Plaintiff S10/2011; Kaur; Plaintiff S49/2011 and Plaintiff S51/2011 v Minister for Immigration and Citizenship and Anor

[2011] HCATrans 260

[2011] HCATrans 260

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S10 of 2011

B e t w e e n -

PLAINTIFF S10/2011

Plaintiff

and

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Defendant

SECRETARY FOR DEPARTMENT OF IMMIGRATION AND CITIZENSHIP

Second Defendant

Office of the Registry
  Sydney  No S43 of 2011

B e t w e e n -

JASVIR KAUR

Plaintiff

and

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Defendant

SECRETARY FOR THE DEPARTMENT OF IMMIGRATION AND CITIZENSHIP

Second Defendant

Office of the Registry
  Sydney  No S49 of 2011

B e t w e e n -

PLAINTIFF S49/2011

Plaintiff

and

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Defendant

SECRETARY FOR DEPARTMENT OF IMMIGRATION AND CITIZENSHIP

Second Defendant

Office of the Registry
  Sydney  No S51 of 2011

B e t w e e n -

PLAINTIFF S51/2011

Plaintiff

and

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Defendant

SECRETARY FOR DEPARTMENT OF IMMIGRATION AND CITIZENSHIP

Second Defendant

GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 13 SEPTEMBER 2011, AT 2.50 PM

Copyright in the High Court of Australia

__________________

MR S.E.J. PRINCE:   I appear with my learned friend, MR Q.T. NGUYEN, for the plaintiffs in these matters.  (instructed by Parish Patience Immigration)

MS A.M. MITCHELMORE:   If the Court pleases, I appear for the defendants in these matters.  (instructed by Australian Government Solicitor)

HIS HONOUR:   There seems to have been some progress made. 

MR PRINCE:   Yes, your Honour, a little bit slower than we had hoped, but nonetheless some progress.  Three of the matters – the books are done and agreed between the parties, subject to one matter which is some of the pages in one of the books should be not reproduced and that can be attended to and I have discussed that with my learned friend this morning.  That eliminates about 80 pages in one of them.

HIS HONOUR:   Right.

MR PRINCE:   Otherwise those three matters are limited to one black spiral binder each.  There is one matter which is more problematic, that is S51, your Honour.

HIS HONOUR:   Yes, I have a draft index here, two volumes.

MR PRINCE:   Yes.  There has been some difficulty with that because there have been some late developments.  Your Honour might recall that this is a fellow who was in detention and there is a section 195A issue in his case.

HIS HONOUR:   Yes.

MR PRINCE:   Initially, back in December 2009 there was something to indicate that he had been recommended for meeting the criteria under 195A.  At the end of last month, beginning of this month, we received that minute which we have had a look at now.  Also, in the meantime, on 9 September, we were advised that the Minister himself has had a look at the 195A issue but has determined not to intervene under 195A, but has determined that it might be open to him to deal with it under 197AB, which means that matter No S51 is not really in a fit state, your Honour, to be referred up because there needs to be some more consideration of the impact of those developments.

HIS HONOUR:   Yes.

MR PRINCE:   But that should not hold up the other three.  I have spoken to my friend about this, your Honour, and I expect that a course that might be most efficient for the Court would be if the three matters that are ready could be referred, subject obviously to your Honour’s views on the books.

HIS HONOUR:   Now, wait a minute, that is S43.

MR PRINCE:   Yes – S10 and S49.  S43 is Kaur, your Honour.  We do not need to anonymise ‑ ‑ ‑

HIS HONOUR:   S10 and S49, is that right?

MR PRINCE:   Yes, that is right, your Honour, those three.  So perhaps the best thing to do would be to stand S51 out of the list with liberty to restore it and the parties can work together on trying to catch it up to the others.

HIS HONOUR:   Yes.  What should I do with the others?  They can really be referred to the Full Court, can they not?

MR PRINCE:   That is right, your Honour.  That is by consent, I think.  My learned friend and I have had a brief discussion this morning about available dates and also the length of hearing.

HIS HONOUR:   Yes.

MR PRINCE:   The estimate is probably a day plus, having looked at the documents.

HIS HONOUR:   Particularly if the other one catches up.

MR PRINCE:   Yes. 

HIS HONOUR:   So at the moment we would be looking for a February hearing date, I think, and we would need some directions this afternoon as to outlines and chronologies and reply, bringing it all up to date by December, I would think.

MR PRINCE:   Yes.

HIS HONOUR:   That sounds sensible.

MR PRINCE:   Yes, your Honour.

HIS HONOUR:   So stand over S51 ‑ ‑ ‑

MS MITCHELMORE:   I am sorry, your Honour, may I just say something in relation to S51.  Rather than stand it out of the list entirely, the preferable course may be to perhaps stand it over for a period of say three weeks and then bring it back rather than have it out of the list and need to be restored, if that is convenient.

HIS HONOUR:   Yes.  I will stand over S51 before me at Sydney on Tuesday, 11 October at 9.30.

MR PRINCE:   Your Honour, it is only a matter in the Industrial Relations Commission, but I do have a hearing that day.  I was wondering does your Honour have an alternative date?

HIS HONOUR:   All right, yes.

MR PRINCE:   Is the 12th suitable?

HIS HONOUR:   Is that all right.

MR PRINCE:   Thank you.

HIS HONOUR:   All right, 9.30 on 12 October.  Now, there are further amended applications to show cause, are there not, in each of them?

MR PRINCE:   Yes, your Honour.  I foreshadowed those on the last occasion.  Would your Honour give leave for those to be filed?  They have already been provided to the Registry, but without leave – except in S51, your Honour, because that might need to be changed again.

HIS HONOUR:   Yes, that is right.  I am just dealing at the moment with Kaur, S10 and S49.

MR PRINCE:   Thank you, your Honour.

HIS HONOUR:   It has already been – it has a “Filed” stamp on it.

MR PRINCE:   If your Honour gives leave, nunc pro tunc.

HIS HONOUR:   All this happened on 1 September, yes.

So in application S51 that is stood over before me at Sydney at 9.30 am on 12 October. 

In respect of Kaur v The Minister and matters S10/2011 and S49/2011, in each case:

1.Leave to file on 1 September the further amended application to show cause.

2.The application is referred for final hearing in the first instance by the Full Court.

3.The written submissions and chronology of the plaintiff be filed and served on or before 14 October.

4.The written submissions and chronology of the defendant be filed and served on or before 18 November.

5.Any reply be filed and served on or before 16 December.

In each of the matters, the costs of today will be costs in the cause.  Do those dates seem suitable?  All right, is there anything else?

MR PRINCE:   No, your Honour.

HIS HONOUR:   I will now adjourn.

AT 3.03 PM THE MATTERS WERE ADJOURNED