Plaintiff S162A/2018 & Anor v The Minister for Immigration and Border Protection

[2018] HCATrans 162

[2018] HCATrans 162

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S162 of 2018

B e t w e e n -

PLAINTIFF S162A/2018

First Plaintiff

PLAINTIFF S162B/2018

Second Plaintiff

and

THE MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Defendant

GORDON J

TRANSCRIPT OF PROCEEDINGS

FROM MELBOURNE BY VIDEO LINK TO SYDNEY

ON WEDNESDAY, 22 AUGUST 2018, AT 10.03 AM

Copyright in the High Court of Australia

HER HONOUR:   You are the plaintiffs in S162/2018?

SON-IN-LAW:   Your Honour, I am the son‑in‑law of the plaintiffs, who are on my left, my mother‑in‑law and my father‑in‑law.

HER HONOUR:   I see.  I thought there was an interpreter.  Yes.  The interpreter will interpret for them.  They need an interpreter?  Could I ask the interpreter, please, to move to the microphone so that I can hear that he is speaking?

THE INTERPRETER:   Yes, your Honour.

HER HONOUR:   The people who are standing either side of you are the plaintiffs in this matter?

THE INTERPRETER:   Yes, your Honour.

HER HONOUR:   Thank you.  Could I have the interpreter sworn, please? 

NIZAR ALI, affirmed as interpreter.

HER HONOUR:   Thank you.

MR P.M. KNOWLES:   May it please the Court, I appear for the first defendant.  (instructed by Australian Government Solicitor)

HER HONOUR:   Could I ask the plaintiffs, in relation to the plaintiffs ‑ ‑ ‑

SON-IN-LAW:   Yes, your Honour.

HER HONOUR:   I do not quite understand why you are speaking, sir.

SON-IN-LAW:   I was going to be representing them in just – and that is what I had advised the Registrar.  That is why.

HER HONOUR:   It is unusual.

SON-IN-LAW:   Your Honour, it is also our first time in Court, so ‑ ‑ ‑

HER HONOUR:   Sure, I am trying hard here.  I would prefer, for the moment, to hear what they have to say themselves and then you, if necessary, can add at the end if that is all right.  I would prefer it.

SON-IN-LAW:   Sure, your Honour.  There was something that they wanted to tell the Court in reference early on in the piece ‑ ‑ ‑

HER HONOUR:   Maybe they should tell me.  Can they tell me?  The interpreter should stand and move with the plaintiffs, please.

THE INTERPRETER:   Sorry, your Honour, I am just asking them who is going to speak first.

HER HONOUR:   Thank you.

THE INTERPRETER:   The client is asking me what to say.

HER HONOUR:   That is all right.  Could you please tell me – I would ask that that lady move closer to the microphone for me and I want you to tell me – I want you to talk to me.  Could I ask the son‑in‑law to sit down, please?  Thank you, please sit down.

PLAINTIFF S162B/2018:   Hello, how are you?

HER HONOUR:   How are you?  Now, tell me what you want to say.

PLAINTIFF S162B/2018 (through interpreter):   I want to say I have a case - so I want to ask you, I have a case going on in Federal Court and I am following that case and I will wait for that decision or whatever decision you will make.  So they have not given me any answer yet.  That is why I appeared in High Court.

HER HONOUR:   Where has this case got to in the Federal Court?  Has it been heard?

PLAINTIFF S162B/2018 (through interpreter):   There is no hearing done yet and this is still in pending – that case is pending.

HER HONOUR:   What is that case about?  You will need to speak one at a time because the interpreter has to tell me what you are saying and he cannot interpret two people.

PLAINTIFF S162B/2018 (through interpreter):   So it has been five years since we launched the case.  First, we have given the case to one lawyer, then he passed away and then we gave our case to second lawyer. 

He applied in Federal Court and we have not received any notification on any answer from that court case yet.

HER HONOUR:   When was it filed in that court?  I do not want – it is not easy when – too many people are speaking.  What is the plaintiff saying to you?

PLAINTIFF S162B/2018 (through interpreter):   So when we applied in Federal Court we have not received any answer.  Therefore we are waiting for your decision.

HER HONOUR:   Waiting for my decision?

PLAINTIFF S162B/2018 (through interpreter):   So we are following for a Federal Court decision and the case is continued there once we get the answer.  Hopefully it will be good for us.

HER HONOUR:   So this is the appeal from Judge Nicholls’ judgment, is it?

PLAINTIFF S162B/2018 (through interpreter):   He asked us to put new submission in High Court.  That is why we applied.

HER HONOUR:   I see.  What I propose to do is have a chat to Mr Knowles.  The interpreter will interpret what Mr Knowles is going to say.  Mr Knowles is going to speak slowly.  One moment, Mr Knowles, do the plaintiffs have a paper to write some notes?

MR KNOWLES:   The Registrar is providing the plaintiffs with paper now and they ‑ ‑ ‑

HER HONOUR:   And a pen?

MR KNOWLES:   The plaintiffs’ son‑in‑law has a pen in front of him with the paper.

HER HONOUR:   Could somebody please provide a seat for the other plaintiff who is standing?  Mr Knowles, is it the position that the appeal has not yet been heard by the Federal Court?

MR KNOWLES:   That is the understanding of the defendant.  In the affidavit of my instructing solicitor, Ms Nanson ‑ ‑ ‑

HER HONOUR:   I have read that.  I am asking whether that is still the position.

MR KNOWLES:   Yes.

HER HONOUR:   What do you then propose should happen here?  Is the position that this proceeding should be put to one side or should it be determined?

MR KNOWLES:   In my submission it should be determined.  The appeal pending in the Federal Court concerns judicial review of the decision of the Administrative Appeals Tribunal which found it had no jurisdiction.  The primary focus of the current proceedings is judicial review of the delegate’s decision.  Given that distinction, and given what the Minister has submitted about the lack of merit in the present application, in my submission the Court is in a position to determine the application.

HER HONOUR:   Thank you.  Do you wish to say anything else?

MR KNOWLES:   No, your Honour.

HER HONOUR:   Thank you.  So in relation to the plaintiffs, I have been provided, on your behalf, two sets of submissions.

PLAINTIFF S162B/2018:   Yes.

HER HONOUR:   One is dated 18 June 2018 and the other is dated 15 August 2018.

PLAINTIFF S162B/2018:   Yes.

HER HONOUR:   Do you wish to add anything to what is set out in those submissions?

PLAINTIFF S162B/2018 (through interpreter):   So next year they killed his brother’s son.  So our lives are intact and we would be thankful to you if we get a decision so we can save our lives here and we can stay.  My three children are here in Australia . . . his wife, my daughter.

HER HONOUR:   Anything else I need to know?

PLAINTIFF S162B/2018 (through interpreter):   We just need your help, whatever help you can give us.  We just need a decision.  There is no humility in Pakistan.  We just need your help to save our lives.

HER HONOUR:   This is what I am going to do.  I am going to go away and I am going to read again the papers and the submissions.

PLAINTIFF S162B/2018:   Thank you so much.

HER HONOUR:   I will deliver judgment at 9.30 am on 30 August 2018, next Thursday.

PLAINTIFF S162B/2018:   Thank you so much.

HER HONOUR:   You do not need to attend.  The Court will send you the judgment.  Thank you for attending.  You are excused.

PLAINTIFF S162B/2018:   Thank you so much.

AT 10.17 AM THE MATTER WAS ADJOURNED