Plaintiff S10/2011 & Ors v Minister for Immigration and Citizenship

[2011] HCATrans 182

[2011] HCATrans 182

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 S47 of 2011

B e t w e e n -

PLAINTIFFS S47/2011

Plaintiffs

and

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Defendant

SECRETARY FOR 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

Applications for order to show cause

GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON THURSDAY, 7 JULY 2011, AT 9.30 AM

Copyright in the High Court of Australia

MR S.E.J. PRINCE:   May it please the Court, I continue my appearance with MR Q.T. NGUYEN for the plaintiffs.  (instructed by Parish Patience Immigration, Lawyers)

MR G.R. KENNETT, SC:  May it please the Court, I appear for the defendants.  (instructed by Australian Government Solicitor)

HIS HONOUR:   And for the Secretary?

MR KENNETT:   Yes, your Honour.

HIS HONOUR:   Yes, Mr Prince.

MR PRINCE:   Thank you, your Honour.  Can I update your Honour on what has happened since the last adjournment.  We have completed going through all of the material that was produced by the defendants in relation to each of the five cases and we have tried to particularise as much as we can the denials of procedural fairness points and the information that is relevant to those points.  We have identified one more point in S51, I think it is, that is the fellow who is in detention.  Your Honour would be aware that we were dealing with sections 417 and 48B.  It seems from reviewing the documents that in respect of the fellow who is in detention there is an issue under section 195A.

HIS HONOUR:   Just a minute. 

MR PRINCE:   It is a similar sort of provision, your Honour.  It deals with people who are in detention.

HIS HONOUR:   Yes.

MR PRINCE:   So as we were going through the documents, we discovered that it seems to be that there was some sort of assessment of that gentleman under those guidelines under that section which did not then progress.  So we have dealt with that in the amended application.

HIS HONOUR:   Which one is that?

MR PRINCE:   I think it may be 51, your Honour.  Yes, it is 51, your Honour.

HIS HONOUR:   Yes.  Matter No 5.

MR PRINCE:   Yes, that is right, your Honour.

HIS HONOUR:   Yes.

MR PRINCE:   So we have done our best to get all of that in order and we have provided those amended applications to those instructing my learned friend, although very late, I must say.  It had been anticipated that would be done last Friday.  We served advance copies on Tuesday afternoon, but they had not been settled by senior counsel, Mr Lloyd, who leads me in these matters.  We have subsequently met with him and the document that we have now got is settled and we have given it to my learned friends this morning.  I thought it had been sent last night, but it had not.  So they need some time to digest that.  My friend and I have had a conversation this morning about the progress of the matter.  We anticipate that the next steps would be to identify if there is any dispute about the issues between us and we can do that counsel to counsel and maybe reduce a set of issues that the parties agree would be relevant.

HIS HONOUR:   Each one of these five applications, are they based on a different section?

MR PRINCE:   No.  Well, some of them are only section 417 and some of them are both sections 48B and 417 and only one of them has 195A.  One of them has section 351.

HIS HONOUR:   Section 351?

MR PRINCE:   Section 351.  That is the non‑refugee or non‑asylum seeker one.  That is Kaur, your Honour.

HIS HONOUR:   Yes, No 2.

MR PRINCE:   The only one with a name.

HIS HONOUR:   Any other provisions?

MR PRINCE:   No, your Honour, that is it, those four sections.

HIS HONOUR:   Four sections then.

MR PRINCE:   We might actually be able to get away with having just four cases.

HIS HONOUR:   That is what I was wondering.

MR PRINCE:   Yes.  So that is what we are hoping to get to.

HIS HONOUR:   All right.

MR PRINCE:   If your Honour were to stand the matter over for two weeks to allow my friend and I and Mr Lloyd to have some discussions and also during that time hopefully we can get working on some index to a bundle that might be relevant to the cases.

HIS HONOUR:   How voluminous is the documentary material as it has been isolated?

MR PRINCE:   There is one lever arch folder in each matter and in one of the matters there are two lever arch folders.  So it is manageable and it may be easier just to have those – at least that is what has been given to me, so I assume that is what is there.  It may be easier just to index all of that and put it into some sort of chronological order than to try to then agree on isolating documents, but I am happy to discuss that with my friend, your Honour.

HIS HONOUR:   Will there be contested issues of fact?

MR PRINCE:   I will need to speak to my friend about that.  The only areas where there might be would be whether or not the issues of denial of procedural fairness that we have identified were something that could have been said about, but I have not had discussions with my friend about that, and even if it were, it would simply be evidence from my client saying, “Well, if I had have known about this I would have done X.”  It is difficult to see what could be said about that from the defendants’ point of view.  So I do not anticipate there would be any contested evidence in that sense.  There might be some questions of admissibility or relevance.

HIS HONOUR:   Yes.  There is a question that will have to be grappled with at some stage as to remitter, I suppose.

MR PRINCE:   I think the defendants have taken the view all along that it cannot be remitted, but, yes, that may be a question ‑ ‑ ‑

HIS HONOUR:   Yes, that is right.  I remember, yes.

MR PRINCE:   That may be a question that we might need to revisit, but as it stands ‑ ‑ ‑

HIS HONOUR:   That may itself be a question I suspect.

MR PRINCE:   Yes.  But we have all proceeded on the basis that it is appropriate for this matter to go to a Full Court and we are trying to narrow it down as much as possible to allow that to happen.

HIS HONOUR:   Yes, all right.

MR PRINCE:   Thank you, your Honour.

HIS HONOUR:   Yes, Mr Kennett.

MR KENNETT:   I do not think I have anything to add, your Honour, except that it may well be that if there were contested issues of fact they could come back to be decided by a single judge or conceivably remitted.  What we envisage at any rate is to refer the show cause applications to a Full Court in order to have the big issues of principle determined at that level.

HIS HONOUR:   Yes.  It might be possible to isolate for the Full Court some question of the statutory construction which can be resolved without necessarily thrashing out any specific factual disputes and then it could come back to be decided by a single judge in the light of the ruling as to construction.

MR KENNETT:   Yes, your Honour.

HIS HONOUR:   At the heart of this is the question whether the reasoning in what I will call the Christmas Island Case applies here, is it not, to these sections?

MR KENNETT:   Whether it applies on shore and outside what one might call the – well, the context of people in detention, yes.

HIS HONOUR:   All right.  What will be a convenient date?  Let me see.  Friday, 29 July 2011?

MR PRINCE:   That is suitable, your Honour.

MR KENNETT:   That is suitable for us, your Honour.

HIS HONOUR:   I will stand each of these applications over then before me at 9.30 am on Friday, 29 July 2011.

MR PRINCE:   If the Court pleases.

HIS HONOUR:   I will adjourn.

AT 9.40 AM THE MATTERS WERE ADJOURNED