Berenguel v Minister for Immigration and Citizenship

[2009] HCATrans 261

[2009] HCATrans 261

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M66 of 2009

B e t w e e n -

MARCOS FLAVIO BERENGUEL

Plaintiff

and

MINISTER FOR IMMIGRATION AND CITIZENSHIP

Defendant

Application for an order to show cause

CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON WEDNESDAY, 7 OCTOBER 2009, AT 9.40 AM

Copyright in the High Court of Australia

MR A. BONNICI:   May it please the Court, I appear for the plaintiff.  (instructed by S.V. Winter & Co)

MR R.C. KNOWLES:   Your Honour, I appear for the defendant.  (instructed by Clayton Utz Lawyers)

HER HONOUR:   May I just mention there is an error on the transcript on the last occasion.  On page 4, line 137, there is a reference to rule 23.03.3 of the High Court Rules which should read rule 25.03.3.  It concerned a referral of an application for an order to show cause to a Full Court.

This matter has been returned today for the purpose of considering questions of law in the form of a special case pursuant to rule 27.08.1 of the High Court Rules.  Mr Bonnici, I need to check with you what developments are at this stage and whether there has been agreement in relation to the special case, a draft copy of which has been provided to the Court.

MR BONNICI:   There has been no agreement.  We have filed, I think, the question with the Court.  I do not know if your Honour ‑ ‑ ‑

HER HONOUR:   Yes, I have seen that, but I directed last time that there be the preparation of a special case.

MR BONNICI:   Yes.

HER HONOUR:   That has not been done yet because - you needed to do two things, both amend your proceedings and also, as I understood it, co‑operate in relation to the stating of a special case.  It has not been signed by both parties and if you are still talking to each other about the precise form of the questions to be asked, please inform me so that I can allow the time for that co‑operation to occur.

MR BONNICI:   Your Honour, we have received a letter from the solicitors for the defendant asking us whether we would be prepared to have them prepare a draft and we said yes.

HER HONOUR:   Yes.  There is no contest about the facts, is there?

MR BONNICI:   There is some, just a slight contest about the facts – nothing world shattering.

HER HONOUR:   No.

MR BONNICI:   We have not received the questions of law - I did not see them until this morning – of the defendant.

HER HONOUR:   Right.  So do you want more time to think about the questions of law?

MR BONNICI:   Well, I had a personal discussion with my opponent because, as I put to him, it is the decision of the delegate that is in question and the decision of the delegate is very pointed towards the fact that there was no document before him at the time of application that the applicant had the necessary competence in English.  Now, the issue as I saw it was whether that interpretation of regulation 1.15B, the construction of those provisions, whether in fact there had been an error there in his interpretation of it.  Now, I may be wrong here but that is what I understood the issue to be.

HER HONOUR:   Are you going in this direction, that what you want is the questions of law that you see as arising to be included as part of the questions of law to be decided.  Is that the point you are presently making to me?

MR BONNICI:   Yes, I am.

HER HONOUR:   Yes.  Well, perhaps if you sit down and I ask Mr Knowles about that.

MR BONNICI:   Thank you.

HER HONOUR:   Thank you, Mr Bonnici.

MR KNOWLES:   Thank you, your Honour.  Has your Honour received, I take it, the statement of a special case that was prepared ‑ ‑ ‑

HER HONOUR:   I have – in draft form?

MR KNOWLES:   Yes, your Honour.

HER HONOUR:   Yes, I have, thank you.

MR KNOWLES:   Has your Honour also received a copy of the annexure documents that are referred to in the statement there?

HER HONOUR:   No.

MR KNOWLES:   I have provided a copy to my learned friend.  I also have a copy here.  It may be a bit premature to ‑ ‑ ‑

HER HONOUR:   It seems the point is that Mr Bonnici is suggesting that the questions of law which the plaintiff wants should be added to the special case.

MR KNOWLES:   Yes.

HER HONOUR:   On one view, there would be nothing wrong with that, I would have thought, that is to say that the questions each side are interested in having answered are part of the special case signed off on by both parties.

MR KNOWLES:   Yes, your Honour.

HER HONOUR:   I am very grateful – and no doubt Mr Bonnici is too – for the efforts on your side in preparing a draft special case.

MR KNOWLES:   Yes, thank you, your Honour.  In relation to the questions of law, the way that it was framed in the document prepared by the defendant, it was framed to encompass the context, the statutory context that is, which is clause 885.213.  That would necessarily involve consideration of the constituent parts of that clause and their proper construction, including the meaning of the terms “vocational English” and even “competent English” perhaps.

HER HONOUR:   Yes.  Can I just interrupt you and say I have seen a number of special cases where there is some overlap in the questions and the overlap occurs because two different parties are co‑operating in relation to the setting down of a special case and may have rather different views about the phraseology of the questions.  At the end of the day, it does not matter too much.

MR KNOWLES:   I should indicate to your Honour, and this is where I was eventually heading, I was really just trying to explain the motivation behind the question as prepared by the defendant.

HER HONOUR:   It struck me that the logical order would perhaps be – depending on agreement, I am not trying to pre‑empt anything – for the two questions of law proposed by Mr Bonnici’s solicitor to be the first two questions, for your present question 1 to be question 3 and your present question 2 to be question 4.  That might be one way of dealing with the matter.

MR KNOWLES:   Yes.  Certainly there is no objection to the first question of Mr Bonnici’s being incorporated into the special case document.

HER HONOUR:   Yes.

MR KNOWLES:   I should just say that in terms of the second question, it would appear to be otiose.

HER HONOUR:   It is a submission rather than a question in a sense.

MR KNOWLES:   If there is a misconstruction, one would say that it would follow that there is a jurisdictional error in the normal course of events.

HER HONOUR:   Yes.  I might ask Mr Bonnici about that just so that we can ‑ ‑ ‑

MR KNOWLES:   Yes.

HER HONOUR:   Mr Bonnici, you have heard what Mr Knowles just said.  Question 2, in a sense, is unnecessary because of course you can submit that a jurisdictional error occurred, but he seems to accept my suggestion that your first question of law ought to be the first question in the special case.  That seems a reasonable course of action, does it not?

MR BONNICI:   Yes, it does.

HER HONOUR:   Yes, thank you for that.

MR KNOWLES:   I should just indicate to your Honour, with the greatest respect, that I had not actually made a submission about the order of the questions.

HER HONOUR:   That is true.

MR KNOWLES:   I was heading to that.

HER HONOUR:   Yes.

MR KNOWLES:   The only thing that I was going to say was that there is a sense of drilling down from the more general to the more specific.

HER HONOUR:   Yes, of course.

MR KNOWLES:   In that sense, it might be regarded as appropriate that this question actually be the second question and that would be the position that the defendant would put on the basis that one first looks at that question and then looks at what the proper construction of the constituent part of that question is.

HER HONOUR:   The regulation, yes.  Well, I am allowing all this debate about the special case to go on in order to facilitate agreement between the parties.

MR KNOWLES:   I understand, your Honour.

HER HONOUR:   Perhaps the best course is for me to adjourn the matter, say, till Friday to allow the parties to hammer out the details of the special case and then it could be filed by consent, I would have thought, or consent orders be sought along the basis that the special case be referred.  Or I could even come in at 9.30 and briefly give the appropriate directions.

MR KNOWLES:   I would hope that that would be unnecessary, your Honour, and I would hope that there would be an ability to hammer it out between the parties in the intervening period.

HER HONOUR: I did not extend the time under section 486A on the last occasion. I indicated that I thought there should be an extension but I did not make an order and that is because I was adjourning the matter to enable Mr Bonnici on behalf of his client to proceed down the path of a special case. What I had had in mind is that when the special case was ready I would grant the extension of time. So if you are seeking orders by consent, the first would be that time is extended as required pursuant to the provision of section 486A(2) of the Migration Act 1958 (Cth). Then the second order you would seek by consent would be for me to refer the special case, agreed on by the parties pursuant to rule 27.08.1 of the High Court Rules, to the Full Court. I can indicate now that the date for hearing would depend upon liaison with the Registry. The other directions you might include in any consent directions would be that there be liberty to apply and costs reserved. That would seem an appropriate set of directions.

MR KNOWLES:   Yes, your Honour.  There was only two matters that I would add in relation to procedural orders.  The first is in relation to submissions.

HER HONOUR:   Can I leave that to you to work out a directions timetable?

MR KNOWLES:   Yes.  I should just indicate for the record that the defendant was proposing that the plaintiff prepare submissions and file and serve them 15 working days out and that the defendant do so seven working days out.

HER HONOUR:   Yes.  Then, as I say, the hearing date would be a matter for liaison with the Registry.

MR KNOWLES:   Yes, your Honour.  There was one other procedural matter and it is entirely a matter for your Honour.  It is just as to the constitution of the Bench and whether this matter warrants a Full Bench or a lesser number.

HER HONOUR:   I would leave that to be sorted out on another occasion.

MR KNOWLES:   Yes, if your Honour pleases.

HER HONOUR:   Thank you very much for your assistance.  Thank you, Mr Bonnici.  What I will do then today is simply adjourn the matter over until 9.30 am on Friday, 9 October 2009.  Thank you.  Adjourn the Court.

AT 9.52 AM THE MATTER WAS ADJOURNED
UNTIL FRIDAY, 9 OCTOBER 2009