BDT16 v Minister for Immigration and Border Protection & Anor

[2017] HCATrans 194

[2017] HCATrans 194

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S87 of 2017

B e t w e e n -

BDT16

Applicant

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

Application for reinstatement

BELL J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON WEDNESDAY, 27 SEPTEMBER 2017, AT 9.52 AM

Copyright in the High Court of Australia

MR B. NAZER:   Good morning, your Honour, I appear for the applicant in this matter.  (instructed by Byron & Associates)

MR G.J. JOHNSON:   If the Court please, I appear for the first respondent.  (instructed by MinterEllison)

HER HONOUR:   Now, Mr Nazer, this is a summons for reinstatement.  I will just inquire perhaps, Mr Nazer, before I take anything up with you about Mr Johnson’s attitude.

MR JOHNSON:   Your Honour, the first respondent opposes the matter being reinstated for two reasons principally:  first, that having regard to the affidavit that Mr Nazer has filed and served, it reveals no satisfactory explanation for non‑compliance with rule 41.07.6 of the High Court Rules; and, secondly, it is opposed because the first respondent says that there are no reasonable prospects of success in the special leave application, having regard to its grounds.

HER HONOUR:   Mr Johnson, if I can take up the second matter with you first ‑ ‑ ‑

MR JOHNSON:   Yes.

HER HONOUR:   ‑ ‑ ‑ and that is in the ordinary course the application would be considered by panel and depending on the view taken it might be listed for oral argument or orders might be granted – made without oral argument, either granting special leave or dismissing the application.  But my point is it would be considered in the usual way by a panel of at least two or more Justices.

MR JOHNSON:   Indeed.

HER HONOUR:   What I see from the affidavit that Mr Nazer has filed is that it was filed on 16 August 2017 together with the summons for reinstatement.  Now, that would seem to be moving reasonably promptly from the time the application was deemed abandoned.  As to the sufficiency of the account in Mr Nazer’s affidavit there seems – there is an account that the draft application book was subject to some sort of requisition, as I understand it; it may not be very well explained, but there is an account of being informed to amend the draft application book and then some communications with the Registry, all evidencing an intention to move forward with the application, and in those circumstances why would I not in the exercise of my discretion reinstate the application, Mr Johnson, and let the issue of its merits be determined by a panel of Justices in the usual way?

MR JOHNSON:   Certainly the first respondent would not be prejudiced by such an approach, having regard to what your Honour has indicated by reference to the consideration by a panel of Justices of the merits of the special leave application.  The first respondent’s position in relation to those grounds are of course set out in the response to the application and would then be considered.  In those circumstances, I cannot add anything to what I have already indicated.

HER HONOUR:   Yes.

MR JOHNSON:   I do not think that there is an indication of a lack of an interest in progressing the matter on the applicant’s part, but rather some – certainly some failures on the parts, at least of the lawyers, to progress the matter appropriately.  I do not think it goes any higher than that but that is all I wish to say on the matter.

HER HONOUR:   Thank you, Mr Johnson.

MR JOHNSON:   As the Court please.

HER HONOUR:   Mr Nazer, I do not need to hear from you further, save for this.  In the ordinary course, in granting you the relief that is sought, namely, reinstating the application, it would be on the basis that the applicant pay the first respondent’s costs of the application.  Do you wish to be heard on that, Mr Nazer?

MR NAZER:   No, your Honour.  That is important, thank you, your Honour.

HER HONOUR:   Yes.  There will be the following orders:

1.The application for special leave to appeal, filed on 7 April 2017, is reinstated.

2.The applicant is to pay the first respondent’s costs of the application.

AT 9.59 AM THE MATTER WAS ADJOURNED