Plaintiff S204/2016 v Minister for Immigration and Border Protection & Anor

[2016] HCATrans 252

[2016] HCATrans 252

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S204 of 2016

B e t w e e n -

PLAINTIFF S204/2016

Plaintiff

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Defendant

ADMINISTRATIVE APPEALS TRIBUNAL

Second Defendant

BELL J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON THURSDAY, 20 OCTOBER 2016, AT 11.18 AM

Copyright in the High Court of Australia

MR J. WILLIAMS:   May it please the Court, I appear for the plaintiff.  (instructed by Russell Byrnes Solicitors)

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

HER HONOUR:   Mr Williams, you may take it that I have read the material.  In submissions that are wrongly entitled “Plaintiff S195 of 2016” filed today ‑ ‑ ‑

MR WILLIAMS:   My apologies, your Honour.  Today?

HER HONOUR:   I am sorry, filed yesterday, the 19th.

MR WILLIAMS:   So that is the outline of oral submissions?

HER HONOUR:   Yes.

MR WILLIAMS:   Yes.

HER HONOUR:   You refer to the circumstance that you have filed an application for leave to appeal from the orders made by Justice Gageler in proceedings that raised the same issue, is that so?

MR WILLIAMS:   That is correct, your Honour.

HER HONOUR:   Yes, I might just ask Mr Markus something.

MR MARKUS:   Yes, your Honour.

HER HONOUR:   Mr Markus, I understand that the Minister’s submission is that the application should be dismissed for the same reasons that were identified by Justice Gageler in the matter of Plaintiff S178A of 2016.

I see the force of that submission, but I am mindful that an application has been lodged to appeal from his Honour’s orders.  In the circumstances, I wonder if the appropriate course is not to stand this matter over pending the determination of the appeal.

MR MARKUS:   Your Honour, formally my instructions are to press for the orders that I am seeking.  Having said that, your Honour, I see the force in what your Honour is suggesting and I do not intend to argue against it.

HER HONOUR:   Thank you, Mr Markus.  Mr Williams, in light of the appeal, it does seem to me that the sensible course is to stand this matter over.  As I see it, the substantive issues are identical as between this application and the matter that was before Justice Gageler.  Now, of course, in the matter before Justice Gageler there was the need for an extension under section 486A(2) of the Migration Act and that is not a difficulty that you face.

His Honour did consider the merits of the arguments that you seek to propound and concluded that they were unarguable, consistently with the determinations of Justices Flick and Siopis in the Federal Court.  An appeal has been lodged against that decision.  The result of that appeal will determine the issue one way or the other.  It would seem sensible to stand this matter over, would it not?

MR WILLIAMS:   Yes, your Honour, it would seem, except for one point, and the point would be this.  We say that it was clearly arguable and we say that there is sufficient doubt – with great respect to Justice Gageler in S178 – for a warrant to reconsideration.  The outcome of that would be 3‑0.  If it was found on appeal it would still – obviously, it would not proceed; it could not proceed.  So we would say, in the circumstances, your Honour, that that would be an appropriate course to allow that ‑ ‑ ‑

HER HONOUR:   That is to stand the matter over?

MR WILLIAMS:   Well, only in that we would suggest and ask for the Court to refer this matter and S178 to the Full Court for final determination.  These issues are substantive issues ‑ ‑ ‑

HER HONOUR:   Mr Williams, matter S178A, as I understand it, is the subject of an appeal from his Honour’s orders.

MR WILLIAMS:   That is correct.

HER HONOUR:   That matter is not before me.

MR WILLIAMS:   No.

HER HONOUR:   That appeal will be dealt with in the usual course and will, one might think, determine the issues that you seek to agitate in these proceedings.

MR MARKUS:   Your Honour, could I just mention this?

HER HONOUR:   Yes, Mr Markus.

MR MARKUS:   It is not actually an appeal, your Honour; it is an application for leave to ‑ ‑ ‑

HER HONOUR:   I am sorry, yes.  Yes, indeed.

MR MARKUS:   Thank you, your Honour.

HER HONOUR:   The application for leave to appeal will be determinative in the sense that, if granted, there will be an appeal and that will either succeed or it will not.  If it is not granted, then it would be difficult to see why another Justice would not, for considerations of comity, adopt the reasoning of Justice Gageler.

MR WILLIAMS:   Unless there is sufficient doubt and we can establish sufficient doubt.  But, your Honour, that would mean that there would be three Justices of the High Court against the matter and that would mean in this matter it would be untenable to proceed in this matter.  We simply say we believe that these matters should go – both be referred and heard by a Full Court, but we accept what your Honour is saying, and in that ‑ ‑ ‑

HER HONOUR:   Well, if you accept what I am saying that is what I propose to do, Mr – I am sorry, Mr Markus, I see you rising to your feet.

MR MARKUS:   Well, your Honour, I was just going to say that if Mr Williams wishes to proceed with the matter today I am content to do so.  I have indicated what my instructions are in relation to the orders that are being sought.  If Mr Williams does not accept that the outcome of the application for leave to appeal will resolve these proceedings, then it may be worthwhile proceeding with this matter today.

HER HONOUR:   Well, Mr Williams?

MR WILLIAMS:   Well, your Honour, Mr Markus’s submission is futile.  Assuming that we move ahead today, and assuming if your Honour finds against us, that would be two Justices against us and I am instructed for an appeal.  Or if your Honour was to find that it was arguable today we would have a split one for and one against.  It would not resolve or bring these issues to finality, and that is my respectful submission.

We either accept that we should wait for the decision by the Full Court on leave to appeal or I would ask your Honour to refer it to the Full Court.  That is the context.  If it is to proceed today, we will not have an outcome, it will not be finalised, and all it will do is mean many more ‑ ‑ ‑

HER HONOUR:   Mr Williams, you may proceed on the basis that I do not intend to refer this matter to the Full Court.

MR WILLIAMS:   Certainly, your Honour.

HER HONOUR:   So, on that understanding, do you seek to have me ‑ ‑ ‑

MR WILLIAMS:   No, your Honour, we ‑ ‑ ‑

HER HONOUR:   ‑ ‑ ‑ make any orders in relation to this matter today?  You understand you filed a summons for directions in the usual course.  The Minister’s attitude is that your claims for relief do not raise an arguable basis for the grant of that relief and, accordingly, that I should today dismiss the proceeding.  Now ‑ ‑ ‑

MR WILLIAMS:   Your Honour, on that point, if I might just say that ‑ ‑ ‑

HER HONOUR:   Well, Mr Williams, either we proceed to deal with the matter today, which includes the Minister’s submission that it should be dismissed, or in light of the pending application for leave to appeal from Justice Gageler’s orders I stand the matter over.

MR WILLIAMS:   The plaintiff accepts the latter as the preferable approach.

HER HONOUR:   I will just raise a matter with Mr Markus again.  Mr Markus, in terms of the efficient conduct of the litigation, it seems to me that standing the matter over to abide the determination of the leave application has much to commend it.

MR MARKUS:   I accept that, your Honour.

HER HONOUR:   Very well.  What I had in mind to do then is simply to stand the proceedings in Plaintiff S204 to a date to be fixed following the determination of the application for leave to appeal from the orders made by Justice Gageler in Plaintiff S178A of 2016 on 9 September 2016.  No further order is required.

MR WILLIAMS:   May it please the Court.

MR MARKUS:   Thank you, your Honour.

HER HONOUR:   Very well, I will adjourn.

AT 11:28 AM THE MATTER WAS ADJOURNED