MZXLD v Minister for Immigration and Citizenship

[2012] HCATrans 1

[2012] HCATrans 001

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M3 of 2012

B e t w e e n -

MZXLD

Plaintiff

and

MINISTER FOR IMMIGRATION AND CITIZENSHIP

Defendant

Application for injunction

FRENCH CJ

TRANSCRIPT OF PROCEEDINGS

FROM PERTH BY VIDEO LINK TO MELBOURNE

ON WEDNESDAY, 11 JANUARY 2012, AT 11.34 AM

Copyright in the High Court of Australia

MR K.F. TRINGAS:   If it pleases, your Honour, I appear on behalf of the plaintiff with MR D. CHEUNG.  (instructed by Konstantin Tringas)

MR J.D. BROWN:   Good afternoon, your Honour, I am appearing on behalf of the defendant.  (instructed by Australian Government Solicitor)

HIS HONOUR:   Yes, Mr Tringas.

MR TRINGAS:   Mr Cheung will also be appearing at a later stage on behalf of the plaintiff because he has more knowledge of this case than I do because I have only been recently appointed, if that is okay.

HIS HONOUR:   Yes.  Who is putting the submissions now?

MR TRINGAS:   I am now.

HIS HONOUR:   Yes, all right.

MR TRINGAS:   I would like your Honour to peruse the affidavit of ‑ ‑ ‑

HIS HONOUR:   Yes, I have seen the affidavit.  Now, as I understand it, you are seeking some form of judicial review by way of ultimately, presumably by way of constitutional writ and in the meantime you are seeking an injunction.

MR TRINGAS:   Yes.

HIS HONOUR: This relates to a decision of the Minister or at least the refusal of the Minister to consider making a decision under section 417 of the Migration Act more favourable to you than the decision made by the Tribunal in June 2006.  Is that correct?

MR TRINGAS:   That is right, yes.

HIS HONOUR:   Is it right also that the basis upon which you sought the Minister’s intervention relates to apprehended danger to the plaintiff by reason of the disclosure on the web in an RRT research report of the name of an associate of the plaintiff in Sri Lanka from whom the plaintiff fears harm by reason of that disclosure if the plaintiff is returned to Sri Lanka?

MR TRINGAS:   Yes, that is right. 

HIS HONOUR:   Yes.

MR TRINGAS:   My client also says that there has been a lack of procedural fairness in the review of his request to the Minister.  There was a letter that was sent on the 12th by the Assistant Secretary to the Department.  I think it is ‑ ‑ ‑

HIS HONOUR:   There was a letter sent to the Minister on 12 December, I think, was there not and then there is a letter dated 14 December which you got on the 20th – or your client says he got on the 20th.

MR TRINGAS:   That is right, yes.

HIS HONOUR:   And he had 10 days from the date of the letter of the 14th to provide additional documentation.

MR TRINGAS:   Yes, and there was very little time to do that.

HIS HONOUR:   What then happened is you sent a form of statutory declaration which you had not been able to get ‑ ‑ ‑

MR TRINGAS:   My client sent it.

HIS HONOUR:   Yes, the client sent it.

MR TRINGAS:   Yes.

HIS HONOUR:   That was sent on the 23rd, is that right?

MR TRINGAS:   Unwitnessed, yes.  Initially it was faxed on the 23rd and faxed again late on 3 January, this time witnessed.

HIS HONOUR:   Yes.  Well, the first time your client said he had difficulty getting a Justice of the Peace at the detention centre.

MR TRINGAS:   That is right, yes.

HIS HONOUR:   Yes.

MR TRINGAS:   He received a response on the next day which is WKA-5.

HIS HONOUR:   That is dated 4 January, I think, is it not?

MR TRINGAS:   That is right, yes, but it does not actually refer to the statutory declaration at all.  It talks about a letter having been received in the last paragraph.  So it is unclear whether my client’s statutory declaration was actually considered. 

HIS HONOUR: Now, your client had made a number of requests to the Minister in relation to the exercise of the power under section 417, I understand.

MR TRINGAS:   Yes.

HIS HONOUR:   Requests going back to November 2009 and March and October 2010.  Is that not right?

MR TRINGAS:   I was subsequently informed of that, yes. 

HIS HONOUR:   As I understand it, the complaint which underpinned the application in this Court, which was heard by Justice Crennan in 2009, itself depended upon the publication by the Tribunal of the research report provided to it by the Department of Foreign Affairs and Trade, is that right, and the apprehended fear of consequences arising from that publication?

MR TRINGAS:   Yes, your Honour.

HIS HONOUR:   I think Mr Cheung – were you present at that hearing?

MR CHEUNG:   No, your Honour.

HIS HONOUR:   Mr Cheung was?

MR TRINGAS:   No, he was not.

MR CHEUNG:   No, I was not present, your Honour.

HIS HONOUR:   Mr Tringas, you were present?

MR TRINGAS:   No, I was not.  I have only been – two days ago I got this matter.

HIS HONOUR:   Just one moment.  Just sit down, Mr Cheung, please.

MR CHEUNG:   Thank you, your Honour.

HIS HONOUR:   Anyway, he was legally represented before Justice Crennan?

MR TRINGAS:   He was, your Honour.

HIS HONOUR:   The point is that the very point in terms of apprehended fear of harm from this individual if returned to his country of origin was the point raised before Justice Crennan in 2009, although in that case it was

relied upon as part of a claim that the Tribunal had committed jurisdictional error by making that material public and that application was dismissed by her Honour and extension of time was refused. The reason I ask you is given that the concern about the publication of the associate’s name was agitated as far back as 2009, are you aware whether or not it also underpinned the subsequent requests to the Minister under section 417?

MR TRINGAS:   The material he has provided me with does canvass the report on the internet as being his major concern about being deported back to Sri Lanka. 

HIS HONOUR:   I am just wondering whether, in fact, what we are seeing here is a repeat of applications made to the Minister in 2009 and 2010.

MR TRINGAS:   Well, my colleague wants to address your Honour on that question if that is ‑ ‑ ‑

HIS HONOUR:   Yes, very well.  Yes, Mr Cheung.

MR CHEUNG:   Thank you, your Honour.  I think basically what we are seeking from this honourable Court today is perhaps maybe the possibility of having the Court make a declaration indicating once and for all closure in this matter whether in actual fact the publication by the RRT of that questionnaire as a research paper is at all valid.  We submit respectfully that it does not appear to be in any form or manner a research paper as the Court decided all through and if that is not the case then I think jurisdictional error on the part of the RRT would have prevailed, your Honour.

Based on that, I think the action of the RRT would have prejudiced the position of our client.  That is the submission that we are making today and if we are able respectfully to avail ourselves to the indulgence of the Court to have a stay of deportation today then we would be filing papers to that effect to the High Court, this honourable Court for adjudication, your Honour.

HIS HONOUR:   You have already made that application and lost, in a sense, before Justice Crennan back in 2009.

MR CHEUNG:   Yes.  I think the manner it was presented to the honourable Court then is not exactly what we think should have been.  The new team has looked at all the papers concerned and we have come to the conclusion that it would be fair on the client to have this thing reviewed again by this honourable Court on a different basis, your Honour. 

HIS HONOUR:   That would be by way of an out‑of‑time application, presumably, to overturn the decision of the RRT in the exercise of this Court’s original jurisdiction.  Now, an enlargement of time has already been refused back in 2009.  On the face of it, there is no prospect that this Court would entertain a fresh application based on essentially the same material, but presumably some different arguments, to intervene in relation to the decision of the Tribunal.

My understanding is that what you have brought before me today is an order to show cause in relation to the Minister’s conduct under section 417 of the Migration Act which raises a different issue.  But the concern is that you have already had ample time to raise that issue with the Minister and have it ventilated.

MR CHEUNG:   Yes.  Part of the submission that we are going to make is that time and time again the Minister, in actual fact, had not had the opportunity to really look at the proper material filed.  We submit, respectfully, that the ministerial intervention team has time and time again prevented the material from actually being perused by the Minister.  So what happened actually on 12 December was that we wrote directly – we contacted directly to Fairfield in Sydney - that is the Minister’s electoral office – that if you can have a look at the response letter from the Minister it came directly from the Secretary of the Minister, not the intervention team.

What subsequently happened was we say that procedural fairness has not been granted in the sense that there would have been some kind of bias there, I would think, because the letter in response to the 10‑day request for further information was sent without certification on 24 December and a certified version of that was sent on the 3rd, late afternoon.  Apparently from the instructions of the client it had vouched that the…..officer brought the letter of – the decision letter to not entertain the intervention – signed but undated.  She dated that letter in front of the client himself.  So in actual fact we would say that the actual extra information that was requested by the electoral office of the honourable – the Assistant Secretary to the Minister, the documents did not really get to her hands.

HIS HONOUR:   What do you say is the legal consequence of that?

MR CHEUNG:   The legal consequence is that you see in actual fact all along the client has not been able to put forth his argument that his life would be in danger because of that. We are seeking under section 417 the intervention of the Minister. The Minister has been granted discretionary powers to be able to substitute a decision or to make a decision and we say that procedural fairness has not been granted, natural justice has not been granted to my client on the basis that in actual fact the Minister has not had the ability or the possibility of using 417 as a vehicle to assist my client. In that sense he has been denied natural justice and procedural fairness, your Honour.

If this honourable Court were to be so kind as to allow an injunction today which we submit respectfully would be of no prejudice to our honourable friend, the respondent, and also because the client would be in detention anyway - he is not going anywhere, so there would be no risk involved at least by way of ‑ ‑ ‑

HIS HONOUR: Your client has made multiple requests to the Minister for intervention under section 417 and a number of those requests have been made after your client had raised the matter, which he now raises as a matter of concern, before Justice Crennan, namely the publication of this material and the consequent concern for his safety upon return to his country of nationality.

MR CHEUNG:   Yes, your Honour, with respect.  We need to go through the decision of Justice Crennan.  Like I pointed out just now, your Honour, with respect, the basis upon which the arguments that were canvassed I think were on the wrong basis we respectfully submit, your Honour.  It was based on the fact that it was deemed a research paper.  It was deemed ‑ ‑ ‑

HIS HONOUR:   Yes, just a minute.  The only reason I referred to Justice Crennan’s decision was for the proposition that your client was, as it were, raising the concern about disclosure of the RRT material publicly in a way that identified the associate from whom he now fears harm if returned to his country of origin. 

Now, without getting into the merits of Justice Crennan’s decision, it is that matter which was, as it were, known to your client back in 2009, there have been a number of section 417 requests made to the Minister before the request that was made at the end of 2011. It is difficult to imagine that that matter was not, or could not, have been raised in those requests made to the Minister in 2009 and 2010 given that they were already known at the time of the application to Justice Crennan.

MR CHEUNG:   Yes, your Honour.  Well, we respectfully submit that time and time again apparently it is the ministerial intervention team that has responded to the written application for ministerial intervention.  We are respectfully submitting, your Honour, that my client is but granted some kind of possibility to actually have his case personally reviewed by the Minister, especially when it is a matter of life or death matter and it is vital.  That is why the final application was made directly to Fairfield, your Honour, directly to the electoral office of the Minister himself.

HIS HONOUR: As you know, section 417(7), I think, provides that:

The Minister does not have a duty to consider whether to exercise the power under subsection (1) ‑ ‑ ‑

MR CHEUNG:   Exactly so.  We are aware of that, your Honour.  We are not saying that he has a duty to but we are saying that his discretion is granted on the basis that at least he exercise it in due process, that his exercise of the discretion granted upon him be exercised in good faith.  But if the Minister did not or has not got the ability to receive this application personally himself we are respectfully submitting that that process of discretion has not been exercised properly, your Honour, and by way of that, we are submitting respectfully that my client has not been granted procedural fairness and natural justice.

He did in one of his affidavits there point out that the matter is a matter of great concern, is a matter of life or death and by that the Minister himself should consider that and should exercise his discretion accordingly and properly and wisely.  But from what we see it has always been the intervention team that has blocked the ‑ ‑ ‑

HIS HONOUR:   That is somebody authorised by the Minister to process such applications and determine which to refer to him, is it not?

MR CHEUNG:   We agree, your Honour.

HIS HONOUR:   Why should that not fall within the Minister’s authority to, as it were – administrative process?

MR CHEUNG:   My colleague will answer that, your Honour.

MR TRINGAS:   Your Honour, as a matter of fairness I think it should be pointed out that the Minister did consider whether or not to exercise his discretion on 1 December ‑ ‑ ‑

HIS HONOUR:   That was in respect of the earlier request.

MR TRINGAS:   I beg your pardon.

HIS HONOUR:   That was in respect of the earlier – there were two requests sent, one on top of another, were there not?

MR TRINGAS:   That is right, but the material that was presented in the earlier newer request covered the report and my client’s fear of persecution.

HIS HONOUR:   Thank you.

MR TRINGAS:   What exactly the Minister’s obligations are in relation to section 417 is, I think, currently before the High Court as far as I am aware so we are not – at this stage I am not entirely sure what the High Court – there are three matters before the High Court to be heard this year, as far as I am aware, and one step is those decisions that have been made it will probably be clear what exactly the Minister’s obligations are in relation to that on section 417.

HIS HONOUR:   Your client did not come to Australia as an offshore person, your client came on a business visa, did he not, originally?

MR TRINGAS:   He did, yes, but still those decisions could have a bearing on this case in interpreting the Minister’s exact obligations in relation to section 417.

HIS HONOUR:   Yes, is there anything further?

MR TRINGAS:   Do you want to say anything more?

MR CHEUNG:   Yes, your Honour.  It is just that we hope this honourable Court will exercise this equitable jurisdiction to grant this injunction today, your Honour, so that at least the client can have the ability to prevail himself for procedural fairness to be played out.  It is with no prejudice to the respondent and to the Minister and he is in detention anyway so we just beg the indulgence of this Court to grant this reprieve so that we can at least have an opportunity to look at papers and file relevant applications if necessary and seek more information for this honourable Court.  Thank you, your Honour.

HIS HONOUR:   Thank you, Mr Cheung.  Yes, Mr Brown.  Mr Brown, I have read Justice Murphy’s decision and I am reasonably familiar with the history of the matter to the extent that it is disclosed by that decision, the earlier decision of Justice Crennan and the decisions before that of Federal Magistrate McInnis and Justice Gordon.

MR BROWN:   Thank you, your Honour, and thank you for making yourself available at short notice for this matter.  Just to provide one piece of factual context, the applicant was due to be boarding a plane now, at 3 o’clock.  That removal was aborted in the light of the application having been made to this Court but it would be the Minister’s intention to proceed with the removal as soon as this issue is finally resolved.

HIS HONOUR:   Thank you.

MR BROWN:   Your Honour, given the indication that you already have the background in this matter, I think I might add just a couple of things. First of all, as my learned friend was good enough to concede, the application, the penultimate 417 application which was made on 1 November 2011 was in fact referred to the Minister for his personal review and was made the subject of an extensive brief. That brief included the applicant’s basis for seeking a request under section 417 and that basis was basically his concern that in the light of the Refugee Review Tribunal research paper that he was potentially at danger if he returned to Sri Lanka because the person who was named in that report was annoyed by it and was intent upon doing him harm. That, your Honour, as you have already noted, was precisely the argument that was put before Justice Crennan in October 2009. I was the instructing solicitor in that matter and therefore ‑ ‑ ‑

HIS HONOUR:   The point in that case was whether or not by that publication the Tribunal had somehow committed a jurisdictional error, as I understand it.

MR BROWN:   But also, your Honour, I think to be fair, that it represented a basis for a sur place claim.

HIS HONOUR:   Yes.

MR BROWN:   But the applicant was potentially at greater risk or at risk of persecution should he return because of something that had happened in Australia, viz the publication on the internet of the RRT research paper.  The Minister, your Honour, gave his personal consideration to that briefing and decided on 1 December 2011 that he would not consider intervening to substitute for the decision of the RRT of 6 June 2006 a decision more preferable to the applicant. 

He also said to his ministerial staff, his department, that he did not wish to have any other material, any other requests from the applicant put before him unless there was new material that went beyond what he had already seen and it was in order to establish whether there was any new material over and beyond what the Minister had already seen that the Department wrote to the applicant in the middle of December asking him to provide any further material that he wished to put on in support of his final section 417 request.

That was subsequently received in the form of a statutory declaration on 3 January and that statutory declaration, which was attached to a letter from the applicant, was given consideration by the delegate and was the basis then for a decision on 4 January to not refer the further material to the Minister because there was nothing new there and to regard the final request as finalised and it was once that had happened ‑ ‑ ‑

HIS HONOUR: You talk about the letter being given consideration by a delegate. Presumably that is not a delegate for the purposes of section 417 because that is a power that has to be exercised, if it is going to be exercised at all, personally by the Minister.

MR BROWN:   Yes, your Honour.  No, perhaps I used the term “delegate” loosely there – considered by departmental staff.

HIS HONOUR:   Yes.

MR BROWN:   It was on the basis of that further consideration, given that the Minister had himself made a decision on the penultimate request only on 1 December 2011 that a decision was made to finalise the final request which had been made in the middle of December.

HIS HONOUR:   Now, all of that material that you are now putting to me essentially emerges from the material attached to the affidavit, I think, is it not, in the sense that one can infer most of that from the letters?

MR BROWN:   Yes, I think it does, your Honour, and it was certainly material that was put before his Honour Justice Murphy yesterday afternoon over a period of two hours on the basis of which he handed down his judgment this morning.

HIS HONOUR:   As I understand it, that decision – at the time his Honour made that decision the plaintiff had decided not to proceed or had abandoned that application because of concern about jurisdiction.

MR BROWN:   There was a request post hearing yesterday, your Honour, at around 4.30 from chambers to the plaintiff’s solicitor on the record that he should come equipped this morning to argue the jurisdictional point that had been made in the course of the deliberations yesterday.  The solicitor on the record for the plaintiff responded to that this morning with an email saying that the plaintiff accepted that the Federal Court did not have jurisdiction and he was too busy to attend the resumed hearing in the Federal Court this morning because he was preparing an application to be made in this place.

HIS HONOUR:   Right.  Yes.

MR BROWN:   Your Honour, if I can just touch finally on my learned friend’s allusion to matters elsewhere in the High Court, those, as your Honour may well be aware, are matters in relation to applicants in the offshore migration zone.  They are not in relation to applicants – plaintiffs rather, of the sort that we are dealing with this afternoon where not only has the plaintiff been through the Federal Magistrates Court, the Federal Court

and the High Court and then again in the original jurisdiction in the High Court, but has also had, I think, something of the order of a dozen requests considered and rejected under both section 417 and 48B.

So in terms of opportunity to put what appears to be the core argument here which is about the RRT research paper, that opportunity has been afforded and there really is not anything new here, your Honour.  Unless I can help you further.

HIS HONOUR: I have nothing on the record to indicate the basis upon which the earlier section 417 requests were made, that is post 2009.

MR BROWN:   No, your Honour, there is not anything on the record to that effect.  I could provide some material if that would assist the Court.

HIS HONOUR:   Yes.

MR BROWN:   I would like to have been able to do that, your Honour.

HIS HONOUR:   All right.  I will hear from Mr Tringas.  Thank you.  Yes, Mr Tringas.

MR CHEUNG:   Your Honour, Mr Tringas has asked me to say the final words to your Honour.

HIS HONOUR:   Yes, Mr Cheung.

MR CHEUNG:   Thank you, your Honour.  I think, with respect, your Honour, the very point that we are here today is that we are at least trying to give the client the last benefit of the doubt and because we are a new legal team here today we did spot a couple of things that appeared to be prima facie on the face of it amiss and we are just seeking the indulgence of this Court because as a matter of life or death we need some time to see what we can do. 

Like I was saying, with respect, just now, your Honour, it would be of no prejudice to the respondent.  We just seek this Court’s indulgence in granting a reprieve so that we can have the possibility to make sure that we can have final closure to this matter here, your Honour.  A couple of days, a week, a fortnight would not harm anyone, your Honour, but at least the client would be given the benefit of the doubt, your Honour, and the client would be given the actual ability to avail himself to the last possible natural justice step that can be accorded to him, your Honour.

HIS HONOUR:   Yes, all right.  Thank you, Mr Cheung.

MR CHEUNG:   Thank you, your Honour.  Thank you for your time today.

HIS HONOUR:   I will just adjourn for a few minutes to consider what course I should take.

AT 12.08 PM SHORT ADJOURNMENT

UPON RESUMING AT 12.24 PM:

HIS HONOUR:   This is a summons for an injunction to restrain the Minister for Immigration and Citizenship from deporting the plaintiff from Australia. It is so expressed. It is, nevertheless, evidently sought as a measure of interlocutory relief pending the hearing and determination of a challenge, not precisely formulated, to a ministerial refusal to consider the exercise of power under section 417 of the Migration Act 1958 (Cth) to substitute for a decision of the Refugee Review Tribunal made under section 415 adversely to the plaintiff a decision more favourable to the plaintiff.

The history of this matter is long and complex and was set out in the reasons for judgment of Justice Murphy in the Federal Court which were published this morning and which dismissed a similar application purportedly invoking the original jurisdiction of that court.  It is not necessary to repeat that history here. 

It is sufficient to say that the basis upon which the plaintiff apparently seeks relief in this Court is a lack of procedural fairness arising out of what is thought to be the failure of departmental officers to transmit to the Minister material in support of the exercise of his power under section 417 contained in a statutory declaration submitted to him by the plaintiff. The material does not appear to be new. It underpinned an application to this Court in 2009 for constitutional writs against a decision of the Refugee Review Tribunal made in June 2006. Justice Crennan then refused an extension of time and dismissed that application. Since then there have been a number of approaches to the Minister to consider exercising his powers under section 417. No proceedings have been instituted in respect of those applications.

In my opinion, the application for injunctive relief is based on a speculative possibility that there might be some relief available in respect of the ministerial refusal to again consider intervening under section 417. In light of the history of the matter and the provisions of section 417 the prospects of success are negligible. In my opinion, the application for urgent injunctive relief should be refused. The substantive application does not, in terms, describe the decision to which it is directed. On the face of it, that application could not stand without amendment.

So, Mr Tringas, what I propose to do is to therefore dismiss your summons for injunctive relief and the question that then arises is what should happen in respect of the substantive application.  It seems to me that given that it does not identify the decision of the Minister which is being challenged it should either have to be amended within a few days or stand dismissed if you want to proceed with it.  Of course, that may be academic in light of the refusal of the injunctive relief you seek.  What course would you wish to take in that respect?

MR TRINGAS:   I would need some – my colleague instructs me to proceed with that application.

HIS HONOUR:   At the moment I think that that application on the face of it requires attention but in any event what I will do is I will dismiss your application for the interlocutory relief and I will give you, perhaps, 14 days in which to file an amended substantive application if you decide to proceed with it.  If you do not decide to proceed with the substantive – or if you do not get instructions to proceed with the substantive application which, as I said, may well be – it is a bit difficult to see how it could proceed in the absence of the grant of interlocutory relief – then perhaps the best course might be simply to either make an order that it stand dismissed or, alternatively, an order with liberty to apply and then the defendant can always come back and apply to have it struck out or you can file a discontinuance.  That will give you time to consider your position, I suppose.

MR TRINGAS:   Yes.  Perhaps with liberty to apply.

HIS HONOUR:   Yes.  Mr Brown, what do you have to say?

MR BROWN:   Well, your Honour, given that the application for interlocutory relief has been dismissed the Minister’s view is that there is really no point in a further application being brought given that the plaintiff has already had a full opportunity in the High Court to prosecute the argument that he appears to be putting.  It is therefore really just an application that would be intended to buy time rather than something that would have any substantive basis to it, particularly in the light of the number of occasions upon which the plaintiff’s case has been heard in different courts, including in this Court before Justice Crennan.

HIS HONOUR: That was a different application before Justice Crennan. I think that is important. That related to the Refugee Review Tribunal. This relates to the ministerial power under section 417. It might be best if I simply dismiss the summons and then give liberty to apply in relation to the substantive application so that you can come back to seek to strike it out or they can discontinue it if they are not proceeding with it.

MR BROWN:   As the Court pleases, but the earlier that can be done the better, your Honour, given that ‑ ‑ ‑

HIS HONOUR:   It does not of itself operate as any form of bar to the plaintiff’s deportation.  I have refused the interlocutory relief.

MR BROWN:   It does not, your Honour, but obviously the Minister would be minded that there was still a matter potentially on foot before this Court.

HIS HONOUR:   Yes, all right.  Now, do you seek any order for costs of today’s proceedings?

MR BROWN:   Yes, please, your Honour, we do seek costs.  Perhaps we could seek them fixed in the sum of $1,000.

HIS HONOUR:   Mr Tringas, can you resist that order?

MR TRINGAS:   No, I cannot.  My colleague is asking whether that sum could be reduced, but I do not really propose to object to that order being made.

HIS HONOUR:   Yes, all right, thank you.  I think in respect of the substantive application it is not at all clear to me how that application can go forward in light of its absence of intelligible content and, indeed, the utility of the application in light of the refusal of interlocutory relief is another serious matter.  I think I should give you some time to consider that.  That will not, of course, prevent the Minister from proceeding to remove your client from Australia.  The bar which you sought in that respect has been refused. 

The orders I propose to make are the following:

1.The summons filed on 11 January 2012 is dismissed.

2.The plaintiff is to pay the defendant’s costs of the summons fixed in the amount of $1,000.

3.The application to show cause will stand dismissed unless an amended application is filed and served within 28 days.

4.There is liberty to apply.

The Court will adjourn.

AT 12.34 PM THE MATTER WAS ADJOURNED