BDJ16 v Minister for Immigration and Border Protection & Ors

[2017] HCATrans 82

[2017] HCATrans 082

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S68 of 2017

B e t w e e n -

BDJ16

Plaintiff

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Defendant

ADMINISTRATIVE APPEALS TRIBUNAL

Second Defendant

FEDERAL CIRCUIT COURT

Third Defendant

NETTLE J

TRANSCRIPT OF PROCEEDINGS

FROM MELBOURNE BY VIDEO LINK TO SYDNEY

ON FRIDAY, 7 APRIL 2017, AT 2.35 PM

Copyright in the High Court of Australia

MS R.S. FRANCOIS:   If the Court pleases, I appear for the first defendant.  (instructed by Sparke Helmore Lawyers)

HIS HONOUR:   Thank you, Ms Francois.  Ms Navusolo, you are the interpreter sworn to interpret in this proceeding on behalf of the applicant?

THE INTERPRETER:   Yes.

LITIA NAVUSOLO, sworn as interpreter.

HIS HONOUR:   Mr Plaintiff, I will call you BDJ16 if that is acceptable?

BDJ16 (through interpreter):   Yes.

HIS HONOUR:   Thank you.  Mr BDJ16, I have read your application for order to show cause and your summons seeking an injunction and your affidavit in support.  I understand you are seeking an injunction to restrain the Minister from removing you from Australia until your application for order to show cause is heard.  Is that the position?

BDJ16 (through interpreter):   He is accepting that he wants to go back to Fiji.

HIS HONOUR:   Could you say that again please, Ms Navusolo?

BDJ16 (through interpreter):   He said just then that he wants to go back to Fiji.

HIS HONOUR:   Could we clarify that?  Mr BDJ16, are you withdrawing your application for injunction?

BDJ16 (through interpreter):   Yes, he is withdrawing.

HIS HONOUR:   Mr BDJ16, please feel free to sit down if it is more comfortable for you.  Thank you.  Ms Francois, you have an application presumably?

MS FRANCOIS:   Yes, your Honour, we would seek costs of today.

HIS HONOUR:   Mr BDJ16, please sit down.  Just listen to me, I am about to say something to you.  I am about to make an order dismissing your

application for injunction and directing you to pay the costs of the application.  Do you understand that to be so?

BDJ16 (through interpreter):   Your Honour, he said that he wants to withdraw and he is willing to – he just want to withdraw, he kept on saying that.

HIS HONOUR:   The applicant has applied by summons, filed 5 April 2017, for an injunction to restrain the respondent Minister for Immigration and Border Protection from removing the applicant from Australia, pursuant to s 198 of the Migration Act 1958 (Cth), pending the hearing and determination of the applicant’s application for order to show cause why certiorari should not go to quash a decision of the Administrative Appeals Tribunal of 1 March 2016, affirming a decision of the Minister’s delegate of 31 March 2015 to refuse to grant the applicant’s protection visa.

Upon the matter coming on for hearing before me this afternoon, the applicant, through his interpreter, has informed the Court that he wishes the application for injunction to be withdrawn because it is now his wish to return to the country from which he came, namely, Fiji.

In those circumstances, it is ordered that the application for injunction made by summons, dated 5 April 2017, is dismissed and that the applicant pay the first‑named respondent’s costs of the application.

Ms Francois, is anything further sought?

MS FRANCOIS:   Yes, your Honour.  In light of that, the application for an order to show cause, filed on 28 March 2017, and the summons that accompanied it ought to be dismissed as well.

HIS HONOUR:   Ms Navusolo, could you get back in a position where I can see you please?

THE INTERPRETER:   Yes, your Honour.

HIS HONOUR:   Would you explain please to Mr BDJ16 that because the injunction application has been withdrawn and he is prepared to return to Fiji, the Minister is asking that his application for an order to show cause be dismissed.

THE INTERPRETER:   Yes, your Honour, he accepted it.  Yes, he said “yes”.

HIS HONOUR:   Thank you.  At the same time the applicant has indicated that he is agreeable to having his application for an order to show cause dismissed.  It is, therefore, the order of the Court that the application for order to show cause is dismissed.

Are you seeking costs of that also, Ms Francois?

MS FRANCOIS:   Yes, thank you, your Honour.

HIS HONOUR:   That application is dismissed with costs.  I shall now adjourn.

AT 2.43 PM THE MATTER WAS CONCLUDED