Applicant S310-2002, Ex parte - Re MIMIA

[2002] HCATrans 399

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S310 of 2002

In the matter of -

An application for Writs of Mandamus, Certiorari and Prohibition and an injunction against SENATOR THE HONOURABLE PHILIP RUDDOCK MP, MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

First Respondent

MR GRANT BROWNE, COMPLIANCE OFFICER, DEPARTMENT OF IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Second Respondent

DIONNE DIONISIO, A/G ASSISTANT MANAGER COMPLIANCE, SYDNEY CBD REGIONAL OFFICE, DEPARTMENT OF IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Third Respondent

Ex parte –

APPLICANT S310/2002

Applicant/Prosecutor

GAUDRON J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON MONDAY, 14 OCTOBER 2002, AT 9.31 AM

(Continued from 23/9/02)

Copyright in the High Court of Australia

__________________

MR P.M. GWOZDECKY:   Your Honour, I appear for the applicant/prosecutor.  (instructed by the applicant)

MR G.T. JOHNSON:   May it please your Honour, I appear for the respondents.  (instructed by the Australian Government Solicitor)

HER HONOUR:   You were to exchange some documents and so forth.

MR GWOZDECKY:   Your Honour on the last occasion made - this is a directions hearing.

HER HONOUR:   Yes.

MR GWOZDECKY:   There was a notice to produce dated 9 December that went to the respondent.  I formally call on that, but I have been informally told that there is nothing to produce.

HER HONOUR:   Yes, thank you.

MR JOHNSON:   Your Honour, the notice to produce calls for the “original and contemporaneous notes of DJW5”.  In that respect, my friend has been informed that there is nothing other than DJW5 itself and my friend has indicated that he is content with the photocopy that he already has and does not require the original.  So that is taken care of, your Honour.

Then the second thing that was called for was described as “all file notes, memos, notes and contemporaneous documentation of Mr Ray Collins of DIMA in relation to a telephone conversation he had on 19 February 2002 with Mr Alec Alexandrou, migration agent of the applicant, from Botany Migrant Resource Centre” and in that respect my friend has been referred to a handwritten note, a copy of which is at page 12 of Ms Watson’s affidavit.  It is in fact dated 19 February and has been informed that there is nothing further.  Again, he is content with that and is content with the photocopy that he has received.  So that is the position in relation to that, your Honour.

We have not received anything further from the applicant since the matter was last before your Honour when your Honour will recall receiving an amended draft order nisi, an affidavit and a chronology.  Your Honour, the matter is listed for hearing before your Honour only very shortly and in the respondents’ respectful submission it would be desirable for a timetable to be made for submissions so that it is clear just precisely how the applicant makes her case.

The affidavit which was handed to your Honour on the last occasion refers, for example, or indeed annexes, as exhibit 5, an application which was dated by the applicant 2 September 2002.  The text of the affidavit says that it was completed and signed by her.  It does not say that it was lodged and the draft order nisi does not refer to it at all.  It is unclear to us whether or not the applicant is saying that that went to the Department.  It is unclear whether that is being relied upon as a separate application or whether the only application which is being relied upon is the one which is specifically referred to in the grounds of that amended order nisi that your Honour will recall discussing with us on the last occasion.

The best way, your Honour, it seems for that to be dealt with, rather than my friend attempting to particularise it, would be if submissions could be filed by the applicant within seven days clearly stating the basis of the orders sought and we, of course, would be content to respond to that within the further week and that should ready the matter for hearing.

As far as evidence is concerned, my friend has not indicated any further evidence to come from his side.  The only matter which the respondent was proposing to put on an affidavit about, if in fact it is in issue, is that there was no fee paid in relation to the document which was indicated on the last occasion to be an application, that is, the document which is alleged to be an application which is referred to in my friend’s amended application for an order nisi.  That is the purported application that was made two days after the applicant’s visa expired on 18 February.  Your Honour, that is the position as we see it.

HER HONOUR:   Yes, thank you.  Yes, Mr Gwozdecky.

MR GWOZDECKY:   Your Honour, there has not been any evidence on yet because the applicant wanted to issue this notice to produce to see what transpired.  We now know that there is nothing further to produce.  There is evidence from the migration agent that there was an undertaking on 21 February that the condition of marriage would be waived by the fact that there had been a two‑year de facto relationship already, which gets over a significant hurdle in terms of a visa.  There is also an undertaking that the applicant had 28 days at that period of time in which to lodge the application.  What in fact happened was about approximately 10 days after that, or thereabouts, the applicant was detained.

HER HONOUR:   Is that on affidavit?

MR GWOZDECKY:   No, it is not.  As I say, this is information that can be made on affidavit.  The only real hurdle, your Honour, that seems to me that remains in the issue is the non‑payment of the application fee and I suppose an alternative argument, the non‑completion of the standard form.  In relation to the non‑completion of the standard form, the applicant had filled out an identical form a year earlier ‑ ‑ ‑

HER HONOUR:   Yes, but I do not think we need to go into this today.

MR GWOZDECKY:   I am sorry, your Honour.

HER HONOUR:   You have to put that on in affidavit form.

MR GWOZDECKY:   What I was going to suggest, your Honour, was if I had seven days in which to lodge any further affidavits that I seek to rely upon and maybe within 10 days from today’s date to do any further submissions.  That would, as I say, give me - there may be a possibility that ‑ ‑ ‑

HER HONOUR:   Seven days from today - I have lost myself - would take us to the 21^st and I have indicated that it would be in the week commencing the 28^th.

MR GWOZDECKY:   Yes.

HER HONOUR:   So if you had until the 14^th and then until 17^th - would that give you sufficient time if I listed it on the 31^st?

MR JOHNSON:   No, your Honour, I do not think it would.  It is actually listed on the 28^th before your Honour at 9.30.

HER HONOUR:   Is it?

MR JOHNSON:   As we understand it, your Honour, yes.  We have received notice to that effect and I am just looking at the transcript of the last occasion.

HER HONOUR:   Yes, thank you.  Yes, I have that.

MR JOHNSON:   So, your Honour, in relation to the affidavits, my friend seems to be suggesting that there is going to be some evidence alleging certain undertakings to have been given.  This is news to us.  It may very well be, when we see this, that it needs to be responded to.  We cannot say.  Certainly that evidence is something which the applicant could already have put on, if it is to come from the applicant’s agent.

The notice to produce to which I referred was only sent on 9 October 2002 and it was responded to by my instructing solicitor last week.  So what I would ask your Honour to do would be to direct that affidavits be filed and served containing any further evidence proposed to be relied upon by the applicant by Thursday of this week, that is Thursday, 17 October, and that by Friday of this week, that is 18 October, that the applicant also file and serve submissions and I would ask your Honour to then allow the respondent until Thursday, 24 October to file and serve anything in response.

HER HONOUR:   Yes, thank you.  Well, that seems reasonable, does it not, Mr Gwozdecky?

MR GWOZDECKY:   Your Honour, we are just arguing about time.  I mean, it is a busy week.  If we could maybe just adjust one day to Friday for the affidavit ‑ ‑ ‑

HER HONOUR:   Will file the affidavits and submissions on the Friday?

MR GWOZDECKY:   Would my friend be happy with the affidavit on the Friday and submissions on the Monday?

HER HONOUR:   Yes, you should be able to manage.  That gives you all week to ‑ ‑ ‑

MR JOHNSON:   If perhaps, your Honour, we could have then until Friday ‑ ‑ ‑

HER HONOUR:   The 25^th.

MR JOHNSON:   Yes, thank you, your Honour.

HER HONOUR:   Yes, thank you.  I direct the applicant to file any further affidavits upon which she relies by 18 October and written submissions by Monday, 21 October and the respondent to file anything in reply, including written submissions, by 25 October and the matter adjourned for hearing until 28 October.  Costs reserved and certify for the attendance of counsel.  Thank you.

AT 9.42 AM THE MATTER WAS ADJOURNED
UNTIL MONDAY, 28 OCTOBER 2002