Mohebi v Minister for Home Affairs & Anor

[2020] HCATrans 60

[2020] HCATrans 060

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S60 of 2020

B e t w e e n -

ROHOLLAH MOHEBI

Plaintiff

and

MINISTER FOR HOME AFFAIRS

First Defendant

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Defendant

Interlocutory hearing

BELL J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY AND BY VIDEO CONNECTION

ON FRIDAY, 22 MAY 2020, AT 9.30 AM

Copyright in the High Court of Australia

HER HONOUR:   Mr Taylor, I understand you appear for the plaintiff – we seem to have some problem with the audio link.  Mr Taylor, you appear for the plaintiff?

MR D.R. TAYLOR:   Good morning, your Honour, I appear for the plaintiff.  (instructed by Sydney West Legal and Migration)

MR P.R. MACLIVER:   May it please the Court, I appear for the defendants.  (instructed by Australian Government Solicitor)

HER HONOUR:   Yes, Mr Taylor.

MR TAYLOR:   Thank you, your Honour.  There are two affidavits which have been filed – or lodged – one last night by myself – or it is yesterday evening - and another by the applicant himself this morning which I believe has been printed and it has also been sent to the respondent.  I am not sure if Mr Macliver has ‑ ‑ ‑

HER HONOUR:   Yes.  You refer, I think, Mr Taylor, to your affidavit affirmed on 21 May 2020, together with the plaintiff’s affidavit which, in accordance with the practice direction, has not been sworn in light of the difficulties associated with the present COVID‑19 pandemic.  But it is an affidavit made by the plaintiff on 21 May 2020?

MR TAYLOR:   Yes.

HER HONOUR:   You seek to rely on those two affidavits, together with the affidavit of Noeline Harendran, the plaintiff’s migration affidavit, which was sworn on 6 May 2020?

MR TAYLOR:   Yes, your Honour.  There are a few others as well.

HER HONOUR:   In addition, I think there are two further affidavits affirmed by you, Mr Taylor, annexing various documents that were filed in support of the substantive application.  You seek to rely on those as well.  Is that the position?

MR TAYLOR:   Yes.  Yes, your Honour.

HER HONOUR:   I might indicate, Mr Taylor, I have had the opportunity to read all of the material save for the fact that the most recent affidavit affirmed by you, and the plaintiff’s affidavit, were just brought to my attention very shortly before the commencement of the proceedings today.  I have had an opportunity to read through the plaintiff’s affidavit.  I have not fully absorbed the contents of the material annexed to your affidavit and I may need you to assist me with that in due course.

As a preliminary matter, Mr Taylor, can I raise this with you?  In addition to filing the application for constitutional or other writ on 29 April 2020, the plaintiff has filed an application for urgent hearing for interlocutory relief by way of interim order of habeas corpus, to quote the application, and it is the latter application that was listed for hearing today.

In accordance with a direction that I made you filed written submissions relating to the application for interim relief and those submissions, understandably, were directed to the availability of the relief that you claim in the substantive application.  It would assist, perhaps, if you could just indicate if you accept that is the case, Mr Taylor.

MR TAYLOR:   Yes, your Honour.  If I may just briefly offer that the applicant’s circumstance has probably become more clear to me with his most recent affidavit.

HER HONOUR:   I am sorry, Mr Taylor.  It is rather difficult when people are shuffling papers – I cannot hear properly.  Can you just repeat what you last said?

MR TAYLOR:   Thank you, yes.  I would say that that is correct.  The applicant has found it difficult to explain himself and there are some gender‑related issues which he was able to disclose to me last night which sort of like explained the situation a little bit better and provided, if you like, the evidential basis for the – directs our attention towards the substantive need for interlocutory relief.

HER HONOUR:   Mr Taylor, you did not, in your submissions, address the conventional tests that apply to the grant of interlocutory relief which are referred to in the defendants’ submissions and which, relevantly, have as an essential condition that the plaintiff establish what is sometimes described as a prima facie case for the substantive relief claimed in the proceedings. 

I should indicate to you that, consistently with statements made more recently in this Court in a joint judgment by Justices Gummow and Hayne in ABC v O’Neill, I do not approach the matter upon a view that it is incumbent on you necessarily to establish a prima facie case in the sense of establishing the probability that you would secure the final relief that you claim, but it is undoubtedly necessary that you establish what is sometimes referred to as the colour of a right to such relief.

Now, the defendants submit that you do not.  The defendants submit that you do not establish an arguable case for any of the relief claimed in your substantive proceeding.  I raise this with you because I just want to be clear that the basis upon which I am being asked to deal with today’s hearing by the defendants is not only to decline to grant the interim relief that you seek, but because of a submission that the relief claimed in your substantive application is untenable I am asked to dismiss that proceeding as well.  Do you appreciate that, Mr Taylor?

MR TAYLOR:   Yes, of course – yes, I do.  However, I would say that, of course, that that matter has only been brought to our attention with the new documents and I think that that would be a bridge too far if the respondent is seeking to raise its own application now on the 21st then that would, of course, require the opportunity for submission and so forth and all those kind of things.

HER HONOUR:   That is the matter that I really thought should be dealt with at the outset, Mr Taylor.  Perhaps I might draw your attention to this.  Under the Rules, Mr Taylor, provision is made for the Court to dismiss an application for constitutional or other writ relief without, indeed, even listing it for hearing on the ground that it does not disclose an arguable basis for the relief sought.  The matter has been listed for hearing in light of the application for interim relief but, on one view, were the defendants to make good the assertion that there is not an arguable basis for the grant of any of the relief that you claim, there would be no reason why the Court might not dismiss the substantive application as well as the interim application.  Do you submit, Mr Taylor, that you require some further time in which to deal with the matters raised in the defendants’ submissions or in the affidavit on which the defendants rely?

MR TAYLOR:   Well, yes, it would be – I mean there are a lot of issues that we would take with both the submissions of the respondent and matters arising from the evidence supplied by the respondent.  I should also add that it has been rather difficult for us to obtain medical evidence, and we do appreciate the defendant making some of that available to us.  We have been approved to receive the IHMS file for our client but, for one reason or another, it has not yet arrived.  Similarly, for the Australian – so some of this information is new to us as well.

There are two aspects to the claim – to the application for relief which go to the – which, in our submission, ought not really – cannot really be severed - they are inseparable, they are intertwined and those are a duty of care but also a duty of care extending to the duty to impose the least possible restraint as required by the Act and I think that the respondents’ submissions tend to confuse the issue that we are not challenging immigration detention at all.  Most of the respondents’ submission tends to the issue that somehow we are challenging immigration detention.  We are not.

HER HONOUR:   Mr Taylor, as I understand what you describe in your submissions as your fundamental argument, it is that in light of the amendment of the Migration Act to include provision for the making of a residence determination the Act is to be understood as requiring in its administration that the Minister employ the least intrusive form of detention in the case of any person in immigration detention who might be the subject of a residence determination.  Is that the essence of it?

MR TAYLOR:   That might be one way to express it.  According to the policy issued by the Minister in the detention services manual that is the Commonwealth’s position, yes, as indicated in the defendants’ policy.  However, there are other – that is, if you like, the starting point.  On top of that we have the requirement for mandatory referral to the Minister which has not been - for consideration of the exercise of the power which has not occurred in this case for those who have experienced torture or trauma or with significant physical or mental health problems or cases that will take a considerable period to substantively resolve and other cases with exceptional characteristics.  I would submit that the applicant fulfils all of those characteristics.

The defendant has admitted that the defendants are not considering the exercise of the power of – what did we say – not considering the exercise of the community detention power and, in fact, the defendants’ policy is that they do not wish to receive – the defendants’ policy is, one, that they will not receive applications for the exercise of the community detention power from an applicant or their legal representative; two, the defendants’ policy is – the instruction to Commonwealth officers not to make referrals for transitory persons, that is to say persons in the applicant’s cohort; three, in exceptional circumstances that they are to be brought to his attention under mandatory requirement for those four characteristics – persons who may have experienced torture or trauma or with significant physical or mental health problems and cases that will take a considerable period to substantively resolve or other cases with unique or exceptional characteristics.

Now, it is inconceivable that the Minister could absent himself from the field and not consider these cases and yet, if that is what the Minister has purported to do, then the Court, in our submission, has an obligation as an arm of the Commonwealth Government in fulfilment of its duty of care in respect of detainees in the immigration detention network to step into the breach. 

We say that the Court of course – this Court has never doubted the power of the judiciary to make an order that immigration detention continue by way of a direction to reside at a particular residence.  Those were the Al Masri orders.  So we say that all the more, now that this ‑ ‑ ‑

HER HONOUR:   The authority of Al Masri needs to be assessed against the decision of this Court in Al‑Kateb v Godwin.  I understand, Mr Taylor, that in relation to the availability of an order for habeas corpus that does not result in the immediate unconditional liberty of the applicant for that order you rely on the observations of Chief Justice Gleeson in Al‑Kateb as to the concept that the Court might mould an order similar to the attachment of conditions on the grant of bail - an order of that character.  Is that your submission?

MR TAYLOR:   That is our submission subject to ‑ ‑ ‑

HER HONOUR:   Of course his Honour was in the minority in Al‑Kateb.  The hurdle that you face in relation to the relief that you claim by way of habeas corpus, or an injunction having the effect of directing the release of the plaintiff subject to conditions, requires establishing the unlawfulness of the present detention.

Now, as you earlier indicated you do not challenge the lawfulness of the plaintiff’s detention.  Rather, you seek to make good, as I understand the argument at its highest, that the failure to consider the making of a residence determination makes the form of the plaintiff’s detention unlawful.  Is that the nub of it?

MR TAYLOR:   That is the nub of it.  In the context ‑ ‑ ‑

HER HONOUR:   Mr Taylor – I am sorry; can I interrupt just so we establish where we are going today?  You would need to satisfy me that that is at least a tenable argument having some prospect of success before I would contemplate the granting of an interim injunction in the terms that you seek.  Do you accept that?

MR TAYLOR:   Yes.  Yes, your Honour.

HER HONOUR:   If I am not so satisfied, on what basis would the Court grant the relief in the first five paragraphs of the relief claimed in the substantive application?  They all seem to me, Mr Taylor, to be directed to the proposition that the present form of immigration detention is unlawful.

MR TAYLOR:   Yes, your Honour.  If I can go back a step.  The Al Masri orders were never overturned or challenged on appeal by the Minister in the High Court.  So the orders themselves were substantively allowed to stand.  The Al‑Kateb decision dealt with a challenge to immigration detention per se for a person who literally could be removed, except that he had no receiving country to receive him.  The difference here – and Al‑Kateb very strongly hinged on the fact that immigration detention, although it was

designed substantively as a pressure cooker that ultimately would, if a person had their own relief valve, to go home and to attempt to facilitate that in some manner or another.  The applicant in this case has no relief valve.  He has no way out.  He is a refugee.  He is at risk ‑ ‑ ‑

HER HONOUR:   Mr Taylor, I think we are straying from the issue that I was endeavouring to raise with you.  Do you submit that you require further time in which to address the question of the availability of the relief that you claim in your substantive application?

MR TAYLOR:   Yes.  I think that would be ‑ ‑ ‑

HER HONOUR:   Yes.  I might just hear from Mr Macliver.  Mr Macliver, I understand the defendants’ position is that the application for interim relief must fail because it does not establish an arguable case for any of the relief that is claimed in the substantive application and it follows, in the defendants’ submission, that I should dismiss both the interim and the substantive application.  That is the position.  Is that so?

MR MACLIVER:   That is the defendants’ position, your Honour, yes.

HER HONOUR:   Now, in the way this matter has unfolded, Mr Macliver, the defendants’ submissions and supporting evidence were filed yesterday.  Mr Taylor submits that he has not had the opportunity to consider that material and that he needs some further time in which to address arguments relating to the availability of the relief claimed in the substantive application.  If I were of the view that he has failed to establish an essential condition for the grant of interim relief, would you wish to be heard as to the proposition that the matter should be adjourned and fixed for hearing to give Mr Taylor that opportunity?

MR MACLIVER:   Your Honour, I do not think I could oppose Mr Taylor having more time.  It is the case that the defendants’ affidavit and submissions were only filed, I think, yesterday afternoon.  I am not sure of the exact time.  As your Honour has observed the present submissions of the applicant really do not address the issue of the availability of the relief sought in the substantive application.

HER HONOUR:   Yes, thank you, Mr Macliver.  Mr Taylor, in relation to the relief that you seek in the interim application, can you just identify the material that you seek to rely on?

MR TAYLOR:   Yes.  So I rely on the affidavit of Daniel Taylor of 20 April which was filed on 29 April and, in particular – so, within that, of course, is the applicant’s affidavit and also the medical record from 28 February 2019 from Pacific International Hospital indicating that the applicant suffers from severe psychotic depression.  We would rely, in the application for interlocutory relief, on the affidavit of the applicant of 14 May and 21 May ‑ ‑ ‑

HER HONOUR:   I am sorry – 14 May, where do I find that?

MR TAYLOR:   It was filed.

HER HONOUR:   One moment, I thought it – I have an affidavit that purports to have been sworn on 12 April 2020 and which was received by the Registry in accordance with Practice Direction No 3 of 2020 in light of the COVID‑19 pandemic.  Is that the other affidavit of the plaintiff that you refer to?

MR TAYLOR:   There are actually three – my instructor is just pointing to me.  There is one of the 12th, that is correct.  There is also one of 14 May.

HER HONOUR:   So 14 May, where do I find that?

MR TAYLOR:   My apologies, I am just – my instructor is reminding me there is an affidavit of 23 April of the applicant.  Yes, the one of 14 May is filed on 15 May.

HER HONOUR:   I do not believe that I have that, Mr Taylor.  I will just have some inquiry made.  I do not believe that I have that.  I can indicate to you that in addition to Ms Harendran’s affidavit made on 6 May 2020 ‑ ‑ ‑

MR TAYLOR:   Yes, which we do rely on.

HER HONOUR:   ‑ ‑ ‑ I have your affidavit affirmed on 24 April and your affidavit affirmed on 20 April.  To the latter affidavit are annexed a copy of a draft affidavit taken by you from the plaintiff and an unsigned copy of that same document, both being the affidavit made on 12 April 2020 but which was not sworn or affirmed before a qualified witness in light of the COVID‑19 emergency.  That is the material, apart from the two affidavits filed yesterday.

MR TAYLOR:   There is the 10th – rather, page 10 of that affidavit of the 20th is, again, a copy of the medical record. 

HER HONOUR:   Yes, I did not mention all the annexures to each of your affidavits, Mr Taylor.  I am simply seeking to ascertain what I have before me on the interim application.

MR TAYLOR:   Yes.

HER HONOUR:   Perhaps while we just await the results of those inquiries of the Registry concerning some further affidavit filed in mid‑May, can I raise this with you, Mr Taylor?  The affidavits that I have before me by the plaintiff concern the conditions of his custody and his mental state and level of distress in his present circumstances.  They do not address the first hurdle that you must face in order to secure the interim relief that you seek, that relief being the same relief that you seek in final orders in paragraphs 1 to 5 of your substantive application.

Unless I am persuaded that there is some colour, to use an expression sometimes used in this context, to that relief that you claim, considerations of balance of convenience and the like simply do not arise.  You confront in terms of your fundamental argument respecting the requirement that the Minister exercise the powers conferred under Subdivision B of Division 7 of Part 2 of the Migration Act, which relate to residence determinations with a view to securing the least restrictive form of liberty for any person to whom the subdivision applies, this difficulty that section 197AB provides that the Minister does not have a duty to consider whether to exercise the power to make, vary or revoke a residence determination whether he or she is requested to do so by any person or in any other circumstances.

I understand you seek to challenge the policy evinced in the ministerial intervention guideline relating to section 197AB but in that respect you face the difficulty of this Court’s judgment in Plaintiff S10/2011 v Minister for Immigration and Citizenship (2012) 246 CLR 636 at 665 in paragraph 91 of the joint reasons of Justices Gummow, Hayne, Crennan and myself in which ministerial intervention guidelines relating to the non‑compellable discretion conferred on the Minister under section 46A of the Migration Act were held to be within the competence of the Minister, they being guidelines like the present guidelines that provide criteria to distinguish between requests that will be referred to the Minister and those that will not, they being, in essence, directions that the Minister has determined in advance the circumstances in which he will or will not consider an application for the exercise of his non‑compulsory powers.

Now, on the face of it, those matters would seem to raise a real difficulty to success on your argument as it is put in the submissions in support of the interim relief.  Since the interim relief corresponds to the relief that you claim in paragraphs 1 to 5 of your substantive application, and since the alternative relief in paragraph 6 is for mandamus to compel the Minister to exercise his non‑compellable power, an application that faces the difficulty that this Court has held that mandamus would not go in such circumstances, I am raising with you whether you press the claim for the interim relief that you seek rather than me standing the matter over on an appropriately shortened timetable to permit consideration of the substantive application.

MR TAYLOR:   Your Honour, I think that the second course is preferable.  We would not press the interim application at present considering that the substantive matters are the most important to deal with between the parties.

HER HONOUR:   Mr Taylor, I see the sense of that and it may be that you will take on board the matters that I have raised with you and address those in further submissions.  May I just raise one other matter, Mr Taylor?  In the application that I have described as the substantive application it is asserted that the plaintiff asked to be removed back to Papua New Guinea but was told by ABF and his case manager that he could not be returned to Papua New Guinea.  Am I right in my understanding, based on the material contained in Ms Hillary’s affidavit on which the defendants rely, that no request in writing addressed to the Minister by the plaintiff for his removal to Papua New Guinea has been made?

MR TAYLOR:   I think that is correct, your Honour.  I might, if I may, just clarify.  It does appear to me, as a migration agent with experience in the refugee space and as a solicitor who has dealt with refugee matters as my substantive field, that the applicant has raised a non‑refoulement obligation in respect of New Guinea, notwithstanding that out of his fear for his life – he is scared for his life, he is scared for his existence and so he has looked for a way out to go back to New Guinea or anything like that, but in practical terms there is a non‑refoulement obligation in respect of New Guinea which the applicant has squarely raised in his affidavit of 21 May 2020. 

I know that the Minister in his explanatory memorandum indicated to the – which is annexed to the affidavit of myself dated yesterday – the Minister in one of the explanatory memoranda for the correction – rather, amendment of the – the cohort in relation to transitory persons, that is the second one – the Minister indicated that persons would not be subject to refoulement if there were non‑refoulement obligations.  There is a strict indication by the Minister that no refoulement would occur where non‑refoulement obligations exist. 

So we say that the applicant has squarely raised prima facie non‑refoulement obligations in respect of New Guinea that would be strongly arguable.  We say that in the circumstances the question of removal to New Guinea is not possible or practical in the circumstances.

HER HONOUR:   Mr Taylor, I raise the matter, you would understand, because it has some significance having regard to the obligation imposed on an officer of the Department under section 198(1) given that the preclusion on the operation of that section under section 198(11) does not apply in the case of a person who was present in Australia as a transitory person for a temporary purpose while that temporary purpose persists, having regard to the analysis of the Court in Plaintiff M96A/2016 v The Commonwealth (2017) 261 CLR 582 at 591, 592 in the joint reasons of the Chief Justice, Justices Keane, Nettle, Gordon, Edelman and myself in paragraph 16.

To the extent that the relief that is claimed is in the nature of habeas corpus the focus is, of course, on the unlawfulness of the detention.  I just raise that matter for the significance that it may have in the determination of the relief that you claim when the matter comes back for hearing.

MR TAYLOR:   It is of note, your Honour, that in that matter the applicant was actually – when the application was lodged the applicant was in an actual immigration detention facility and then subsequently the applicant was released into community detention.

HER HONOUR:   Yes, I am aware of that.

MR TAYLOR:   Yes.

HER HONOUR:   Again, Mr Taylor, I do think you need to focus on the consideration of the non‑compellability of the power and the statements this Court has made in relation to that.  On the face of it, it is difficult to resist the defendants’ contention that the alternative relief claimed in paragraph 6 is untenable. 

MR TAYLOR:   Yes.  Your Honour, may I just bring to your attention also the balance of – the affidavit of myself of 21 May.  There is a reference to the – in the Minister’s own hand indicating that a held detention would be only for those who pose a risk to the Australian community.  There is an excerpt from that at page 1 of the affidavit.

HER HONOUR:   Mr Taylor, an aspect I understood of your intended challenge is that the Minister has indicated, as I understand it, that he does not wish to have referred to him applications by persons brought to Australia as transitory persons for a temporary purpose.  Is that so?

MR TAYLOR:   Your Honour, there is conflicting policy guidance in the policy.  That appears to be the general proposition, subject to the requirement by the Minister that those exceptional - what may be termed as exceptional circumstances, for example, severe – psychiatric illnesses or other exceptional circumstances – those are mandatory referrals and one of the problems of the defendant is that the matter has not been referred to the Minister.  So this is extremely problematic and susceptible to attention by the Court as well.

HER HONOUR:   Mr Taylor, it may be you need to give consideration to the way the relief is framed.

MR TAYLOR:   Yes.

HER HONOUR:   The Court does not have a roving jurisdiction to identify matters which are considered to be in need of redress.  It is a matter of the Court addressing the particular forms of relief that are claimed.

MR TAYLOR:   Yes.

HER HONOUR:   The assertion thus far is to make good the proposition that habeas corpus is available not to secure a person’s liberty in circumstances where it is accepted that the person is lawfully detained, but to secure a less stringent form of detention that is available but the subject of a non‑compellable power reposed in the Minister personally.

In any event, can we turn to the progress of the matter.  I note you do not press the application for interim relief and the question is to frame a timetable to bring back the substantive application for hearing.  I understand that you would wish the matter to be dealt with with expedition, Mr Taylor.  How long do you require in which to place any further material before the Court, including further submissions, and it may be, Mr Taylor, you would wish to consider reframing aspects of the relief claimed.

MR TAYLOR:   May I just briefly confer with my instructor?

HER HONOUR:   Yes, Mr Taylor.

MR TAYLOR:   Your Honour, it may be appropriate at this stage for me to seek to engage senior counsel in relation to questions of duty of care and so forth, which are substantively the answer to some of the questions which are posed by the legislations.

HER HONOUR:   Yes.

MR TAYLOR:   That also will require due consideration of the medical evidence and the circumstances of the applicant.  I understand that – of course, the applicant being in detention it is important to bring it on as quickly as possible but at the same time it is even more important to get it substantively correct.  So I would think that three weeks would be the minimum time that I could try to muster all these matters ‑ ‑ ‑

HER HONOUR:   Very well.  Let me just – that would bring us, I think, to 12 June.  Mr Macliver, can I return to you?  As you can see, Mr Macliver, the interim application is not being pressed.  Do you have anything to say

about the proposal that the plaintiff be given three weeks from today in which to file any further material in support of his application, including submissions?

MR MACLIVER:   No, your Honour.  I do not object to three weeks.  Indeed, if Mr Taylor wished slightly longer we would not object either.

HER HONOUR:   Well, Mr Taylor?  Do you wish a little longer?

MR TAYLOR:   Yes, four weeks, your Honour, would be ‑ ‑ ‑

HER HONOUR:   All right.  That would take us to 19 June.

MR TAYLOR:   May I just check my ‑ ‑ ‑

HER HONOUR:   Mr Macliver, what would you propose in terms of time for response by the defendants?

MR MACLIVER:   Your Honours, perhaps if we could have three weeks after that.  Again, we might wish to engage senior counsel as well for the final hearing.

HER HONOUR:   That would take us, I think, to 3 July.  You both might wish to check that I have this right.  Then perhaps a further week for a reply, Mr Taylor, would take us to 10 July.

MR TAYLOR:   Yes.

HER HONOUR:   Would it be convenient to both of you gentlemen if I then listed the matter for hearing on Friday, 17 July?

MR MACLIVER:   That would be convenient for the defendants, your Honour.

HER HONOUR:   Thank you, Mr Macliver.  Mr Taylor, is that convenient to you?

MR TAYLOR:   I am just checking my – I appear to have 17 July free.

HER HONOUR:   Yes, very well.

MR TAYLOR:   Yes, that is convenient. 

HER HONOUR:   If there is nothing further I will note that the application for interim relief is not pressed.  I will stand over the substantive application for hearing before me to 10.00 am on Friday, 17 July.  I direct the plaintiff to file and serve any further material, including submissions, on or before close of business on 19 June; the defendants to file and serve any further material, including submissions, by close of business on Friday, 3 July; and the plaintiff to file and serve any response by close of business on Friday, 10 July.  If there is nothing further, gentlemen ‑ ‑ ‑

MR MACLIVER:   Just one other matter, your Honour, if it please.

HER HONOUR:   Yes.

MR MACLIVER:   In relation to costs, the applicant pressed the injunction.  I would seek the usual order for costs in relation to the injunction proceedings.

HER HONOUR:   Yes, what do you say to that, Mr Taylor?

MR TAYLOR:   Your Honour, I would request that ‑ ‑ ‑

HER HONOUR:   I am sorry, Mr Taylor.  I just had difficulty hearing.

MR TAYLOR:   I would request that costs be costs in the cause.

HER HONOUR:   Yes.

MR TAYLOR:   The other matter that I would raise is that if it be noted that the – the applicant to file also by the 19th – to file and - we would request that it may be noted to file and serve any proposed amended application.

HER HONOUR:   Yes, by 19 June?

MR TAYLOR:   Yes.

HER HONOUR:   Yes.  Any objection to that, Mr Macliver?

MR MACLIVER:   No, your Honour, no objection to that.

HER HONOUR:   Yes.  I will amend that first direction.  The plaintiff is to file and serve any amended application for constitutional and other writ relief, together with any material in support of the application, including any submissions, by close of business on 19 June.

Mr Taylor, it seems to me difficult to resist the order for costs that is sought in light of the way the matter has unfolded.  Is there anything further you wish to say?  I am sorry, Mr Taylor, I am having difficulty hearing you.  I think sometimes your microphone may not be on.

MR TAYLOR:   Yes.  No, we cannot say anything in relation to costs except to ask the – except for the acknowledgment by the Minister of the seriousness of the plaintiff’s circumstances and the late provision of evidence by the Minister in relation to his medical circumstances as well as late provision of submissions.  So we did not really have opportunity to deal with all those matters in the first – until last night – or to even access that information.  Those, we would submit, would be relevant to the costs and that is why we would request ‑ ‑ ‑

HER HONOUR:   Mr Taylor, the evidence on which the Ministers rely, being the affidavit of Ms Chloe Hillary, to which are annexed various medical reports, has no bearing on the issue of the plaintiff’s capacity to establish an arguable basis for the final relief that he seeks.  In the circumstances, it seems to me the appropriate course is to note that the interim application is not pressed.  It is dismissed with costs.

MR TAYLOR:   Thank you.

HER HONOUR:   Adjourn the Court to 9.30 am on 29 May in Brisbane.

AT 10.33 AM THE MATTER WAS CONCLUDED