Nguyen v Minister for Immigration and Citizenship

[2012] HCATrans 42

[2012] HCATrans 042

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S39 of 2012

B e t w e e n -

THI KIM LAN NGUYEN

Plaintiff

and

MINISTER FOR IMMIGRATION AND CITIZENSHIP

Defendant

Application for an order to show cause

HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON MONDAY, 20 FEBRUARY 2012, AT 9.36 AM

Copyright in the High Court of Australia

MR L.J. KARP:   May it please your Honour, I appear for the plaintiff.  (instructed by Vietaust Lawyers)

MR O.R. JONES:   May it please the Court, I appear for the Minister.  (instructed by Clayton Utz)

HIS HONOUR:   Thank you.  Now, we have some short minutes of order which are signed by both parties but all the dates have been left blank.  I think what I will do is not actually grant or refuse the extension of time now.  The matter can be considered when the matter is considered later because, to some extent, the strength of the case is relevant to that.  Let us start with order 2 of the short minutes.  Before I say that, may I take it, Mr Karp, that you have no further evidence you wish to file?

MR KARP:   Your Honour, on the assumption that my friend wishes to file the departmental file, I would have no further evidence.  If that is not correct, then I will endeavour to find further evidence within the timetable or within the parameters of the timetable.

HIS HONOUR:   Mr Jones?

MR JONES:   I do not presently have instructions in that respect, your Honour.  The Minister would await the deadline before ascertaining what evidence and deciding what evidence he would file.

HIS HONOUR:   Do you object to the plaintiff having liberty to file evidence in reply to your evidence in the event that the evidence the Minister files is not conformable with his view of the necessary material?

MR JONES:   No objection, your Honour.

HIS HONOUR:   How long would the Minister need to file evidence?

MR JONES:   A fortnight would suffice, your Honour.

HIS HONOUR:   So that is 5 March.  Then let us make an order that the plaintiff file any evidence in reply.  How many days, Mr Karp?

MR KARP:   Seven, your Honour.

HIS HONOUR:   On or before 12 March.  The next order would be that the plaintiff be granted leave to file a supplementary outline of submissions.  The 19th or do you want more?

MR KARP:   The 19th would be suitable, your Honour.

HIS HONOUR:   Yes.  Then the defendant’s submissions.  Is the 26th all right?

MR JONES:   Yes, that would be convenient, your Honour.

HIS HONOUR:   Then the matter can be fixed for hearing.  Is 2 April suitable?

MR JONES:   That is suitable for the Minister, your Honour.

MR KARP:   And for the plaintiff, your Honour.

HIS HONOUR:   Very well.  We will make it 2 April.  Then there can be liberty to apply and there is no need for a costs order.  I make the following orders:

1.The defendant file his evidence by affidavit on or before 5 March 2012.

2.The plaintiff file any evidence in reply on or before 12 March 2012.

3.The plaintiff have leave to file a supplementary outline of submissions on or before 19 March 2012.

4.The defendant file an outline of submissions on or before 26 March 2012.

5.There be liberty to apply on five days notice.

6.The application for an order to show cause be fixed for hearing on 2 April 2012.

MR JONES:   Is that hearing to include the extension of time, your Honour?

HIS HONOUR:   Yes, everything.

MR JONES:   May it please the Court.

MR KARP:   May it please the Court.

HIS HONOUR:   Just excuse me one moment.  There is just one thing.  Should there be an additional party?  Should the Migration Review Tribunal be ‑ ‑ ‑

MR JONES:   My understanding is that an application was never made to the Tribunal, your Honour.

MR KARP:   Your Honour, that is not quite right.  An application was made to the Tribunal but was out of time and found to be correctly so.  The matter is now simply between the plaintiff and the Minister.

HIS HONOUR:   Yes, I see.  I do not think there is any need to make an order about this at all.

MR KARP:   I do not think so, your Honour, no.

HIS HONOUR:   Adjourn the Court, please.

AT 9.42 AM THE MATTER WAS ADJOURNED