Burgess, Ex parte - Re MIMIA

[2003] HCATrans 735

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry         
  Sydney  No S306 of 2002

B e t w e e n -

BRIAN JOHN LAWRENCE BURGESS

Plaintiff

and

THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS OF THE COMMONWEALTH OF AUSTRALIA

First Defendant

THE COMMONWEALTH OF AUSTRALIA

Second Defendant

For directions

GUMMOW J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON MONDAY, 16 JUNE 2003, AT 2.15 PM

(Continued from 1/5/03)

Copyright in the High Court of Australia

__________________

MR R.F. WILKINS:   May it please your Honour, I appear for, I think, the plaintiff.  (instructed by Bruce Dennis Solicitor)

MR D.M.J. BENNETT, QC, Solicitor‑General of the Commonwealth of Australia:   If your Honour pleases, I appear for the defendants or the respondents, depending on how one characterises the order for addition of a party.  (instructed by Australian Government Solicitor)

HIS HONOUR:   Yes, Mr Wilkins.

MR WILKINS:   Your Honour, on the last occasion your Honour ordered that the matter proceed by way of statement of claim.  That has been filed and we have now ‑ ‑ ‑

HIS HONOUR:   And there is a defence as well, yes.

MR WILKINS:   Yes.  We have recently got the defence.  I think that the pleadings are now closed, your Honour.

HIS HONOUR:   Yes.  It may now be possible to state a case, I would think.

MR WILKINS:   Yes.

HIS HONOUR:   Now, can you tell me this, Mr Wilkins.  At paragraph 8 of the statement of claim there is a factual gap, in a sense.  Have you got paragraph 8 there of your statement of claim?

MR WILKINS:   Yes, your Honour.

HIS HONOUR:   It is said there:

Between June 1976 and July 1996 the Plaintiff travelled out of Australia on a number of occasions.

What passport did he use or what travel document?

MR WILKINS:   His British passport and, your Honour, I cannot ‑ ‑ ‑

HIS HONOUR:   Well, it had better be made clear that he holds a British passport and how long he has held it and its term, I suppose.

MR WILKINS:   Yes.

HIS HONOUR:   The term “British passport” is ambiguous these days because of the European Union.  It takes a different form now, I think, a British passport.  That had better be looked at, too.  In paragraph 13 – have you got that?

MR WILKINS:   Yes, your Honour.

HIS HONOUR:   It says:

On 24 October 1996 the Plaintiff was convicted –

In what court were the convictions?

MR WILKINS:   In the District Court, I think, your Honour.

HIS HONOUR:   Can that be checked?  District Court where?

MR WILKINS:   In Sydney – in New South Wales.

HIS HONOUR:   New South Wales.  So that if we look at the Commonwealth’s defence and just go to paragraph 13 of the Commonwealth’s defence.  They say you have applied for a visa and you were refused.  Now, that would be a visa to be entered in this British passport, would it?  Was that what was sought?

MR WILKINS:   No, your Honour.  I am not sure what was sought.

HIS HONOUR:   It is a little mysterious.  I thought your case was, and I may be wrong, that you do not need a visa.

MR WILKINS:   Yes, your Honour is right.

HIS HONOUR:   Yes, all right.  The question – I will just suggest it in general terms to you both – might be put in the stated case – I am not sure this is right, but it might be put:  (1) upon its proper construction does the Migration Act 1958 (Cth) require the plaintiff to hold a visa if granted thereunder by the first defendant, who is the Minister: (a) to travel to and enter into Australia; and (b) to remain in Australia? I think the Solicitor would say yes, because you are a non‑citizen. On the provisions of the Act, section 13 and following apply to you because you are a non‑citizen.

MR WILKINS:   Yes, your Honour.

HIS HONOUR:   Then the second question would be:  if yes, in answer to (1)(a) or (1)(b) or both, is the Act valid in imposing that requirement upon the plaintiff?  Now, you can give some consideration to that.

MR BENNETT:   Yes, that puts it accurately, your Honour.  As a matter of legal argument, it does not break it up conveniently because, in a sense, there are two separate arguments:  the Patterson argument and the right of return argument.

HIS HONOUR:   Yes.

MR BENNETT:   But that may not matter because the Patterson argument will be decided now whatever happens ‑ ‑ ‑

HIS HONOUR:   By that time, hopefully, yes.

MR BENNETT:   Yes.

HIS HONOUR:   Could a case be formulated using the materials from the pleadings supplemented as I have indicated?

MR BENNETT:   Your Honour, I think both parties were, before we started this morning, content with our version of the case stated, subject to consequential alterations about the descriptions of the parties.

HIS HONOUR:   Right.

MR BENNETT:   But your Honour suggested some matters which perhaps should be added to it.

HIS HONOUR:   Yes, if that can be done.

MR BENNETT:   That can certainly be done, your Honour.

HIS HONOUR:   I could sign it in chambers without any further attendance.

MR BENNETT:   Yes, we would both be grateful for that, your Honour.

HIS HONOUR:   All right.  Will you take the additional carriage of that, Mr Solicitor, and consult with Mr Wilkins as need be?

MR BENNETT:   Yes, your Honour, very well.

HIS HONOUR:   All right.  All I have to do then is adjourn the matter for consideration in chambers of a draft case and certify for counsel for this afternoon’s attendance.  Is there anything else, gentlemen?  I do not think so.  Thank you.  I will now adjourn.

AT 2.22 PM THE MATTER WAS ADJOURNED