Plaintiff M79/2012 v Minister for Immigration and Citizenship

[2012] HCATrans 271

[2012] HCATrans 271

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne       No M79 of 2012

B e t w e e n -

PLAINTIFF M79/2012

Plaintiff

and

MINISTER FOR IMMIGRATION AND CITIZENSHIP

Defendant

Application for order to show cause

HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON TUESDAY, 30 OCTOBER 2012, AT 9.31 AM

Copyright in the High Court of Australia

MR M.R. PEARCE, SC:   I appear with my learned friend, MS L.G. DE FERRARI, for the plaintiff.  (instructed by Baker & McKenzie)

MR S.P. DONAGHUE, SC:   May it please the Court, I appear with MR C.J. HORAN on behalf of the defendant.  (instructed by Sparke Helmore)

HIS HONOUR:   Thank you.

MR PEARCE:   Your Honour, we filed a special case yesterday afternoon.

HIS HONOUR:   Yes, I have looked at that.

MR PEARCE:   I would just draw one thing to your Honour’s attention.  In paragraph 4 there is a clerical error in the last line; 46(2) should be 46A.  What has happened, as I understand it, is that the registry accepted the filing of a scanned copy of the special case but we are due to put the original signed one in and when we do that we will take the opportunity to correct that error.

HIS HONOUR:   Yes.

MR PEARCE:   Otherwise, the matter is ready to proceed, your Honour.

HIS HONOUR:   How long do counsel think it would take in the Full Court?

MR PEARCE:   It should only take half a day.

HIS HONOUR:   Should only take half a day; will only take half a day?  Forgive me my cynicism.

MR PEARCE:   Pardon me, your Honour.  I expect it will only take half a day.

HIS HONOUR:   Yes.

MR PEARCE:   The points, your Honour, are quite short – power, purpose.

HIS HONOUR:   They are narrow.  I suspect but do not know, but in this one we may be looking to February to hearing.  There may be other issues arising which may bring it on sooner.

MR PEARCE:   The plaintiff’s current visa runs until April, but your Honour may have picked up in the material there are over 2000 people in a similar position to this plaintiff.

HIS HONOUR:   I understand that and therefore it has to be brought on promptly but I suspect the way the list is looking, at least subject to what I am told about Tahiri, my first impression of it was that Tahiri might be one that would be better to put in as a half day case in the December list, but we have, at most, and I am not even certain we have one half day slot left in December.

MR PEARCE:   We would obviously like that.

HIS HONOUR:   I understand that.  I there anything else, then, about this matter that I need to consider or to which I should not pay attention do you think, Mr Pearce?

MR PEARCE:   No, not for me, your Honour.

HIS HONOUR:   All right.  Mr Donaghue?

MR DONAGHUE:   Also nothing from me, your Honour.  I am always slightly nervous about a half day estimate.  This case is quite confined.  It may well be possible to do it within that time.

HIS HONOUR:   Yes.  This is something that the Minister’s side may know better than the applicant’s side; is it likely that the way in which the special case is put will generate answers that will be useful in other cases?  That is, what I am anxious that the Minister might have turned the collective mind to is whether this is the best or at least an adequate – it is enough that I think it is – an adequate case to go forward to raise a point which has to be decided in this case but which if decided may be of utility in other cases of generally similar kind.

MR DONAGHUE:   We think so, your Honour, because really the point of general application is a point concerning the applicability of the 90L(1)(page54) bar and what is in issue here is the policy, such that it is, that led to the grant of the temporary safe haven visas and that bar so we think that this case will serve the purpose that your Honour has identified.

HIS HONOUR:   Yes.  Well, the parties for the proceeding having agreed in stating the questions of law arising in the proceeding in the form of a special case for the opinion of the Full Court, I think the only order I need make is referring those questions for consideration by a Full Court and making the costs of today costs in those proceedings.

MR DONAGHUE:   That, in our submission, is all that is required.

HIS HONOUR:   Yes.  There will be orders in those terms.

Call the second matter in the list, the matter of Tahiri.

AT 9.36 AM THE MATTER WAS CONCLUDED