Huynh v Minister for Immigration and Citizenship

[2012] HCATrans 44

[2012] HCATrans 044

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S49 of 2012

B e t w e e n -

HOAI HAN HUYNH

Applicant

and

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

Application for injunction

HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON THURSDAY, 23 FEBRUARY 2012, AT 4.16 PM

Copyright in the High Court of Australia

MR J.D. SMITH:   If it please the Court, I appear for the first defendant, the Minister.  (instructed by DLA Piper Australia)

HIS HONOUR:   The position is this, as I understand it.  Arrangements have been made to take the plaintiff out of Australia tomorrow morning.  I think the Registry may have raised with the first defendant the possibility of the plaintiff being taken from Villawood to here tomorrow morning so that a hearing could take place and if it was successful from his point of view, that would one thing and if it was not, he will proceed to the airport.  I gather that is not regarded as satisfactory?

MR SMITH:   As I understand it, it is a practical difficulty rather than whether the Minister is satisfied.  In practical terms, as I understand it, because of the security arrangements getting to the airport and through the various security elements and Customs at the airport, the departure from the court here at 7.00 am would allow sufficient time to arrive at the airport to leave on the 11.35 am flight for Ho Chi Minh.

HIS HONOUR:   You mean a departure at 7.00 am from Villawood?

MR SMITH:   No, from here.

HIS HONOUR:   Well, I am afraid I do not think the case calls for sitting at 5 o’clock in the morning.  It is not possible to sit tonight and presumably there are going to be difficulties about bringing the plaintiff here tonight.  I do not see any practical alternative but that the grant of an injunction as sought in order 1 of the summons, which has not yet been filed – do you have a copy of the proposed summons?

MR SMITH:   I do, your Honour.

HIS HONOUR:   A grant of a temporary injunction till the end of tomorrow and a hearing at 9.30 in the morning.  What are the practical problems, if any, with that?

MR SMITH:   Well, as I understand it, if the departure tomorrow does not go ahead, then it will take some other time to fix a further departure date.

HIS HONOUR:   Arrange one, yes.

MR SMITH:   I think there have to be at least two accompanying ‑ ‑ ‑

HIS HONOUR:   But the problem is we cannot just permit the plaintiff to be deported without a hearing unless you have some very good argument.

MR SMITH:   No, I understand that, your Honour.

HIS HONOUR:   Is there any problem then with adjourning with a grant of an injunction until 4.00 pm on 24 February in terms of order 1 and the matter being fixed for further hearing at 9.30 tomorrow?

MR SMITH:   In light of those difficulties, your Honour ‑ ‑ ‑

HIS HONOUR:   A further difficulty is the Court goes off to Canberra next week.  It is going to be rather hard to hear the matter – or it will be less convenient to have the matter heard there than it would be to have it heard tomorrow.  There is a further problem which is that the affidavit is exiguous.

MR SMITH:   As to grounds?

HIS HONOUR:   Yes.  I mean, a fundamental question in relation to whether any injunction lasting any period of time – let me start again.  The plaintiff seems to structure the position as follows.  He lost in front of Justice Bell.  He has what he calls a right to apply for leave to appeal against Justice Bell’s orders and now whether he has a sufficient case to make one think that so‑called right is of any value would depend on what his grounds of attack upon Justice Bell are.  I think the Court will be in a position to provide an interpreter tomorrow, but presumably we shall have to wait and see as to whether the plaintiff is able to formulate any grounds tomorrow morning.

MR SMITH:   He has in his application for leave specified some errors.

HIS HONOUR:   You have the advantage of me.  I have not got an application for leave.  I will tell you what I have.  I have a summons that has not been filed and an affidavit which was filed today.  What do you have?

MR SMITH:   There is an application for leave to appeal filed yesterday which has a number of grounds specifying errors in her Honour Justice Bell’s judgment.

HIS HONOUR:   All right.

MR SMITH:   That might fill in some of the gaps.

HIS HONOUR:   Yes, all right.  Well, I think there is not much we can do except proceed as I have indicated.  Do you see any alternative to what I have said.

MR SMITH:   Not in any realistic terms.

HIS HONOUR:   Unless you have anything further to add, I think I need not trouble you further. 

The position is this.  Justice Bell, on Tuesday, 14 February, refused certain relief which the present plaintiff sought.  On that day, an injunction which had earlier been granted by Justice Crennan to restrain the removal of the plaintiff from Australia expired at 4.00 pm after Justice Bell completed delivering her reasons for judgment.

The plaintiff wishes to file a summons seeking orders prohibiting his removal from Australia tomorrow.  The Department of the Minister for Immigration and Citizenship on 15 February 2012, through Mr Graeme Campbell, informed the plaintiff, in effect, that he would be removed from Australia on 24 February 2012.  On 20 February 2012, Mr Campbell appears to have procured the service of a notice of intention to remove from Australia on Friday, 24 February 2012 at 11.35 am.

The Court would have been in a position to hear the application tomorrow morning at 8.00 am, but counsel for the Minister has informed the Court that in all the circumstances it is not possible for the plaintiff to be placed on the flight on which he is presently booked, namely, a flight leaving at 11.35 am tomorrow, being VN 772 arriving in Ho Chi Minh City, Vietnam, later that day and also accommodate a hearing at 8.00 am. 

There, therefore, seems no alternative but to grant an injunction until 4.00 pm tomorrow and to fix the plaintiff’s application for 9.30 am tomorrow.  In those circumstances, I order the first defendant not to remove the plaintiff from Australia on Friday, 24 February 2012 and I order that that order will expire at 4.00 pm.  Is there anything else?

MR SMITH:   No, your Honour.

HIS HONOUR:   Thank you very much.  The Court will now adjourn.

AT 4.25 PM THE MATTER WAS ADJOURNED