Bodruddaza v MIMA

[2006] HCATrans 516

[2006] HCATrans 516

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S241 of 2006

B e t w e e n -

KAZI FAZLY ALAHI BODRUDDAZA

Plaintiff

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Defendant

Summons

HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON WEDNESDAY, 13 SEPTEMBER 2006, AT 9.32 AM

Copyright in the High Court of Australia

MR S.B. LLOYD:   May it please the Court, I appear in this matter with my learned friend, MR L.J. KARP, for the plaintiff.  (instructed by Parish Patience Immigration)

MR G.R. KENNETT:   Your Honour, I appear for the defendant.  (instructed by Australian Government Solicitor)

HIS HONOUR:   Mr Lloyd, you move on an application for an order to show cause which was filed on 11 July 2006?

MR LLOYD:   I do, your Honour, although I have an amended application which I would seek leave to file in Court.  All I do is seek costs.

HIS HONOUR:   Very well.  Do you object to the filing of that?

MR KENNETT:   No, your Honour, I do not.

HIS HONOUR:   Leave is granted to file that in Court.  You also rely on a summons filed on 11 July?

MR LLOYD:   I do, although in light of my friend’s submissions, we do not actually seek those orders.

HIS HONOUR:   Very well.  You rely on an affidavit of Mr Nicholas Alexander McNally filed on 11 July?

MR LLOYD:   I do not propose to read that now.  There has been a ‑ ‑ ‑

HIS HONOUR:   You do not read that, very well.  What about the affidavit of Mr Bodruddaza of 7 September 2006?

MR LLOYD:   I read that and tender the exhibit KB1.

HIS HONOUR:   Any objection to the affidavit or the exhibit?

MR KENNETT:   No, your Honour.

HIS HONOUR:   That is the evidence for ‑ ‑ ‑

MR LLOYD:   That is.

HIS HONOUR:   Actually, I seem to have two affidavits, one filed on the 7th and one on the 8th.  Which is the one you rely on?

MR LLOYD:   The one which is dated the 8th, so I suppose the one filed on the 8th.  I am not sure that I ever saw one filed on the 7th.

HIS HONOUR:   That is read then.  Mr Kennett, do you read Mr Markus’ affidavit of 27 July filed on that date?

MR KENNETT:   Yes, your Honour.

HIS HONOUR:   Mr Kennett, as I understand it, you do not object to what might be called the 486A question being referred to a Full Court?

MR KENNETT:   No, your Honour.

HIS HONOUR:   Mr Lloyd seems to want to have referred also to a Full Court what he calls the substantive question of whether in truth his client met the appropriate educational standards or not.  What do you say to that?

MR KENNETT:   Your Honour, we would understand the question to be whether the Tribunal addressed itself to the right issue when it considered the plaintiff’s English qualifications.  My client would not resist that matter going up as well if your Honour thought that that was a neater way to deal with the case.

HIS HONOUR:   What is the alternative if ‑ ‑ ‑

MR KENNETT:   The course that we were inclined to propose would be for the Full Court to deal with the 486A issue which involves substantial constitutional questions.

HIS HONOUR:   Or could do, because I gather Mr Lloyd contends it just does not apply.  But if it does apply, he says it is invalid and that is the constitutional question.

MR LLOYD:   Yes.

MR KENNETT:   We would say it does apply, your Honour, and I can develop that in a moment if it is necessary, but its application and/or validity are logically anterior to the substantive question.  Our proposal was that those anterior questions should be dealt with by a Full Court and before the substantive question is embarked on.

HIS HONOUR:   If section 486A applies and is valid, you do not get to the substantive question.

MR KENNETT:   That is right, your Honour, yes.

HIS HONOUR:   If it either does not apply or does apply and is invalid, “you” do get to the substantive question, but who is the “you”?  Can only a Full Court resolve the matter?  I do not think the Full Court is going to be greatly excited by the substantive point – may have no alternative.

MR KENNETT:   That may well be right, your Honour, and the substantive point in itself, we would say, is not one that needs to go to a Full Court.

HIS HONOUR:   A single Justice?

MR KENNETT:   Yes, but it is a question, I suppose, of what is, from the Court’s point of view, the neatest and most expeditious way of dealing with the case.

HIS HONOUR:   What do you say, Mr Lloyd, about whether or not the substantive question should go up with the section 486A question or not?

MR LLOYD:   I have proposed that it does, for two reasons, I suppose.  One is that I think procedurally the neatest way is to refer the show cause question to the Full Court because that – my friend says the Court does not have any jurisdiction to make the show cause orders, so, by referring that to the Full Court, it will be able to both deal with that question and the other question.  Also perhaps more pragmatically, I think it would be fair to say that 98 per cent of the work in this case will be on the constitutional question.  The statutory construction question I suspect will not take more than 10 or 15 minutes by either side.  The Court will be either with us or against us.  There is not like a huge amount of additional work involved. 

While I agree that as a question of complexity it is something which one might say the Federal Magistrates Court could quite ably deal with, the will of the people is that this Court will deal with it.  As to whether one Judge can deal with it, my impression was that an application for prohibition or mandamus could only be dealt with by one Judge if there was urgency, but my friend says otherwise.  I do not want to press it ‑ ‑ ‑

HIS HONOUR:   Are you looking at a particular rule?

MR LLOYD:   Yes, I thought it was ‑ ‑ ‑

HIS HONOUR:   Is it 25.03.3:

a Justice may order that:

(a)      the application be dismissed;

(b)the application be referred for further hearing by a Full Court; or

(c)the defendants show cause before the Court or a Justice why relief claimed by the plaintiff . . . should not be made on grounds specified in the order.

MR LLOYD:   I suppose that is true, “before the Court or a Justice”, so I suppose a single Justice could deal with it.  In any event, even assuming the Court has power – and I am…..content with that – it really, I do not think, would be much extra work for the Court.  It is going to be another two paragraphs in a judgment to say either we have construed it correctly or they have construed it correctly.  As far as I can find, there are no actual other cases on it; it is just going to be a pretty straightforward question of statutory construction which I accept might not in a normal course merit the Court’s attention, but it should not be a burden.

HIS HONOUR:   One of your points is that there is no other court that can deal with it?

MR LLOYD:   Precisely.  It would have to be at least a single Justice of this Court.

HIS HONOUR:   Yes, and one of your points is that your delay amounted to one day on the strength of a lawyer’s error.

MR LLOYD:   Well, not quite precisely.  My client wanted to appeal to the Migration Review Tribunal and was one day late to the Migration Review Tribunal and then was not told by his lawyer for some considerable period of time about what was happening in the MRT or that the MRT had rejected his application until such time as he was then well and truly too late to come to this Court.

HIS HONOUR:   Very well.  So what precise order do you want today?

MR LLOYD:   An order under 25.03.3 that this application be referred for further hearing by a Full Court and that would allow both the constitutional questions, the construction of 486A issue and what I…..the sort of substantive statutory construction of the regs issue ought to be dealt with, both parties to argue it fully so that, although strictly speaking it will be a show cause, the Court would be able to deal with it substantively.

HIS HONOUR:   One problem is that your amended application raises one thing only:  what we are calling the substantive issue.  The defendant has filed her own summons.  That has to be referred too.

MR LLOYD:   Order 5 of the amended application is an order that 486A is invalid if it is sought to be relied upon, which it has been, but it might be best, I suppose, to refer the summons as well as the application.  I think, your Honour, the parties are content that the amended application covers the whole of the issue but I think if the Court was minded to think that it would be better if the summons was also referred, my friend was inclined to make a slight amendment.

HIS HONOUR:   Yes.

MR KENNETT:   I do not have the form of words with me but the essential point is that the summons asserts that the application is incompetent.  That is one possible result of section 486A, we would say.  The other possible result is that the jurisdiction of the Court remains but the right to relief is taken away.  So if the summons were to go before a Full Court, we would wish to have the opportunity to amend it so that it encompasses both of those possible arguments.  As my friend says, we are really content at the end of the day that the application sufficiently raises the issue.

HIS HONOUR:   Let us just leave the summons on one side.  Apart from the amended application, what other documents ought to be before the Full Court apart from the four submissions you were talking about, Mr Lloyd?

MR LLOYD:   Which other documents?  I would have thought just the evidence will be a very small book really, the evidence which was relied upon today by us being the plaintiff’s affidavit, the amended application.  I am not sure that there would be anything else.

HIS HONOUR:   How long will it take to amend the summons, Mr Kennett?  For example, could it be done while the other matter in the list is proceeding?

MR KENNETT:   It could, your Honour, except that I am in that matter.

HIS HONOUR:   Could it be done within half an hour or so after that matter?

MR KENNETT:   Yes, I think so.  There is one other matter which I meant to mention and did not mention earlier, which is that there is a case in Justice Hayne’s docket in Melbourne which raises, as I understand it, questions about the validity of section 486A.  It is a case called Demydova v The Minister and his Honour has adjourned that matter until 9 October.  It is going to come back before him, at which point, as we understand it, he will

decide whether to refer it or remit it or whatever it might be.  I just thought your Honour should be aware of it.

HIS HONOUR:   Refer it or remit it?

MR KENNETT:   Refer it to a Full Court or – as I understand it, your Honour, the issue is immanent in that case but has not formally been raised on the papers.

HIS HONOUR:   Immanent, not imminent?

MR KENNETT:   That is right, your Honour, yes.  I hope the transcript can capture that.

HIS HONOUR:   Why did Justice Hayne adjourn it from some earlier date to 9 October?

MR KENNETT:   It was before his Honour on 24 August and was simply stood out of the list to be fixed on a date to be determined, which I believe is now to be 9 October.  There were questions in that case as to whether it should be dismissed on other grounds, so it may or may not end up before a Full Court on the point that my friend and I are at issue on.

HIS HONOUR:   If I can just interrupt, Mr Kennett.  Mr Jenkins, has that affidavit arrived?

MR JENKINS:   Yes, it has, your Honour.

HIS HONOUR:   I think I will adjourn this matter for about 10 minutes partly so that you can look at the affidavit and partly for other reasons, then I think we will hear Mr Jenkins’ matter and then we will return to this one in the hope of arriving at a concrete order.

MR KENNETT:   Your Honour, if it assists, I can hand up a copy of the Demydova transcript.

HIS HONOUR:   Thank you.  The Court will adjourn for 10 minutes.

AT 9.50 AM SHORT ADJOURNMENT

UPON RESUMING AT 10.00 AM:

HIS HONOUR:   I think that the best course would be if the parties agreed in stating the questions of law arising in this application in the form of a special case pursuant to rule 27.  What happens in Justice Hayne’s case need not affect the course of this case.  It may or may not come up at the same time.  How long would you need, Mr Lloyd and Mr Kennett, to agree to the questions and prepare a special case?  I will be in Sydney next week.  It seems desirable to have it done quickly.

MR LLOYD:   When suits your Honour?  We will meet your Honour’s convenience.

HIS HONOUR:   I think any day up to the middle of Thursday, in other words the whole of Monday, the whole of Tuesday, the whole of Wednesday and Thursday morning are available.  Why do we not aim at you preparing it by Wednesday and the matter being put in at 9.30 on Thursday morning.  It is just that it does seem desirable to have some precision as to precisely what facts underlie the orders which the Court is asked to make and in the questions that the Court is required to answer.  Is that satisfactory, Mr Kennett?

MR KENNETT:   That is convenient, your Honour.

HIS HONOUR:   I direct the parties to agree in stating the questions of law arising in this proceeding in the form of a special case for the opinion of the Full Court pursuant to rule 27.08 on or before noon on Wednesday, 20 September.  Secondly, I direct that the matter be listed before me at 9.30 on Thursday, 21 September.

MR LLOYD:   Can I just clarify that the case stated would deal with each of the questions?

HIS HONOUR:   Yes.  Is there anything further that needs to be done in that matter?

MR KENNETT:   Your Honour, I am not sure whether under the new rules it is necessary to certify for the attendance of counsel.

HIS HONOUR:   It goes without saying that costs are reserved.

AT 10.04 AM THE MATTER WAS ADJOURNED
UNTIL THURSDAY, 21 SEPTEMBER 2006