Plaintiff S11/2019 v Minister for Immigration, Citizenship and Multicultural Affairs

[2019] HCATrans 60

[2019] HCATrans 060

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney   No S11 of 2019

B e t w e e n -

PLAINTIFF S11/2019

Plaintiff

and

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Defendant

SECRETARY FOR THE DEPARTMENT OF HOME AFFAIRS

Second Defendant

DUSICA OF THE MINISTERIAL INTERVENTION OF THE DEPARTMENT OF HOME AFFAIRS

Third Defendant

GORDON J

TRANSCRIPT OF PROCEEDINGS

FROM MELBOURNE BY VIDEO LINK TO SYDNEY

ON THURSDAY, 4 APRIL 2019, AT 9.47 AM

Copyright in the High Court of Australia

PLAINTIFF S11/2019 appeared in person.

MR A. MARKUS:   If your Honour pleases, I appear for the defendants in this matter.  (instructed by Australian Government Solicitor)

SITTAMPALAM NALLAINATHAN affirmed as interpreter.

HER HONOUR:   I am speaking to the plaintiff now.  In this matter you have filed a constitutional writ on 14 January 2019 as well as an affidavit affirmed by you on the same date.

PLAINTIFF S11/2019 (through interpreter):   Yes, your Honour.

HER HONOUR:   You received the defendants’ response to that application.

PLAINTIFF S11/2019 (through interpreter):   Yes, your Honour.

HER HONOUR:   In response to that document you filed two sets of submissions, one on 21 March and one on 1 April.

PLAINTIFF S11/2019 (through interpreter):   Yes, your Honour.

HER HONOUR:   Those submissions respond, in substance, completely to the matters raised by the defendants?

PLAINTIFF S11/2019 (through interpreter):   Sorry, I want to speak, your Honour.

HER HONOUR:   Certainly.

PLAINTIFF S11/2019 (through interpreter):   While they were the documents I had submitted to the Court I have not had any response from the Minister.

HER HONOUR:   Yes, you have.  So what happened was – I just took you through it.  They filed a response on 31 March.  Do you have that document?

PLAINTIFF S11/2019 (through interpreter):   No.  I only – through my email I only got the date for the case.  I did not get any other documents with it and only two days ago I submitted another document informing - saying that I have not got any documents.

HER HONOUR:   I just want to make this abundantly clear.  On 31 January of this year, the defendants filed a response.  I have an affidavit of service which records that document was sent to you by express post and was not returned.

PLAINTIFF S11/2019 (through interpreter):   Yes.  However, while they were the documents I had submitted, other than that I had not received any other documents from the Minister.

HER HONOUR:   I understand.  Let us be clear, you got the document that was filed on 31 January 2019 from the defendants?

PLAINTIFF S11/2019 (through interpreter):   No, your Honour.

HER HONOUR:   Well, I have an affidavit of service that says it was sent to you and in response to that you filed two submissions:  the one dated 21 March and the one dated 1 April.

PLAINTIFF S11/2019 (through interpreter):   Forgive me, your Honour, but what is it?

HER HONOUR:   Mr Markus, can you see whether or not he has a copy there of the ‑ ‑ ‑

MR MARKUS:   I will have a look now.  Your Honour, there does not appear to be a copy of the defendants’ response with the documents.

HER HONOUR:   Could you provide a copy – if you have a spare copy you could give him for the moment.

MR MARKUS:   I only have one copy but I do not have any difficulty giving it to the ‑ ‑ ‑

HER HONOUR:   The submissions that you filed on 21 March and 1 April respond to that submission, do they not?

PLAINTIFF S11/2019 (through interpreter):   No, I am only seeing this just now.

HER HONOUR:   I will ask a different question.  You have prepared the submissions, or had them prepared for you, dated 21 March and 1 April?

PLAINTIFF S11/2019 (through interpreter):   Yes, your Honour.

HER HONOUR:   Those submissions deal with legal issues.

PLAINTIFF S11/2019 (through interpreter):   Yes, your Honour.

HER HONOUR:   In those written submissions you seek to address the contentions raised, do you not?

PLAINTIFF S11/2019 (through interpreter):   Yes, your Honour.

HER HONOUR:   Is there anything you wish to add to those submissions?

PLAINTIFF S11/2019 (through interpreter):   Definitely, your Honour.

HER HONOUR:   And what is it?

PLAINTIFF S11/2019 (through interpreter):   I came to Australia in 2012.  Because I had problems in my country only I came by boat to Australia.  Now, it is nearly seven years since then.  But the initial statement taken from me in 2012, the Department of Immigration is yet holding on to that – holding on to that.  But in between that period not only me but my family and everyone has been threatened in my country. 

Now, because of that but unfortunately those cases they say that even if it relates to the Department of Immigration now the lawyers they are saying that those cases cannot be added on to this.  The case which I had on 2012 only, the Department of Immigration is still holding that case against us even up to date.  That is the only case they are holding against us.  Whatever the incidents then everything - incidents just happened after that in between all this period the Department of Immigration is not accepting and they are not willing to accept….This is what I would like to clearly inform you, your Honour.

HER HONOUR:   I understand what you are saying.  I understand that your complaint is that they are not considering subsequent events. 

PLAINTIFF S11/2019 (through interpreter):   Definitely.

HER HONOUR:   Anything else you wish to put to me?

PLAINTIFF S11/2019 (through interpreter):   Yes, your Honour.  In 2018 – sorry, just forgive me, I cannot recollect the exact year – first case was prepared for me.  At that time even my lawyer or whether it were Department of Immigration or the court did not provide me any information that the case was being held.  But the judgment on the case was delivered in favour of the Department of Immigration without me being present.  But only notice I got subsequent to that case from the courts was saying that the case has been dismissed and there is court costs which I need to pay.  That is the only information I got out of that.

On 1 March 2018 I was informed of all the dates through the courts.  Why was it that I was not informed about the first case that was held?  But I took that up in the second court.  I brought it to the attention of the honourable judge at that time.  The honourable judge said as the judge that the judge cannot express any of their opinions on that.  I had paid costs to the lawyer but unfortunately that money has not been paid to the court yet.  Only after that the honourable judge asked me why I was not present that day.  So in response I said that I was never informed of any dates and I did not have any information.

HER HONOUR:   I understand that history, but the difficulty is that is not the application before me.  What you now complain about is what happened subsequent to those events.

PLAINTIFF S11/2019 (through interpreter):   Yes.

HER HONOUR:   Do you wish to say anything further about those matters?

PLAINTIFF S11/2019 (through interpreter):   About what, your Honour?

HER HONOUR:   About the current application before this Court.

PLAINTIFF S11/2019 (through interpreter):   I appealed to the Minister.  My problem has not been escalated to the Minister in the right way.  Now, because of that after I had appealed and filed this action my work rights was withdrawn.  For two months my Medicare had been stopped.  I really wanted some lawyer to represent this case today for me.  I really wanted to bring a lawyer and argue – submit all my arguments and argue on that today.  Therefore I kindly request your Honour to give me an opportunity to get a lawyer or at least if the courts can provide me a lawyer to help me and argue with that case.

HER HONOUR:   The position is this.  I will not give you more time to deal with that because you have filed very substantive submissions already, dated 21 March and 1 April, which seek to set out very detailed submissions on your current application.

PLAINTIFF S11/2019 (through interpreter):   Definitely.

HER HONOUR:   Thank you.  I will now hear from Mr Markus.  The interpreter will interpret what Mr Markus is going to say.

MR MARKUS:   Thank you, your Honour.  Your Honour, there are six matters that I wish to address very briefly.  The first two of them, as your Honour has pointed out, are probably not relevant to the application itself but I did want to mention them so that the record is correct.  Insofar as the applicant stated that he made his original claims in 2012, I simply note that his affidavit discloses at paragraph 3 that the application for a visa was actually made on 22 September 2015.  Not much ultimately turns on that but I did want to make that point.

In relation to the second matter that the plaintiff raised, I simply wish to note that as exhibit NA-4 to his affidavit discloses, especially at paragraphs 3 to 8, the plaintiff was represented before the Federal Circuit Court by lawyers and his lawyers at least were aware of the listing of the matter for hearing on 20 October 2017 because they consented to that listing.

Finally, your Honour, perhaps more relevantly to the application, I indicated when the previous matter was heard that I wanted to say something about the relief.  The only issue that I wanted to draw your Honour’s attention to is that the proceeding seeks relief in relation to both section 48B and section 417 requests and, as your Honour would be aware, section 417 is not in fact available for fast‑track review applicants.

HER HONOUR:   Yes.

MR MARKUS:   Therefore, that part of the proceeding is misconceived in any event for a different reason.  If your Honour pleases.

HER HONOUR:   Thank you.  Anything else you wish to say further – I am speaking now to the plaintiff?

PLAINTIFF S11/2019 (through interpreter):   Yes, your Honour.  They said that the lawyers were present at that case.  But in the second case even the honourable judge had noted that the lawyer representing me had not been present and that I also had not been present.

HER HONOUR:   Thank you.  Anything else?

PLAINTIFF S11/2019 (through interpreter):   I beg of your Honour to give me a chance to say some incidents which just happened in my country.

HER HONOUR:   I understand.  I am not in a position to accept evidence from the Bar table, or statements from the Bar table in the Court from you

about matters that are subsequent to the filing of this application and not relevant to it.  What I can receive and will receive are submissions relevant to the application here - that is your complaint as you identified earlier about the fact that your matter was not escalated to the Minister.  Do you wish to say anything further about that matter - that is the refusal to escalate your matter to the Minister?

PLAINTIFF S11/2019 (through interpreter):   No, your Honour.

HER HONOUR:   What I will do is deliver my orders and judgment tomorrow morning.  You do not need to appear.  You do not need to come to Court.  The judgment will be sent to you by email at your email address on the front of your application.  Thank you for attending.

Adjourn the Court.

AT 10.13 AM THE MATTER WAS ADJOURNED