Kaur v Minister for Immigration and Border Protection
[2015] HCATrans 208
[2015] HCATrans 208
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Perth No P6 of 2015
B e t w e e n -
SUKHBINDER KAUR
Plaintiff
and
MINISTER FOR IMMIGRATION AND BORDER PROTECTION
Defendant
NETTLE J
TRANSCRIPT OF PROCEEDINGS
FROM MELBOURNE BY VIDEO LINK TO PERTH
ON FRIDAY, 21 AUGUST 2015, AT 2.15 PM
Copyright in the High Court of Australia
MR G.M.G. McINTYRE, SC: I appear for the applicant, your Honour. (instructed by iLaw)
MR P.R. MACLIVER: If it please your Honour, I appear for the defendant. (instructed by Australian Government Solicitor)
HIS HONOUR: Yes, Mr McIntyre.
MR McINTYRE: Your Honour will have our outline of submissions.
HIS HONOUR: Yes, thank you.
MR McINTYRE: We, of course, raise several grounds in relation to the decision of the delegate. I think I can most helpfully take your Honour to those grounds and elaborate a little on the written submission.
HIS HONOUR: Yes, certainly.
MR McINTYRE: So, in relation to ground 1 which we deal with on page 4 of our written submissions, the essence of our argument is that the delegate and, of course, the applicant in this matter had before ‑ were dealing with a particular set of regulations which set out the things to be taken into account in relation to whether or not the applicant was a de facto couple or in a de facto relationship.
HIS HONOUR: Certainly.
MR McINTYRE: Now, what my learned friends argue against us is that that is an inclusive set of criteria. Of course, it is. Essentially, our contention in relation to ground 1 is that whilst that is right, that it is an inclusive set of criteria, so it does allow for the possibility of the decision‑maker going beyond the specific criteria, effectively, it does not allow for that to occur in an uncontrolled manner.
We say that the decision‑maker created an impossible task really for the applicant to satisfy the decision‑maker by going beyond what was set out in the regulation in a variety of different ways: firstly, by adopting criteria which were wider than what was specified, by obliging the applicant to comply with more onerous sorts of conditions than were specified, and, in some respects, taking into account things which were irrelevant.
So, we set out there at 9 of our written submissions that not only did the delegate require them to present as a de facto couple but present as a de facto couple to the wider community, which is not a requirement anywhere specified in the regulations. Not only did there have to be social activities, which are specified in the regulations, but the delegate required them to be regular social activities. The delegate also required the applicant to belong to organisations or groups in order to satisfy the delegate. Nowhere is that specified in the regulations.
What we are suggesting is that the applicant needs to know what it is that it has to bring along to prove that there is the de facto relationship. If those sorts of criteria are going to be applied where it is nowhere stated in any regulation then the applicant has no prospect of knowing that that is what the applicant must establish for this particular decision‑maker ‑ ‑ ‑
HIS HONOUR: That point really goes to a later one or two of your grounds, does it not, that there was not brought to the attention of the applicant the information that was thought to be pertinent? This is really a different point, is it not, of whether the delegate has gone beyond the ambit of the discretion into considerations which were not pertinent to its discharge?
MR McINTYRE: Yes, that is right, your Honour, and there is a certain level of overlap between those various grounds.
HIS HONOUR: Yes. Just staying with ground 1, I must say that it seems to me there is some substance, at least as at present advised, in the submission that the factors that have been identified by the delegate are directly relevant to the considerations adumbrated in paragraphs (c)(i), (ii) and (iii) of the regulation 1.09A(2). I mean, they are slightly different words but they are in substance on all fours with those criteria, are they not, and I put aside the question of whether the necessity to prove them was sufficiently brought to the attention of the plaintiff. Just as to the question of relevance, they surely are relevant.
MR McINTYRE: I think your Honour is right. I mean, I think we have set that out as a ground. What my learned friend says against us is well, it is not an exclusive set of criteria and those matters are relevant, so to that extent we might not succeed on that ground.
HIS HONOUR: All right, on ground 1. What about ground 2? Does it add anything to ground 1, the financial aspect?
MR McINTYRE: What we say is that the delegate has effectively created another test, and so the test under regulation 1.09A(3)(a)(v) was to consider the “basis of any sharing of day‑to‑day household expenses”. That is a different thing from whether or not there was a general sharing of household expenses. So we say that these are quite specific criteria and it really was not open for the delegate to alter the criteria and create effectively a different test, so that is really the essence of that ground.
HIS HONOUR: Right.
MR McINTYRE: We follow that up with paragraph 12 which says that the taking into account – that surely the bank statements ought to have been understood as a basis for “sharing of day‑to‑day household expenses”. So the delegate has just discounted them as providing no evidence to support that criterion.
HIS HONOUR: That is not really a ground though, is it? You are not contending that the delegate failed to have regard to a relevant consideration; simply that he had regard to the wrong consideration.
MR McINTYRE: Yes, I think your Honour is probably right in that regard.
HIS HONOUR: Just so there may be no mistake about this, it does seem to me, as at present advised, that the question of daily household – general sharing of daily household expenses, which was the language used by the delegate, is pertinent to the question of general sharing of household expenses, which is the criterion set out in the regulation. I mean, I cannot really think there is much difference between sharing of daily household expenses and the sharing of day‑to‑day household expenses. It is the same thing by a different name.
MR McINTYRE: Yes. Having heard your Honour, I will move on to ground 3.
HIS HONOUR: Yes, 3 is better. Thank you.
MR McINTYRE: We have put that in the alternative. We have firstly said that – well, we have said there was a failure to exercise jurisdiction or in acting unreasonably. I am not sure that they are true alternatives. But the essence of it is that there was a failure to make an obvious inquiry about critical facts and we say that that was about the de facto status to Centrelink.
HIS HONOUR: I take the point. What do you say to the defendant’s response that by that long pro forma letter of 10 October 2014 the delegate made it patently clear that he wanted a whole lot of information about all sorts of things of which it should have been obvious to anybody that the information now in question ought be provided.
MR McINTYRE: There is probably some difficulty with the length of that set of criteria and working out in what precise detail the delegate was seeking so that one goes to that. It is in Mr Corbould’s affidavit - at page 153 it commences.
HIS HONOUR: Yes.
MR McINTYRE: It starts by saying in the first paragraph that they “require additional information”. Then, as your Honour points out, there is a checklist. They are, not unsurprisingly, of a general nature related to the regulations to some extent and expanding upon them. But I suppose to suggest that there was some requirement to provide corroborative evidence in relation to the Centrelink – the application for Centrelink benefits certainly does not jump out at one from that of a general set of criteria, so that would be our answer to that submission from the respondent.
HIS HONOUR: What of the respondent’s contention that well, assume for the sake of argument that is so, it really cannot be posited that this was a critical fact or vital information such as to give rise to jurisdictional error?
MR McINTYRE: Well, one has to look at how the decision‑maker has constructed the reasons for decision.
HIS HONOUR: Yes.
MR McINTYRE: In one respect it might be said that it is hard to tell one way or the other because they are relatively brief submissions and they do not necessarily provide sort of emphasis as to what was regarded as essential and what was not. If you go to page 191 of Mr Corbould’s affidavit you are at the fourth page of the reasons for decision, and between lines 20 and 30 there is a reference to the Centrelink issue. So what the decision‑maker says:
On your personal statement, it states that you declared your de facto status to Centrelink in October 2011, however, you have not provided any evidence to substantiate your claim.
Now, we would say that there is no reason to suspect that that was not an essential finding. In fact, we would suggest, given the relatively limited quantity of the reasons for decision and the findings made, the better inference is that it was one of the essential findings.
HIS HONOUR: Yes.
MR McINTYRE: I will come to this again in another ground, but it is also said about ‑ what is said at lines 30 to 40 where the issue comes up about the travel, it is again argued that that is not an essential finding. Well, given the lines between 10 and 40 and their limited nature, one would say that the obvious inference is that all of those findings were essential findings to the ultimate conclusion.
HIS HONOUR: Yes. Does that take us to ground 4?
MR McINTYRE: Yes.
HIS HONOUR: This is the flight - this is the very point, is it not, about whether or not she was with the sponsor when she travelled overseas in February 2014?
MR McINTYRE: Yes, that is right, your Honour. I see from my learned friend’s submissions that they concede that that was an error.
HIS HONOUR: Yes, but they say that because it relates to something after the relevant 12‑month period it plainly cannot be critical or even significant.
MR McINTYRE: Yes. Well, we, of course, do not agree with that. We say that certainly it happened afterwards, but it would appear from the way in which the decision‑maker expressed this matter that the decision‑maker clearly took it into account as an issue, and rightly so. Merely because it happened afterwards is not a reason not to take it into account in inferring what may have existed at a previous time.
HIS HONOUR: Yes.
MR McINTYRE: It is clearly part of the factual matrix from which one would draw inferences as to what happened during the relevant 12 months and particularly the way the delegate has expressed it. So if you go again to page 191, the paragraph starting at about line 33 saying:
While I am satisfied that you and your sponsor were known to each other in June 2010 and claimed to be in a de facto relationship in November 2010 and committed to a shared life together to the exclusion of all others on 11/11/2011. However, there is no convincing evidence that 12 months prior to the application lodgement, you saw the relationship as a long‑term one or that you had a commitment to a shared life together.
HIS HONOUR: Just pausing there, it is internally inconsistent, is it not? You are satisfied that they committed to a life together to the exclusion of all others on 11 November 2011, but then there is no convincing evidence that 12 months prior to the application, which would have been about 11 November 2011, they had a commitment to a shared life together.
MR McINTYRE: Yes, your Honour. Then in relation to this particular ground he immediately goes on in the next paragraph to say “Nevertheless”, so there is a connection between that previous paragraph and this.
HIS HONOUR: That is illogical because the first proposition is negative then there is a “Nevertheless” as if it were contradicting it, but the following proposition is also negative.
MR McINTYRE: Yes. But for the purpose of this ground we say he has clearly taken it into account, that they departed for two months without one another and now that is ‑ ‑ ‑
HIS HONOUR: We know as a fact, do we not, that they went together now?
MR McINTYRE: That is right.
HIS HONOUR: Yes.
MR McINTYRE: Yes, been conceded. That comes in again at ground 6 but we will come back to that in a moment. So dealing then with ground 5, is the general procedural fairness issue which I probably started running into ground 1. But the ultimate problem with this process is that it has in a composite way resulted in a lack of procedural fairness. Now, we have suggested in our submissions that probably there should have been a hearing.
Clearly all of the authorities tell us that there is no fixed and fast rule as to how procedural fairness is to be applied and perhaps it may be going too far to suggest that the only way to provide procedural fairness would be a hearing, but what this case is an example of is what can go wrong in terms of providing procedural fairness by a process of the kind which was adopted and that is essentially that they seem to have been ships passing in the night on a number of issues.
The delegate has reached conclusions about matters of fact which may well have been able to be clarified if there had been some form of appropriate interchange, the kind which would normally happen in an ordinary court proceeding but, of course, could happen by other means. So that the applicant knew, for example, that the delegate was going to take into account the fact that they had not travelled together, in which case they would have found the facts and convinced the delegate of that.
The issue about the bank statements, the delegate has found that bank statements alone do not establish evidence of day‑to‑day living. Well, if the delegate had let them know about that, then they may have been able to provide something else which did establish that the bank statements showed day‑to‑day living – showed day‑to‑day living expenses being shared.
At 20(c)(i) we have listed issues relating to the single cover for the health cover and the Centrelink issue. All of these things, as we say, lack that element of the case being put to the – or the thinking of the decision‑maker being exposed to the party so that the party understands what it is which the decision‑maker may ultimately take into account as facts upon which the decision‑maker will rely so that the party has an opportunity to understand that and to provide additional comment or put adverse submissions or otherwise engage in some process which provides them with a degree of fairness.
We say that the fairly stilted process which did occur, that is, a letter with a set of general headings saying, look, you need to provide us with these categories of information, is not sufficient and it is proven in a case such as this not to be sufficient, particularly bearing in mind, we would say, the particular circumstances of this party. Procedural fairness is something which must be adapted to the circumstances which the decision‑maker is faced with.
HIS HONOUR: Do you mean by that the ethnicity of the plaintiff?
MR McINTYRE: Yes, the language skills, all of those things, the lack of sophistication – I mean, if there had been a migration agent or a legal practitioner assisting this applicant I probably would not – I would be unlikely to be able to come along and make a submission of that kind, but that was not the situation and the decision‑maker has a different level of responsibility in order to provide the procedural fairness which would be required to result in a fair process.
HIS HONOUR: Yes.
MR McINTYRE: The final ground is a more technical statutory ground. Section 57 of the Migration Act says that – it defines “relevant information” as:
information (other than non‑disclosable information) that the Minister considers:
(a)would be the reason, or a part of the reason, for refusing to grant a visa; and
(b)is specifically about the applicant or another person . . .
(c)was not given by the applicant for the purpose of the application.
(2)Subject to subsection (3), the Minister must:
(a)give particulars of the relevant information . . .
(b)ensure, as far as is reasonably practicable, that the applicant understands why it is relevant . . .
(c)invite the applicant to comment on it.
We say that that provision was relevant to the finding in relation to the parties not travelling together. It was relevant information we say for the reasons which I think I probably already indicated, that it seems from the place of that finding in the reasons for decision that it was a matter which was taken into account by the decision‑maker. My learned friends say against us that it is not relevant information, that it could be dismissed because it was after the 12‑month period, therefore it does not fit within section 57, therefore our ground fails because it is just not a section 57 matter ‑ ‑ ‑
HIS HONOUR: I notice that you did not include in ground 6 any reference to the failure to inform the plaintiff of the significance which the delegate proposed to attribute to the lack of corroboration of the report to Centrelink. Was there any reason?
MR McINTYRE: No.
HIS HONOUR: Is that in a different category? Does it not come within 57(2) or is it information of a similar kind?
MR McINTYRE: It is the drawing of an inference, I suppose.
HIS HONOUR: As opposed to information?
MR McINTYRE: Yes, I think that is probably the answer, yes.
HIS HONOUR: Yes, thank you.
MR McINTYRE: I think that is probably all I can assist your Honour with, unless there is anything else.
HIS HONOUR: No, thank you, Mr McIntyre, that is very helpful. Mr Macliver, I need not trouble you on grounds 1 and 2, but I am interested to hear what you say about grounds 3 to 6.
MR MACLIVER: Yes, thank you, your Honour. I thought that might be the case. Your Honour, in relation to ground 3, which is the ground of alleged constructive failure to exercise jurisdiction or that the delegate acted unreasonably, failing to make an obvious inquiry about a critical fact, that is whether the plaintiff made a declaration to Centrelink ‑ ‑ ‑
HIS HONOUR: Yes.
MR MACLIVER: We have referred in our outline of submissions at paragraphs 26 and 27 to the High Court decision of SZIAI and, of course, the applicant relies in part upon that decision. Of course, your Honour, the defendant relies upon paragraphs 28 to 33 of its outline of submissions.
HIS HONOUR: Yes.
MR MACLIVER: I would also like to take your Honour to an additional statement by his Honour Justice Flick in the decision below in relation to which the High Court was dealing – it is the SZIAI decision. So this is SZIAI v Minister for Immigration and Citizenship [2008] FCA 1372 and I think it is reported 104 ALD 22.
HIS HONOUR: Thank you.
MR MACLIVER: I would also, as I say, like to take your Honour to paragraph 26 of his Honour Justice Flick’s decision where his Honour, after referring at 25 to the fact that there may be certain circumstances in which a failure to make an inquiry might amount to a breach of procedural fairness - and his Honour refers there to a number of decisions including, of course, his Honour Justice Wilcox’s decision in Prasad – but at 26, your Honour, he went on to say this:
Whether or not it is unreasonable not to make further inquiries may well depend upon the availability of further information and its importance to the factual issues to be resolved. It may also depend upon the subject matter of inquiry and an assessment of the comparative ability of individuals to provide or to obtain relevant information. There may thus be little (if any) scope for a duty upon a decision‑maker to inquire into facts well known to an applicant and facts within his power to adduce –
Here, of course, the making of a declaration to Centrelink, if that did occur, was well known to the plaintiff and was clearly within her power to obtain confirmation from Centrelink of that fact.
HIS HONOUR: Mr Macliver, the point is why should she have supposed that her word would have been doubted? In other words, she had put in the application form the fact to which she has now sworn in her affidavit that she had made that report to Centrelink. What was to alert her to the fact that she was suspected of not telling the truth about that?
MR MACLIVER: The fact, your Honour, that the delegate, on the information and material that the plaintiff had provided, was not satisfied that that was sufficient to enable him to make a decision to grant the visa which had been sought and he sought and invited the plaintiff to put on further information.
HIS HONOUR: But did he refer in that letter of 10 October 2014 to his suspicions about the veracity of the report to Centrelink?
MR MACLIVER: No, your Honour, I cannot obviously say that he did that, and there is no specific reference in that letter ‑ ‑ ‑
HIS HONOUR: Well, without being too captious about it, how is an Indian applicant for a Partner visa supposed to know that her word about reporting something to Centrelink is doubted, unless she is told?
MR MACLIVER: Yes, all I can say, your Honour, is that she was given the opportunity to put forward whatever further information she thought – or would help the delegate to be satisfied of the relationship and, of course, in relation to the various categories because there has been no evidence put before this Court about that, your Honour. In other words, the plaintiff has not sought fit to subsequently, for the purpose of these proceedings, make an inquiry of Centrelink and provide that evidence before this Court.
HIS HONOUR: Has she not deposed in her affidavit that she did declare it to Centrelink in October 2011?
MR MACLIVER: I think she does, your Honour, but there is no ‑ ‑ ‑
HIS HONOUR: Well, no one has cross‑examined this evidence on oath.
MR MACLIVER: Yes. My point is that there is no evidence from her that she has approached Centrelink and obtained some written confirmation from Centrelink which it is said she could have obtained previously if ‑ ‑ ‑
HIS HONOUR: She had known.
MR MACLIVER: ‑ ‑ ‑ as my learned friend says ‑ or suggests that if she had been notified of that.
HIS HONOUR: Yes. All right, thank you.
MR MACLIVER: Your Honour, we would, in conclusion in relation to this ground, say that this is not one of those rare cases in which a statutory decision is vitiated because of a decision‑maker’s failure to make inquiries, and we refer to the statement by his Honour Justice Wilcox, quoted by Justice Flick earlier at paragraph 25 of his reasons for judgment at about point 15.
HIS HONOUR: Mr Macliver, as to that, what do you say concerning the plaintiff’s submission that if you look at the structure of the reasons for determination it appears that what the delegate believed to be the fact that he could not accept that there had been a declaration to Centrelink in October 2011, and what he believed to be the fact that she had travelled alone in February 2014 were both critical to the determination? Do you accept that it is apparent from the face of the reasons that those two findings appear to have informed the ultimate conclusion of non‑satisfaction as to the existence of a bona fide de facto relationship?
MR MACLIVER: Your Honour, I would say not so in the case of the issue of the travelling.
HIS HONOUR: Yes.
MR MACLIVER: Or the later travelling. There were, I think, four separate instances of travelling which the delegate noted. I would submit to your Honour that the error made by the delegate in relation to the final travel made by the plaintiff and her sponsor was not critical because what was critical here was the requirement that – and this is a combination from, I think, clause 820.211(2) of the Migration Regulations dealing with this particular category of visa and regulation 2.03A(3) ‑ as at the date of the application, which was 1 October 2013, the applicant’s – the plaintiff in this proceeding had to establish that she and her sponsor were in a de facto relationship for a minimum period of 12 months prior to that date of application, and here the delegate was not so satisfied. Because of that lack of satisfaction and failing to meet that requirement the visa application had to be refused.
So in relation to that we say that the issue and the error made by the delegate in relation to the subsequent travel in 2014 we say was clearly not critical to the delegate’s finding that it was not satisfied there was in fact a relationship in the 12 months prior to the application.
HIS HONOUR: All right. What about the Centrelink declaration in October 2011, what do you say as to that? The plaintiff submits it appears to be critical from these reasons, and I suppose it would be if you declared it to Centrelink presumably that means you go without some benefits to which you would otherwise be entitled.
MR MACLIVER: That is possibly the case, your Honour, without knowing the exact statutory provisions, but that may well be the case. It is certainly a matter of a more critical nature than the subsequent travel in respect of which the delegate made an error. We have made the submission at paragraph 33 of our outline that it is not evident that the delegate could easily have made that inquiry to Centrelink, or that the outcome of such an inquiry would prove critical to the delegate’s decision in light of ‑ ‑ ‑
HIS HONOUR: I saw that, but what about just writing in his letter, “Please send me some confirming documentation in support of your allegation that you reported the matter to Centrelink”? You could do that easily enough, could you not?
MR MACLIVER: Yes, he could have done that and certainly, your Honour, we have to concede that he obviously did not do that. But what he did do, we say, was to give the applicant an opportunity to put forward any further evidence that she wished to do so and it was certainly within her capacity to ask Centrelink, if she had made that declaration, to provide some confirmation of it and it is our ‑ ‑ ‑
HIS HONOUR: Mr Macliver, could I ask you for assistance really? I know one ought not be - one ought be careful not to impose undue burdens on decision‑makers when making administrative decisions. I realise these things are turned over at an alarming rate of knots and that they have to be, but is there any more guidance as to the content of the obligation to inform and seek further submissions than we get from SZIAI?
MR MACLIVER: I am not sure that there is, your Honour, and although there have been a number of decisions about this issue ‑ but, of course, they all, in my recollection, relate to an obligation on the part of the Tribunal, either the Refugee Review Tribunal or the Migration Review Tribunal – now, of course, simply the Administrative Appeals Tribunal. Of course, that also must be considered, we would submit to your Honour, that this is a continuum of decision‑making and what might be expected and required of a tribunal which is making the final decision on the merits might be something that is not required of a decision‑maker earlier in that statutory decision‑making process.
HIS HONOUR: That sounds counterintuitive. One would suppose that the decision‑maker whose decision it might usually be supposed would stand would be required to do everything that could reasonably be done to make sure it is a correct decision, would one not?
MR MACLIVER: Yes, your Honour, but with the caveat that there is a further avenue to an applicant to have an adverse decision reviewed on the merits. As your Honour has pointed out, this is a high volume decision‑making process and I would submit that given the statutory framework and the provisions for the Minister and, therefore, of course, a delegate of the Minister to seek information and to, specifically under subsection 58(1), be able to specify whether that information should be given either in writing or at an interview or by telephone, that in the circumstances of this case, your Honour, there is no jurisdictional error as contended by ground 3.
HIS HONOUR: Yes, thank you.
MR MACLIVER: Your Honour, turning then to ground 4, which is the alleged constructive failure to exercise jurisdiction in assessing the commitment under regulation 1.09(A)(3)(d) because of the incorrect finding of a critical fact, as we have said in our submissions, it is not in dispute that the delegate made a factual error but we would submit to your Honour that this factual error does not amount to a jurisdictional error by the delegate.
As I have already submitted to your Honour, the critical issue in this case, in this matter, was whether the plaintiff and her sponsor were in a de facto relationship as at the date of the application and for at least the period immediately preceding 12 months. In those circumstances, your Honour, we say that it was simply not critical to the decision that the plaintiff and her sponsor had travelled together on 1 March 2014 and particularly, we would submit, when it is clear that the delegate in assessing whether he was satisfied that there was a de facto relationship for the 12‑month period prior to the making of the application had taken into account that the plaintiff and her sponsor had travelled together both prior to that 12‑month period and during it.
So we would submit that clearly an error made in relation to a subsequent period of travel was not critical to and could not have affected the delegate’s conclusion as to his lack of satisfaction that the de facto relationship had existed for at least that 12‑months period prior to the application.
HIS HONOUR: Yes.
MR MACLIVER: Turning then, your Honour, to ground 5, which is the breach of procedural fairness ground, a general ground that:
The Delegate failed to accord procedural fairness to the Plaintiff by determining the Visa Application adversely to the Plaintiff on the sole basis of documentary material supplied by the Plaintiff and by failing to invite her to an interview –
your Honour, the defendant’s position is, of course, that there was no such breach of procedural fairness by reason of the delegate inviting the plaintiff to provide information in writing. This was clearly an option that was available to and provided by section 58(1) of the Migration Act. It provides that:
(1)If a person is:
(a)invited under section 56 to give additional information . . .
the invitation is to specify whether the additional information or the comments may be given:
(c)in writing; or
(d)at an interview . . . or
(e)by telephone.
HIS HONOUR: Has there yet been any decision, reported decision, in which has been considered whether the Minister or a delegate is required to consider the means that he asks the information to be communicated by?
MR MACLIVER: I am not aware of any such decision, your Honour. My instructing solicitor is not aware of any.
HIS HONOUR: What I have in mind is ‑ ‑ ‑
MR MACLIVER: My learned friend has not referred to any in his submissions.
HIS HONOUR: No. Presumably, it would not be much point sending a formally typed letter to someone whom a delegate knew or suspected to be illiterate or poorly educated or otherwise incapable of comprehending the meaning of what was written.
MR MACLIVER: Yes.
HIS HONOUR: I wonder has there been any consideration given to whether, in such circumstances, there is an obligation, at least upon the decision‑maker, to consider using the alternative of a face‑to‑face, or a chat on the telephone?
MR MACLIVER: Yes. Well, of course, there is no suggestion of that here but, of course, frequently that is the case in relation to applications for protection visas, your Honour. Certainly my experience in dealing with review of adverse decisions of the delegate – well, invariably adverse decisions of subsequent review by the former Refugee Review Tribunal, it is quite frequently the case that the delegate who made the initial decision did interview the protection visa applicant and, of course, with the use of appropriate interpreters.
HIS HONOUR: Yes.
MR MACLIVER: So, your Honour, certainly there is no, if you like, general policy that only written invitation to provide information will be sought and it depends upon the individual circumstances.
HIS HONOUR: Yes, thank you.
MR MACLIVER: But we say to your Honour that there is no basis, we would submit, for your Honour to find jurisdictional error in this matter because the delegate here did seek that information in writing under section 58(1)(c) rather than ask the plaintiff to attend an interview under section 58(1)(d).
HIS HONOUR: I was wondering about that - if, in Aala, a letter had been sent to Mr Aala along the lines of the letter of 10 October 2014, whether the decision of the High Court would have been any different.
MR MACLIVER: Yes.
HIS HONOUR: One supposes not, presumably.
MR MACLIVER: No, your Honour. My learned friend in his written submissions refers to the High Court’s decision in Lam where their Honours Justices McHugh and Gummow quote from an earlier decision of his Honour Justice McHugh about drawing critical issues or factors to a person.
HIS HONOUR: Yes.
MR MACLIVER: We say, with respect, that that is not the case here, your Honour, where, because of the statutory scheme and the very detailed provisions of the Migration Regulations and the criteria specified in those regulations for each individual category, class and subclass of visa, that the critical issues or factors are provided by statute and it is not a case that has to be drawn to a visa applicant’s attention - critical factors in the terms that were stated by his Honour Justice McHugh in the passage quoted in Lam.
Your Honour, finally then turning to ground 6, the contention here is that the delegate failed to comply with section 57(2) of the Migration Act which requires a Minister to give particulars of the relevant information to an applicant in the way that the Minister considers appropriate, that is, information of the kind defined in subsection (1) as relevant information.
HIS HONOUR: That is almost a codification of Lam, is it not?
MR MACLIVER: It is, your Honour, and what it makes clear, though, is that relevant information does not include information that was given by an applicant for the purposes of the application. So it is not a provision which requires a decision‑maker, a delegate of the Minister, to give information about his or her thought processes or about inferences that they might draw from existing information. We say in the circumstances of this case, the contention that it was jurisdictional error by a failure to comply with section 57 and, in particular, subsection (2) is just not made out, your Honour.
HIS HONOUR: Just bear with me. You say, therefore, that information which might have corroborated the assertion of reporting the relationship to Centrelink would not be relevant information?
MR MACLIVER: Not be relevant information for the purposes of section 57, your Honour.
HIS HONOUR: Tell me why, please.
MR MACLIVER: Because of the definition, your Honour, of “relevant information” in section 57(1):
In this section, relevant information means information . . . that the Minister considers:
(a)would be the reason, or a part of the reason, for refusing to grant a visa; and
(b)is specifically about the applicant or another person and is not just about a class of persons . . . and
(c)was not given by the applicant for the purpose of the application.
HIS HONOUR: I follow that.
MR MACLIVER: It is information in the possession of the decision‑maker, the delegate, that was not given by the applicant.
HIS HONOUR: Right, I follow that. Thank you. What about the information concerning the flight abroad in the Department of Transport’s records – or Department of Immigration’s records, I think it was?
MR MACLIVER: Yes, the Department of Immigration’s records, your Honour.
HIS HONOUR: Would that be relevant information as defined?
MR MACLIVER: We would say not because although it was information not given by the applicant, because it was part of the Department’s own records, your Honour, for the reason which I have already advanced it was not critical information. It was not information, we say, that was the reason or part of the reason for refusing to grant the visa.
HIS HONOUR: Well, just pause there. Why is it not part of the reason for refusing the visa, having regard to page 4 of 25 in the reasons for judgment, that is to say, the paragraph at about 6, “Nevertheless, our records show that”?
MR MACLIVER: Where is your Honour reading from?
HIS HONOUR: This is page 4 of the reasons for decision under the heading “Nature of the Commitment of the Relationship”, last paragraph just before “Summary”.
MR MACLIVER: Yes, I see, your Honour, where the delegate says “our records show you departed Australia . . . without your sponsor”.
HIS HONOUR: He says “Nevertheless”. Why is that not then part of the information which is considered for refusing the visa?
MR MACLIVER: Because I think when one considers the delegate’s reasons, his decision record as a whole, it is clear that there was a number of reasons why the delegate was not satisfied that the plaintiff and her sponsor had been in a relationship that had existed for at least a 12‑month period prior to the making of the application, and we would say that when read in context, particularly in light of the previous statement by the delegate, your Honour, at page 191 where he concludes:
However, there is no convincing evidence that 12 months prior to the application lodgement, you saw the relationship as a long‑term one or that you had a commitment to a shared life together.
When one then reads that following passage, to which your Honour has taken me, about the incorrect finding, we would say that that is simply, if you like, an aside. It is not part of the delegate’s reasons for concluding that he was not satisfied that there had been a de facto relationship for the period of at least 12 months prior to the application.
HIS HONOUR: All right, thank you.
MR MACLIVER: For that reason it is not relevant information for the purpose of section 57 and, therefore, there was no breach by the delegate of the requirements of section 57(2) of the Act, your Honour.
HIS HONOUR: Thank you.
MR MACLIVER: If it please, your Honour, those are my submissions.
HIS HONOUR: Thank you very much, Mr Macliver. Mr McIntyre, do you want to say anything in reply?
MR McINTYRE: Just a couple of things, your Honour. In relation to the discussion we were most recently having about the words on page 4 of 25 of the reasons of the delegate’s decision, that paragraph starting “Nevertheless” we say is clearly connected to the previous paragraph. As your Honour has pointed out it is rather infelicitously constructed.
HIS HONOUR: Yes.
MR McINTYRE: There are two possible ways in which it is connected. It is either connected to the beginning of that first paragraph where the delegate says:
While I am satisfied that you and your sponsor were known to each other in June 2010 and claimed to be in a de facto relationship in November 2010 and committed to a shared life together to the exclusion of all others –
it may relate to that or it may relate to him breaking up the second sentence which starts “However, there is no convincing evidence”, but then on the next line where he says:
you saw the relationship as a long‑term one or that you had a commitment to a shared life together –
it may be that he was referring to them having said that to him, although that is not how it properly belongs in that sentence, and then was referring to how they saw it, whereas he saw it differently.
HIS HONOUR: Yes.
MR McINTYRE: I am trying to construct – to make a silk purse out of a sow’s ear here in terms of the way it is constructed, but perhaps that will help your Honour.
HIS HONOUR: Thank you.
MR McINTYRE: In relation to ground 5, my learned friend refers to what Justices McHugh and Gummow said in Lam and seeks to suggest to your Honour that the concept of critical issues is answered by looking to the statute and the regulations and seeing what are the factors to be taken into account. Our contention is that it is something entirely different. It is not a case of telling the party what is in the statute. It is a case of indicating what, in the factual circumstances of the particular case, together with the law, is going to critically influence how the decision‑maker in this particular instance is going to decide the case for or against this party.
That is an entirely different notion and it is not answered by saying that is what the statute says so you know what the critical issues are. It is not answered, we would suggest, in response to what my learned friend said about ground 3, by giving an opportunity to provide any further evidence with a general referral to a range of general factors. That effectively is giving you an opportunity in a vacuum and if you were actually focusing on the critical issues you would say well, these are the factors we have to take into account. The critical issues are this one or these two or that third one. That is really what that passage in Lam is about, your Honour. May it please the Court.
HIS HONOUR: The plaintiff is a citizen of the Republic of India. She was born in Muktsar, India on 24 September 1971 and is now 42 years of age. She first came to Australia in January 2008 on a Student visa (Subclass 573) to study Hospitality and Management at the York Institute in Melbourne. On 16 February 2009 she completed the Hospitality and Management Certificate III and on 25 November 2009 she completed the Hospitality and Management Certificate IV. Until 2011 she also performed relevant work experience as a cook and in management roles at the Red Pepper Indian Restaurant in Melbourne.
Meanwhile, in January 2010, she applied for a Graduate (Temporary Residence) visa which was granted on 12 April 2012 and, in the two years it took to process that application, she applied for, and was granted,
Bridging (B) visas on three occasions in order to return to India for short periods to be reunited with her parents and siblings.
During 2011 and 2012, she studied in security services and was awarded a Certificate III, including a firearm certificate endorsement from Valiant Training. She completed a qualification in Controlled Security Risk Situation using Firearms on 1 June 2012.
On 1 October 2013, the plaintiff applied for a Partner (Temporary) (Class UK) (Subclass 820) and Partner (Residence) (Class BS) (Subclass 801) visa (“the Partner visa”) on the ground of being in a de facto relationship with an Australian citizen sponsor.
On 13 November 2014, the Minister’s delegate determined that the plaintiff did not meet the criteria for the grant of the visa. The delegate was not satisfied that the plaintiff had been in a de facto relationship with the sponsor at the time of the application for the visa or for the 12 months immediately before that time.
On 8 December 2014, the plaintiff applied for review of the delegate’s decision by the Migration Review Tribunal but, because the application was made four days outside the 21‑day time limit prescribed by section 347(1)(b)(iii) of the Migration Act 1958 (Cth) and regulation 4.10(1)(d) of the Migration Regulations 1994 (Cth), the Tribunal determined that it had no jurisdiction to review the delegate’s decision.
On 5 February 2015, the plaintiff filed this application for an order to show cause seeking writs of certiorari and mandamus in respect of the delegate’s decision. The application was made 49 days outside the 35‑day time limit set by section 486A(1) of the Migration Act, but within the six‑month time limit set by rule 25.06.1 of the High Court Rules 2004 (Cth). By order made last week, the time for filing the application was extended under section 486A(2) until 5 February 2015.
In her affidavit in support of the application, the plaintiff deposes that she first met the sponsor, Gursharan Singh, in or about June or July 2010 and that, in or about November 2011, they decided to live together as a de facto couple. She also deposes that their commitment to each other was such that they signed up for IVF treatment in order to start a family together. She acknowledges that it would be open to her to lodge a fresh application for a Partner visa, but she is concerned that, because she would be required to return to India while the application is processed, she would be precluded from continuing with her current IVF treatment, and because Gursharan Singh is an Australian citizen and over 35 years of age, he would be unlikely to be able to obtain work in India, and thus he could not accompany her back there.
There are four grounds of the application and it is convenient to deal with them in turn. Starting with ground 1, regulation 1.09A(2) of the Migration Regulations provides, inter alia, that if the Minister is considering an application for a Partner visa, the Minister must consider all the circumstances of the relationship, including those which are identified in paragraphs (a), (b), (c) and (d) of subregulation (3):
(a)the financial aspects of the relationship, including:
(i)any joint ownership of real estate or other major assets; and
(ii)any joint liabilities; and
(iii)the extent of any pooling of financial resources, especially in relation to major financial commitments; and
(iv)whether one person in the relationship owes any legal obligation in respect of the other; and
(v)the basis of any sharing of day‑to‑day household expenses; and
(b)the nature of the household, including:
(i)any joint responsibility for the care and support of children; and
(ii)the living arrangements of the persons; and
(iii)any sharing of the responsibility for housework; and
(c)the social aspects of the relationship, including:
(i)whether the persons represent themselves to other people as being in a de facto relationship with each other; and
(ii)the opinion of the persons’ friends and acquaintances about the nature of the relationship; and
(iii)any basis on which the persons plan and undertake joint social activities; and
(d)the nature of the persons’ commitment to each other, including:
(i)the duration of the relationship; and
(ii)the length of time during which the persons have lived together; and
(iii)the degree of companionship and emotional support that the persons draw from each other; and
(iv)whether the persons see the relationship as a long‑term one.
In giving reasons for decision, the delegate wrote under the heading “Social Aspects” the following:
In assessing the social aspects of the relationship, I have considered social interactions, the way you represent your relationship to others, and the level of recognition of the relationship by friends and family as a reasonable test of the genuineness of a relationship.
You and your sponsor provided the following evidence regarding social aspects of your relationship:
·Photo
·Form 888 Statutory declarations from Harjinder KAUR and Jaswinder SINGH
. . .
You and your sponsor have also provided statutory declarations from friends. The declarations both confirm that they have met you and have spent time with you and sponsor as a couple. However, the statements are not detailed and do not indicate when the relationship began or when you began living together and therefore I give them little weight.
Our records show that you and your sponsor were travelled together on 27/09/2010 to 18/11/2010 and 19/12/2012 to 13/01/2013. I give them some weight that you have travelled together as a couple.
Overall, you and your sponsor have provided evidence that you present yourselves as a couple to family and friends, however there is no evidence that you and your sponsor presented yourselves as a de facto couple to family or the wider community, that you undertook regular joint social activities, that you had attended any significant events together or that you belonged to any organisations or groups.
The plaintiff contends that by thus requiring evidence that the plaintiff and her sponsor presented themselves as a de facto couple to family or the wider community, undertook regular joint social activities, attended significant events together, and belonged to organisations or groups, the delegate erred as a matter of law by applying a test wider than, more onerous than and including considerations irrelevant to the mandatory relevant considerations of the “social aspects of the relationship” prescribed by regulation 1.09A(3)(c).
I do not accept that contention. Each of the matters referred to by the delegate under the heading of “Social Aspects” was logically relevant to and appropriate to be considered in determining whether the plaintiff and her sponsor represented themselves to other people as being in a de facto relationship with each other; the opinion of the persons’ friends and acquaintances about the nature of that relationship; and any basis on which the plaintiff and her sponsor planned and undertook joint social activities. I conclude that there is no substance in ground 1 and that it should be rejected.
Turning to ground 2, under the heading of “Financial Aspects”, the delegate included the following:
In assessing the financial aspects of your relationship with the sponsor, I considered the following points: the joint ownership of assets, any joint liabilities, the extent to which you have pooled you financial resources, any legal obligations each of you has to the other and the general sharing of daily household expenses. (emphasis added)
You and your sponsor provided the following evidence regarding the financial aspects of your relationship:
·Your bank statements
·Your sponsor’s bank statement
·Joint bank statements from 24/06/2014 to 22/07/2014
The joint bank statement provided from 24/06/2014 to 22/07/2014 have [sic] transactions, therefore I give this statement some weight as evidence of shared finances from 24/06/2014 onwards.
You have provided your bank statements from 20/05/2011 to 22/09/2011 [relating to a domestic property], I give these statements no weight as you and your sponsor did not commit to a shared life together until 11/11/2011 as per form 47SP.
You have provided your bank statements from 20/01/2012 to 20/07/2012 [relating to a second domestic property] and bank statements from 20/07/2012 to 22/01/2013 to [a third domestic property]. I give these statements no weight as evidence of shared finance as it appears the money was transferred to your sponsor with no evidence of being spent on household [sic].
Your sponsor’s bank statements from 02/11/2012 to 02/01/2013, 02/07/2013 to 02/09/2013 [relating to the third domestic property], however the statements do not show how you share your day‑to‑day living expenses [sic].
While I am satisfied that you currently have some joint financial commitments with your sponsor, I am not satisfied that as of 01/10/2012 to 24/06/2014 you and your sponsor had any joint assets, had made any joint purchases, or that you shared any ongoing financial responsibilities.
The plaintiff contends that it is apparent from the emphasised passage of the delegate’s reasons that the delegate erred in law by identifying the wrong issue, namely, “general sharing of household expenses”, rather than directing himself to the criterion specified in regulation 1.09A(3)(a)(v) of “the basis of any sharing of day‑to‑day household expenses”.
There is no merit in that point. It is captious and devoid of substance and I reject it.
Turning to ground 3, under the heading of the “Nature of the Commitment of the Relationship”, the delegate included in reasons for decision the following:
In assessing the nature of their relationship [sic], I have considered the circumstances of you and your sponsor’s meeting, relationship development, length of time you have lived together, the degree of companionship and emotional support that you draw from each other and whether you see the relationship as a long‑term one.
You and your sponsor provided the following evidence regarding Nature of the Commitment of the relationship:
·Personal Statement
·Receipt and letter from the Fertility Specialists
On your personal statement, it states that you declared your de facto status to Centrelink in October 2011, however, you have not provided any evidence to substantiate your claim. In addition, your health letter dated 23/07/2013 shows you paid for your health insurance as “Single cover”, even though you claim that you and your sponsor began your de facto relationship in November 2010 and committed to a shared life together in November 2011.
You have provided receipt dated 03/09/2013 from the Fertility Specialists [which] shows you and your sponsor on your initial consultation and letter dated 17/12/2013 [and] indicates the outcome of your attempted IVF collection cycle [sic]. I give this some weight that you and your sponsor were planning to have a baby.
While I am satisfied that you and your sponsor were known to each other in June 2010 and claimed to be in a de facto relationship in November 2010 and committed to a shared life together to the exclusion of all others on 11/11/2011. However, there is no convincing evidence that 12 months prior to the application lodgment, you saw the relationship as a long‑term one or that you had a commitment to a shared life together.
Nevertheless, our records show that you departed Australia on 01/03/2014 for two months without your sponsor and have listed someone else as your emergency contact person on your Incoming Passenger Card dated 03/05/2014.
Under cover of ground 3, the plaintiff contends that it is apparent from that section of the delegate’s reasons that the delegate’s rejection of the plaintiff’s claim of having declared her de facto status to Centrelink in October 2011 was critical to the delegate’s conclusion that “there is no convincing evidence that 12 months prior to the application lodgment, you saw the relationship as a long‑term one or that you had a commitment to a shared life together.”
It follows in the plaintiff’s submission, that, before rejecting that claim, the delegate was bound as a matter of law to make the obvious inquiry of the plaintiff as to whether she was able to supply any evidence in support of her claim of having so declared her relationship to Centrelink in October 2011. She has sworn in her affidavit in support of this application that if that inquiry had been made she could, and would, have supplied confirmation from Centrelink to that effect.
The defendant rejects that contention on two bases. First, he argues that although section 56 of the Migration Act gives the Minister power to get any information which he or she considers to be relevant to a Partner visa application, the Minister is not required to do so. In particular, the defendant says, the role and thus responsibilities of the Minister are different to and in this respect less demanding than those of the former Refugee Tribunal in relation to its power to seek further information under section 424 of the Migration Act. Accordingly, the defendant contends, the idea suggested in Minister for Immigration and Citizenship v SZIAI[1] that in some circumstances failure to make an obvious inquiry about a critical fact, the existence of which can easily be ascertained, may amount to jurisdictional error, has no application in the circumstances of this case.
[1] (2009) 83 ALJR 1123 at 1129 [25]; 259 ALR 429 at 436; [2009] HCA 39.
Secondly, it is contended that in view of the letter which the delegate sent to the plaintiff on 10 October 2014 inviting her to supply further information in support of her application, the plaintiff was given every opportunity to fill the evidential gap and that the delegate was entitled to proceed on the basis that the plaintiff was either not able or not willing to provide anything further in support of her assertions.
On this ground I do not think the defendant’s submissions to be particularly persuasive. Arguably, an initial decision‑maker is in a relevantly different position to a review tribunal and, possibly, therefore, an original decision‑maker is not under the same obligation as a review tribunal to make obvious inquiries about critical facts. But why that should be so, however, is hardly obvious. Given that a review tribunal is supposed to stand in the shoes of the original decision‑maker, one might have thought that the obligations of each of them should be more or less the same. Leastways, the point is reasonably arguable.
Depending upon the delegate’s obligation, if any, to make obvious inquiries about critical facts, it is also no doubt arguable that the letter of 10 October 2014 was sufficient to discharge that obligation. As at present advised, however, it strikes me that the pro‑forma nature of the letter and the consequently general and unfocused terms in which it was expressed are hardly the sort of thing that the Court had in mind in SZIAI when referring to an inquiry about a critical fact. Without in any way prejudging the issue, one wonders why, given the importance which the delegate apparently attributed to proof of the plaintiff’s report to Centrelink, the delegate did not include a line in the letter plainly requesting provision of a document from Centrelink to show that the relationship was reported to that agency in 2011 as alleged.
In any event, I consider that ground 3 is reasonably arguable.
Turning to ground 4, the thrust of it is that the delegate constructively failed to exercise jurisdiction by making an incorrect finding in relation to a critical fact. The contention is directed to the delegate’s statement earlier set out that “our records show that she departed Australia on 01/03/2014”, et cetera. It is contended that it can be seen from the structure of the delegate’s reasons that that finding was critical to the conclusion that it was not established that the plaintiff and her sponsor saw the relationship as a long‑term one, or that they had a commitment to a shared life together. It is contended further and it is accepted that the finding was plainly wrong. In truth, the records showed, or should have showed, that the plaintiff and her sponsor travelled abroad together on the occasion in question and, as the plaintiff deposes in her affidavit in support of the application, that is why someone other than her sponsor was nominated as her emergency contact.
The defendant argues that it is plain that the erroneous finding did not relate to a critical fact, for the reason that the delegate was required to decide whether the plaintiff and her sponsor were in a de facto relationship in the 12 months preceding the date of the application for visa and the trip abroad in question occurred after that 12‑month period. Thus, it is contended that the erroneous finding of fact simply could not have been critical to the delegate’s conclusion.
Possibly that is so, but the very fact that the delegate included reference to the trip as something which he regarded as supporting his rejection of the plaintiff’s claim logically bespeaks its relevance to the delegate’s conclusion. How relevant it must be to be regarded as critical in the sense which attracts the shibboleth of jurisdictional error is, I think, a matter for detailed argument.
In the result, I conclude that ground 4 is reasonably arguable.
Under cover of ground 5, the plaintiff contends that the delegate failed to accord the plaintiff procedural fairness by not drawing to her attention, and thus allowing her to respond to, the following critical issues and factors upon which the decision was likely to turn:
(a)that the plaintiff had not provided sufficient information to satisfy the delegate that the plaintiff and her sponsor shared day‑to‑day living expenses;
(b)that the plaintiff had not provided sufficient information to satisfy the delegate that she had declared her relationship with her sponsor to Centrelink in October 2011;
(c)that the plaintiff’s health letter dated 23 July 2013 showed she paid for her health insurance as “Single Cover”;
(d)that the delegate believed that the Department of Immigration and Border Protection records showed that the plaintiff had travelled without her sponsor for a period of two months; and
(e)that the delegate did not consider that there was sufficient or any evidence that the plaintiff and her sponsor had presented themselves as a de facto couple to the wider community or undertook regular social activities together, or belonged to any organisations or groups.
The defendant responds that the delegate’s letter of 10 October 2014 referred in general terms to the categories of additional evidence which were required and that the delegate thus complied with the procedural fairness obligations which are set out in Subdivision AB of Division 3 of Part 2 of the Act.
To some extent, at least, ground 5 overlaps grounds 3 and 4 and, to that extent, I think it to be reasonably arguable. It is true that the letter of 10 October 2014 requested additional evidence directed to particular categories of considerations, but there was no specific identification of the issues which the delegate considered to be important. That is not to say that the delegate was necessarily bound to do any more than was done. It may be that the letter was sufficient, but I consider that whether or not that is the case, the ground falls properly to be determined in conjunction with grounds 3 and 4.
Section 57 of the Migration Act relevantly provides:
(1)In this section, relevant information means information (other than non‑disclosable information) that the Minister considers:
(a)would be the reason, or a part of the reason, for refusing to grant a visa; and
(b)is specifically about the applicant or another person and is not just about a class of persons of which the applicant or other person is a member; and
(c)was not given by the applicant for the purpose of the application.
(2)Subject to subsection (3), the Minister must:
(a)give particulars of the relevant information to the applicant in the way that the Minister considers appropriate in the circumstances; and
(b)ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to consideration of the application; and
(c)invite the applicant to comment on it.
In substance, ground 6 asserts a failure by the delegate to comply with section 57(2) of the Act by failing to give the plaintiff particulars of the relevant information and ensure, as far as reasonably practicable, the plaintiff understood why it was relevant in the consideration of her application. The departure records show that the plaintiff departed on 1 March 2014 without her sponsor.
That consideration raises similar issues to ground 4 and, to that extent, also ground 5. For that reason, I think it to be reasonably arguable, although perhaps it does not add a great deal. But, for present purposes, it is sufficient to say I think that ground 6, as at present structured, is reasonably arguable.
For these reasons I shall order that the defendant show cause before the Court on a date to be fixed why the relief claimed in the application should not be made on grounds 3, 4, 5 and 6.
Gentlemen, first, you, Mr McIntyre, would you wish to file any further submissions, other documents or evidence in support of the application?
MR McINTYRE: Perhaps if your Honour gives me that opportunity – it is not that I immediately think that I need to, but ‑ ‑ ‑
HIS HONOUR: How long would you need?
MR McINTYRE: Fourteen days.
HIS HONOUR: Thank you. I shall direct that the plaintiff file and serve any further submissions in support of her application, say of not more than 20 pages length, on or before 4.00 pm on 4 September 2015. Mr Macliver, do you wish to respond to that? Should I make it 14 days after that for you?
MR MACLIVER: Yes, if it please, your Honour, 14 days after that day would be acceptable.
HIS HONOUR: Thank you. I direct that the defendants file and serve any further submissions in response on or before 4.00 pm on 18 September 2015. Gentlemen, are there any further directions sought or which might be thought to be desirable?
MR McINTYRE: No, your Honour.
HIS HONOUR: Thank you.
MR McINTYRE: Mr Macliver agrees with that, your Honour.
HIS HONOUR: Thank you, Mr McIntyre. In that case I will adjourn sine die.
AT 3.37 PM THE MATTER WAS ADJOURNED
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