Kaur v Minister for Immigration and Border Protection

[2015] HCATrans 186

[2015] HCATrans 186

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

Directions

NETTLE J

TRANSCRIPT OF PROCEEDINGS

AT PERTH ON WEDNESDAY, 12 AUGUST 2015, AT 8.29 AM

Copyright in the High Court of Australia

MR G.M.G. McINTYRE, SC:   I appear for the plaintiff, 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:   Gentlemen, have you reached any view as to the sorts of directions that are required, or do you want me to do it?

MR McINTYRE:   I think we are agreed; we have discussed it.  Essentially, several of those in the application are not now required because they have been complied with.  Essentially, neither of us has yet filed a list of authorities, although we have filed the submissions, so a direction to that effect – the matter needs to be listed for hearing, we thought, before a single Judge and the liberty to apply could remain.

HIS HONOUR:   A single Judge because there is a prospect that it might not go further?

MR McINTYRE:   I think so, yes, your Honour.

HIS HONOUR:   A sufficient prospect to make a single Judge hearing worthwhile.

MR McINTYRE:   Yes.  The only other issue is that we filed a document on 10 August, being an amended application for an order to show cause in which we added a paragraph applying for an extension of time required to make the application.  I think my learned friend has something to say about that, but we say that that is a sufficient compliance with section 486A of the Migration Act, which requires under subsection (2)(a) an application for the order being made in writing:

specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order –

In addition to that paragraph in the application, the affidavit filed by the plaintiff supports that application, as my learned friends have acknowledged in their outline of submissions.

HIS HONOUR:   Mr Macliver.

MR MACLIVER:   If it please your Honour.  I have raised with my learned friend the issue of the application required by section 486A of the Migration Act, and there is reference to it under the heading “Extension of time” in the submissions that the defendant has filed.  In response to that, as my learned friend has noted, your Honour, a document has been filed in this Court titled “Amended application for an order of review” and that simply seeks, by way of – under the heading “Relief claimed”, in a new paragraph 3, simply any extension of time required to make this application. 

The defendant’s view, your Honour, is that that is not sufficient to constitute an application for the purposes of section 486A(2).  It simply seeks relief, but does not constitute an application, and it may be that in the orders your Honour makes this morning, there should be a further order that the applicant either file a separate application for extension of time, or further amend this application to, in specific terms, apply for an order from this Court for an extension of time.

HIS HONOUR:   So the point is that because he seeks an order extending time rather than stating in terms “I apply for an order extending time”, it is not an application for the purposes of the section?

MR MACLIVER:   For the purposes of section 486A(2), your Honour, yes.

HIS HONOUR:   But if he puts within an application a prayer for an order extending time, why is that not an application for an extension of time?

MR MACLIVER:   In my respectful submission, it is simply seeking relief and it is not constituting an application, but if your Honour is of a different view then I would not press the matter, your Honour.

HIS HONOUR:   Thank you for bringing it to my attention.  Could you remind me, please, what period of extension is required?  It is pretty short ‑ ‑ ‑

MR MACLIVER:   Yes, for indeed all three courts – the Federal Circuit Court, the Federal Court and this Court – the time period for bringing an application, the originating application, is in all cases 35 days, your Honour.

HIS HONOUR:   On the substance of it, there is no objection, is there, to the grant of extension of time?  It is not said that the extension is unwarranted, or not sufficiently explained, or otherwise appropriate?

MR MACLIVER:   Not in those terms, your Honour.  The only issue we would have with it is whether there is sufficient substance in the grounds of review to justify an extension of time but, of course, as is ‑ ‑ ‑

HIS HONOUR:   We do not know until we have a deep and meaningful look at them, do we?

MR MACLIVER:   No, that is right, your Honour.  Often with these matters, the issue of the extension of time and the substance of the substantive application are all dealt with together.

HIS HONOUR:   Thank you very much, Mr Macliver.  Mr McIntyre, there is nothing further then in the way of submissions or other material that you seek to put in before we have the hearing of the application.

MR McINTYRE:   That is right, your Honour.

HIS HONOUR:   That is also for you, Mr Macliver.

MR MACLIVER:   That is the case, your Honour, yes.

HIS HONOUR:   I will make the following orders and directions:

1.Pursuant to section 486A of the Migration Act, I shall extend the time required to make this application until the time of filing of the amended application on 10 August 2015.

2.Direct that each party file and serve a list of authorities –

How soon, Mr McIntyre.

MR McINTYRE:   Seven days, your Honour.

HIS HONOUR:   By 4.00 pm on 19 August 2015.  Does that suit you, Mr Macliver?

MR MACLIVER:   Yes, your Honour, that is fine.

HIS HONOUR:  

3.Direct that the application be heard in the first instance before a single Judge by video link –

I am sorry, it will have to be to me in Melbourne by video link at 2.15 Eastern Standard Time on 23 September 2015.  Does that cause any difficulties?

MR MACLIVER:   Your Honour, it causes a difficulty for me personally as I will be out of the jurisdiction, but I am sure someone else can deal with the matter for the defendant.

HIS HONOUR:   You are obviously briefed in the matter.  It would be desirable if you could stick with it.  How far outside of that date are you in difficulties?

MR MACLIVER:   The last day I will be here – I am then away for several weeks ‑ will be Friday, 11 September, your Honour.

HIS HONOUR:   Gentlemen, what about Friday, 21 August, for the hearing?  Would that suit?

MR MACLIVER:   Your Honour, that is suitable from the defendant’s point of view.

MR McINTYRE:   Yes, that is fine.

HIS HONOUR:   I shall order the hearing be at 2.15 pm Eastern Standard Time on Friday, 21 August 2015.

MR MACLIVER:   Sorry, your Honour, 2.15 pm?

HIS HONOUR:   Eastern Standard Time.  That will be 12.15 your time, will it not?

MR MACLIVER:   Yes.  There is no problem with that, I do not think.

MR McINTYRE:   No.

HIS HONOUR:   You will have to have an early lunch.  Nothing further required, gentlemen?  Thank you.  Adjourn the Court.

AT 8.39 AM THE MATTER WAS ADJOURNED