MZXOT v Minister for Immigration & Citizenship

[2007] HCATrans 441

[2007] HCATrans 441

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M36 of 2007

B e t w e e n -

MZXOT

Plaintiff

and

MINISTER FOR IMMIGRATION AND CITIZENSHIP

Defendant

Application for order to show cause

HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON WEDNESDAY, 22 AUGUST 2007, AT 9.50 AM

Copyright in the High Court of Australia

MS L.G. DE FERRARI:   Your Honour, I appear for the plaintiff.  (instructed by Victoria Legal Aid)

MR R.C. KNOWLES:   If it pleases the Court, I appear for the first defendant, your Honour.  (instructed by Australian Government Solicitor)

HIS HONOUR:   The application is the first return, is it not, of the summons for directions on the initial institution of the proceeding, is that right?

MS DE FERRARI:   Yes, your Honour.

HIS HONOUR:   Yes.

MS DE FERRARI:   And there were a number of orders that I sought in that summons.  Now, after the filing of the summons and the application for the order to show cause, this Court in the case of Bodruddaza dealt with section 486A of the Migration Act, so my learned friend and I think that the first order may not be necessary any more insofar as that section has been held wholly invalid.

As to the second order, it depends, is thereby in a sense as a precautionary measure.  On the plaintiff’s argument we are within the time within – from when he was notified we are within the time of the High Court Rules but there is a dispute as to when notification actually occurred.  Thus to the third order, the order to show cause, I understand that my learned friend accepts that the matter is one that reaches the threshold of a show cause application and agrees that it should go forward.  Now, whether it should go forward by your Honour granting an order to show cause or by the application being referred to the Full Court I will leave it to my learned friend to say.

HIS HONOUR:   What are the issues that you say now fall for determination?  Are they purely questions of law?  Are there any disputed questions of fact?  Do we know that yet until the Minister, in effect, closes his case?

MS DE FERRARI:   As to the notification issue, in my submission, your Honour, we do not know until the Minister closes his case, so we will have to deal with it in the alternative as to when the plaintiff was notified and it might be that the issues of action notification would come to bear on this case as well, but this is a primary ‑ ‑ ‑

HIS HONOUR:   Is that going to be a matter for disputed evidence?

MS DE FERRARI:   No, your Honour.

HIS HONOUR:   Where I am heading is, is it a matter that I should remit?

MS DE FERRARI:   Your Honour, there is nowhere to remit the matter.  That is the second issue that we bring to this Court.  As your Honour would have realised from the papers, this is an order to show cause from what is called a primary decision.

HIS HONOUR:   Primary decision.

MS DE FERRARI:   Because of when the defendant and now the Refugee Review Tribunal say that the plaintiff was notified he was not able to go to the Refugee Review Tribunal and there is an affidavit that shows that response from the Tribunal.  He is not able to go to the Federal Magistrates Court, and the proceedings there, which were initiated while the plaintiff was unrepresented, have been discontinued by consent.  He is not able to go to the Federal Court, this is the only Court, and on the face of the legislation which we attack your Honour does not have power to remit it anywhere.

HIS HONOUR:   You say you attack the legislation.  Which particular provisions are put in issue?

MS DE FERRARI:   A number, your Honour.

HIS HONOUR:   I saw there was a number and that rather made me wonder.

MS DE FERRARI:   Yes.  It is because of how they lock together, but effectively it is in the application for show cause on our list in paragraph 10 in terms of the declaration that is sought as to invalidity.  So that is effectively the provisions that work now so that this Court is forced to deal with all primary decisions that are unreviewable anywhere else, including at merits review by the Tribunal.

HIS HONOUR:   Have the parties given any consideration that they feel able to impart to me about whether it is desirable to make the proceedings in effect returnable in a Full Court in their present state or, rather, whether it may not be better to proceed by way of stated case in which facts are identified as agreed facts or unchallenged facts and the points of validity which your side of the record seeks to raise are articulated with as much precision, perhaps more, than we find in the application for orders to show cause?

MS DE FERRARI:   I am grateful, your Honour.  We actually have given some consideration in the last few days when we were told that the matter was to be listed as to that point for various reasons, including senior counsel

had to absent herself and lateness in the sense of the matter arising, but for the plaintiff we definitely see the force of that suggestion and we do not think it would take very long to draft a special case.

HIS HONOUR:   What I do not want to do is get it into a Full Court and find that there is a war about the facts.

MS DE FERRARI:   I understand, your Honour.

HIS HONOUR:   That is the last ‑ ‑ ‑

MS DE FERRARI:   I can understand your Honour’s concern.  As I say, for the plaintiff’s case we think that the facts about notification are in the affidavit and it is a dispute as a question of law as to the effect of those facts in terms of notification but we do not see any problem in doing a case stated that spells out those facts.

HIS HONOUR:   Yes.

MS DE FERRARI:   Perhaps my learned friend might be able to ‑ ‑ ‑

HIS HONOUR:   Yes.  Mr Knowles, first, is it your side’s contention that I may not remit the matter anywhere?

MR KNOWLES:   Yes, your Honour, as the law presently stands.

HIS HONOUR:   What do you say about giving consideration to a stated case in which facts are identified as agreed or uncontested facts?

MR KNOWLES:   For my own part, your Honour, it sounds like an eminently sensible approach to take in the present case.

HIS HONOUR:   Could I make plain to the parties that what I am talking of is a stated case, not a special case?

MR KNOWLES:   I understand that, your Honour.

HIS HONOUR:   Special cases have become more fashionable of recent times.  They bring with them their own curious difficulties.

MR KNOWLES:   As I understand it, your Honour is seeking perhaps a situation where the parties come to some agreement about critical facts.

HIS HONOUR:   It will throw up whether there is a disagreement.

MR KNOWLES:   Yes.

HIS HONOUR:   There is nothing like having to sit down together or separately, draft the facts, and identify whether those are agreed.  Now, I suspect that that is a process that is going to occupy a fortnight or three weeks.

MR KNOWLES:   Yes, your Honour.

HIS HONOUR:   Maybe longer, but what I have in mind is that it may be as well to stand the matter over to a date, either fixed or yet to be fixed, after the next sittings of the Court.  The Court will sit in the weeks commencing 27 August and 3 September and we could perhaps bring the matter back during the week commencing 17 September which would give you, in effect, three clear weeks plus ragbags of days at the end of this and start of the following week to see whether that would work.  What I would suggest is that I tentatively fix 19 September at 9.30, or such other date as the parties may be advised, as the date at which we should aim.

MR KNOWLES:   Yes.

HIS HONOUR:   I say “aim” because it may be that negotiations will take a little longer, and if they do, so be it, but I do not want this thing to drift on.  If for some reason counsel or their leaders found 19 September particularly awkward, then ring the Registry and we will see if we can find a mutually convenient day.  Would counsel wish to be heard against the proposal that I simply stand the matter over to 19 September at 9.30 or such other date as may be fixed, reserving costs, with the intention that the parties should come back then either having a stated case agreed or an articulated identification of what it is that is in dispute between them, and then we can review how and where we prosecute the matter further?

MR KNOWLES:   Your Honour, that is certainly something that sounds appropriate for my client’s part.

HIS HONOUR:   Yes.  Ms De Ferrari, do you want to be heard against my following that sort of course?

MS DE FERRARI:   No, your Honour.  Just a couple of matters.  The plaintiff certainly does not wish a special case so we are happy with a case stated.

HIS HONOUR:   Yes.

MS DE FERRARI:   I know that senior counsel is away on that date but I will be able to attend and I think that that would be sufficient.

HIS HONOUR:   Of course, but as I say, if the date proposed is likely to prove awkward, at least ask.

MS DE FERRARI:   I understand that.

HIS HONOUR:   Who knows what the answer will be.  If I stand the matter over to 19 September 2007 at 9.30 in Melbourne or such other date as is fixed, reserving the costs, we shall see then where we get to.

MR KNOWLES:   If your Honour pleases.

MS DE FERRARI:   If your Honour pleases.

AT 10.02 AM THE MATTER WAS ADJOURNED
UNTIL WEDNESDAY, 19 SEPTEMBER 2007