my submission, the issues in that matter – I will call it LG, if I may, your Honour – in that case the plaintiff alleges that a decision by the then Minister not to exercise his powers under section 417 of the Act was made in excessive jurisdiction and void because the Minister denied procedural fairness by taking into account significant and adverse material from a third party which the plaintiff was unaware of. 

So that was a case in which it had gone beyond the point at which the Minister had said, “I’m not even going to consider exercising my power”.  The Minister had reached a point where he had said, “I will consider whether or not to exercise it” but chose not to.  That was a situation quite distinct from this where significant adverse third party material was taken into account by the Minister and alleged to be a breach of natural justice.  I do not accept, your Honour, necessarily that the Minister conceded the issues raised in that case were arguable.  I must accept that when his Honour Justice Hayne suggested the matter go to a Full Court the Minister did not at that stage seek to be heard against that.

I have to accept, and I do, your Honour, it is in the broad country of 417 and some of the issues that my learned friend wishes to agitate in this case.  I do submit to your Honour the issues, insofar as they relate to Mr Leyden in that case, are interdependent with that alleged breach of procedural fairness by the Minister personally, but I could not say to your Honour it is a million miles from this case.

HER HONOUR:   In light of that, Mr Potts, noting the time and the complaint that Mr Prince makes that again he is placed in a situation where he has not had an opportunity to have a look at the reasons, he has taken me briefly to the most recent decision raising at least as a matter that he would wish the opportunity to develop, the contention that there is material, he asserts, apparently accepted as credible from the general secretary of the opposition party of raising matters of a serious character ‑ ‑ ‑

MR POTTS:   Your Honour, I am acutely conscious of the time.  I am acutely conscious of the difficulty your Honour is placed in.  Your Honour has heard my instructions are to oppose.  I do not wish to take up time if your Honour is persuaded to the contrary.

HER HONOUR:   I understand that.  Mr Potts, I am inclined to think Mr Prince should have his opportunity to at least put this most recent decision, to at least analyse it and put such matters as he wants to in support of an amendment to the relief that is presently claimed in the application filed on 1 June.  For practical reasons, that raises this.  The matter could go over for one week to Friday of next week.  Alternatively, it would have to go over until not the following week but the week after and late in that week.  Mr Potts, I am very much in your hands about that.  I understand the Minister’s opposition to the matter dragging on and if it is ‑ ‑ ‑

MR POTTS:   If your Honour will excuse me, I will just take some instructions, if I may.

HER HONOUR:   Yes.

MR POTTS:   Your Honour, the concern is that if we are back in a week are we going to be any further advanced?  With respect, your Honour, if your Honour is minded to do that, your Honour will need to address three things, in my respectful submission.  The first will be to make an order restraining my client from removing the plaintiff from Australia because on my instructions I cannot give your Honour an undertaking.  The second will be to direct my learned friend to file an amended application identifying with some precision the grounds he intends to raise.  The third thing I would ask your Honour to do is to direct him to file some brief outline so that we might have some clarity as to the issues to be debated before your Honour.

HER HONOUR:   Yes.  I think they are all very helpful suggestions, Mr Potts.  Mr Prince, I do not think you can complain about any of them.

MR PRINCE:   No, of course not, your Honour.

HER HONOUR:   What I have in mind then would be if the matter were to go over to – would I be right in thinking 8 July is a Thursday?

MR PRINCE:   It is a Wednesday, your Honour.

HER HONOUR:   In terms of the matter coming back for a hearing, my inclination is to think that Friday, the 10th, would be the preferable date because that would give us more time, I believe – I think I am right in thinking that I have a number of matters on the 9th so that that if – does the 10th present you with difficulties?

MR PRINCE:   Not difficulties that cannot be – I was meant to go overseas but I think that – I mean this is obviously more important than that and as we know, airfare arrangements could be changed.  If your Honour has the 8th.

HER HONOUR:   I am right, I think, in understanding that the 9th causes difficulties.

MR PRINCE:   Yes.

HER HONOUR:   You say the 8th is ‑ ‑ ‑

MR PRINCE:   Yes.

HER HONOUR:   That does not interfere with your travel plans?

MR PRINCE:   No.

HER HONOUR:   All right.  Mr Potts, does the 8th suit you?

MR POTTS:   It does, your Honour.  Your Honour, I was just raising with those instructing me, my learned friend initially sought an injunction to prevent removal pending the hearing of his application for show cause.  Now, through various events, and I am not being critical of anyone, your Honour, we are moving on in steps.  I wish to raise with your Honour – I do not have firm instructions about this - whether there is some utility in the matter simply proceeding to the hearing of the application as to whether or not my client should show cause on these issues rather than simply moving on the basis that there is a serious question to be tried in an injunction because my learned friend simply has to show an arguable case to get an order that I show cause.  It is not that much different from the question your Honour would be embarking upon simply to grant an injunction to restrain my client from removing the plaintiff pending the hearing of that issue.  I am conscious we are taking up a great deal of your Honour’s time in the High Court of Australia.

HER HONOUR:   Yes.

MR POTTS:   I simply raise that for your Honour as an issue of the most productive use of this Court’s time and to avoid, if at all, occupying valuable judicial resources multiple times on what are effectively very similar issues.

HER HONOUR:   Indeed.  What do you say, Mr Prince?

MR PRINCE:   I agree with that, your Honour.  If that is the case then it may mean that – although similar tests are involved, a final hearing on a show cause is obviously a different creature and it would be my strong preference to come back once rather than come back several times so that if it is to be heard on a show cause, in my submission, maybe it would be better for that to be dealt with a little later.  The 8th was a date which was, I suppose, hurried along to allow an amendment but once the amendment occurs there will need to be a consideration of that and the stakes are raised, as it were, in a final hearing. 

HER HONOUR:   I do not know that I understand that, Mr Prince.  Do you agree with Mr Potts that the sensible course is for the matter to be listed for hearing of the show cause application?

MR PRINCE:   Yes.

HER HONOUR:   Do you understand that it would be necessary to amend it, the application?

MR PRINCE:   Yes.

HER HONOUR:   All right, now what is it that you are proposing ‑ ‑ ‑

MR PRINCE:   That it would be the 8th.  That if it is a substantive hearing that would go over longer to allow for the procedural steps that are necessary to be worked out between the parties ‑ ‑ ‑

HER HONOUR:   What procedural steps do you have in mind?

MR PRINCE:   I will need to file an amended application.  I cannot recall if there is provision in the Rules for a response or a reply to an application to show cause.  I will need to provide some submissions ‑ ‑ ‑

HER HONOUR:   Yes, each of those steps was contemplated in the earlier discussion.  What else do you have in mind?

MR PRINCE:   There might need to be some evidence, your Honour, because if it is going to be dealt with on a final basis, at least in respect of the application to show cause, the evidence will need to be before your Honour.  There will need to be perhaps a transcription of the CDs which have been produced of the interview and there may be some further documents which are going to be necessary to obtain from the Department.  I just foresee those as possible problems for larger cases dealt with.

HER HONOUR:   What is your ‑ ‑ ‑

MR POTTS:   Your Honour, the difficulty is this.  This case has the potential to create a backlog, not only with this case but many, many others.  If it can be done urgently on the 8th with a show cause hearing to determine whether or not – my learned friend called it “final hearing”.  In my respectful submission, it is really an order nisi hearing, your Honour. 

HER HONOUR:   Yes, it is. 

MR POTTS:   In my respectful submission, it should happen on the 8th.  There is no reason why it cannot happen on the 8th and that would be the preferable course from the Court’s perspective.  In my respectful submission, it would ensure that costs are minimised of all parties and the Court’s time is put to the most productive use to resolve an issue which has already occupied a considerable amount of the Court’s time.  Finally, I do not apprehend the Rules do require any reply to an application for an order to show cause. 

HER HONOUR:   Mr Prince, it seems to me that the matter should be dealt with on an urgent basis and that the 8th should stand as the date fixed for the hearing. 

MR PRINCE:   Yes, your Honour. 

HER HONOUR:   So that you and Mr Potts might just work out now what is reasonable as between the two of you in terms of a timetable.

MR PRINCE:   Yes, your Honour.

HER HONOUR:   You to file your amended application and your outline, and you yours, Mr Potts.

MR PRINCE:   Yes, your Honour.  Once we have resolved that could we let your Honour’s associate know tomorrow morning of our proposals or we could do it ‑ ‑ ‑

HER HONOUR:   I think we can do it here and now, I rather think. 

MR PRINCE:   Your Honour, the plaintiff will file and serve any amended application and an outline of submissions in the show cause application and any further evidence by 1 July 2009.

HER HONOUR:   Yes.

MR PRINCE:   The first defendant will file and serve any submissions in reply by 6 July 2009.

HER HONOUR:   Yes.

MR PRINCE:   Then the matter would be listed for hearing on 8 July 2009.

HER HONOUR:   Very well.  I make directions in those terms.  It is necessary to extend the order made on 1 June that the first respondent, by his agents and delegates, be restrained from removing the prosecutor from the migration zone of the Commonwealth of Australia before 5.00 pm on Wednesday, 8 July 2009.

MR PRINCE:   If the Court pleases.

MR POTTS:   If your Honour will forgive me, I hope this is not seen as pedantry.  In that order ‑ ‑ ‑

HER HONOUR:   I think I started off referring to the earlier order and then I moved to the new form of order and you are quite right, Mr Potts.

MR POTTS:   It should be the first defendant and the plaintiff, I believe, your Honour, not the first respondent and the prosecutor.  I am not seeking to be difficult, your Honour.

HER HONOUR:   No, not at all.  The formal order will be that the first defendant, by his agents and delegates, is restrained from removing the plaintiff from the migration zone of the Commonwealth of Australia before 5.00 pm on Wednesday, 8 July 2009.

I will adjourn.

AT 5.39 PM THE MATTER WAS ADJOURNED