Plaintiff S22/2025 v Minister for Immigration and Multicultural Affairs

[2025] HCATrans 26

[2025] HCATrans 026

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S22 of 2025

B e t w e e n -

PLAINTIFF S22/2025

Plaintiff

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Defendant

EDELMAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA AND BY VIDEO CONNECTION

ON MONDAY, 7 APRIL 2025, AT 4.30 PM

Copyright in the High Court of Australia

HIS HONOUR:   In accordance with the protocol for remote hearings, I will announce the appearances of the parties. 

MR T.M. WOOD appears for the plaintiff.  (instructed by Human Rights Law Centre)

MR M.P.A. MAYNARD appears for the defendant.  (instructed by Australian Government Solicitor)

HIS HONOUR:   Thank you both for coming in at this late hour.  I have received your proposed minute, but there were just a couple of matters I wanted to raise with the parties.  The first point – perhaps if I start with you, Mr Wood – is now that all of the affidavits have been filed, are there any matters of fact that remain in dispute between the parties?

MR WOOD:   Yes, there are, your Honour.  I think last time I somewhat optimistically expressed the view that we would be able to agree certain facts, but having received the defendant’s response and the affidavit and further submission of documents that we obtained as a result of matters raised in that response, there are now some complicated issues of fact that we think – and I think the defendant agrees – will likely need to be resolved through a trial of fact. 

HIS HONOUR:   That involves cross-examination on the affidavits, does it?

MR WOOD:   This might be a matter for Mr Maynard, but there is one matter raised in relation to extension of time, which is about whether or not the account of my client is to be believed in relation to his explanation for the delay.  We say, if the Minister wishes to maintain that that account is – I think in the words of the Minister – implausible, then he will be required to cross‑examine him to comply with the rule in Browne v Dunn.  There should not be other matters of cross-examination, but the documentary picture on the substantive grounds, particularly grounds 1 and 3, is quite complex and would be difficult.

HIS HONOUR:   Yes, there are certainly a lot of documents.  I will come to the cross examination with Mr Maynard in a moment, but one of the orders that I was going to make was that by a particular date – which I will discuss with you in a minute – the parties would issue a statement of agreed facts.  That is, all of the facts that are agreed from the affidavit material that are relevant, and perhaps from what you are telling me Mr Wood, that statement might then need to include those relevant facts that are not in agreement – that are in dispute between the parties.  It probably might be useful for me to hear from Mr Maynard, then, but just before I do, I take it, Mr Wood, that none of the Minister’s affidavit material requires you to cross‑examine any of their witnesses.

MR WOOD:   I think that at the moment, your Honour, the affidavit material is limited to the affidavit of the AGS solicitor, and not contemplating that the ‑ ‑ ‑

HIS HONOUR:   It is really just the annexures that you are relying upon is it not?

MR WOOD:   Yes, that is right, so from our perspective we do not propose to cross‑examine about those matters.

HIS HONOUR:   Thank you.  Mr Maynard, is there any intention to cross‑examine any of the plaintiff’s witnesses or, particularly, the plaintiff himself?

MR MAYNARD:   There is not, your Honour, I can confirm we will not be proposing to cross‑examine the plaintiff himself.

HIS HONOUR:   You are, or you are not, sorry?

MR MAYNARD:  We are not proposing; we will not cross‑examine him. 

HIS HONOUR:   And what facts remain in dispute in those circumstances?  I take it, then, that you will not require an interpreter to be sworn to cross‑examine the plaintiff as to whether he understood documents in English.

MR MAYNARD:   No, your Honour.  If that submission needs to be withdrawn, it will be withdrawn, but that is a matter that can be canvassed at the final hearing, in my submission.  All of the other facts really arise from the documents.  We can certainly negotiate with the plaintiff and agree a list of facts not in dispute, because that will assist the Court.

HIS HONOUR:   Are there any facts in dispute, then?

MR MAYNARD:   I do not anticipate there will be any substantial disputes as to facts.  There are a lot of documents, and the plaintiff wants to draw inferences from those documents, but I do not think there is any substantial disputes as to facts.

HIS HONOUR:   That is very helpful.  Thank you, Mr Maynard.  The orders that I would propose to make, then – which may assist with the efficiency of the hearing – would be, first of all, for an order which the parties helpfully propose, for a joint book of authorities to be filed by 21 April 2025; secondly, by – and hopefully this will leave the parties sufficient time – 19 May 2025, the parties file a statement of all relevant agreed facts derived from the affidavit material that has been filed.

What I anticipate is any fact that the parties wish to rely upon should be in that statement; it can be cross‑referenced to the affidavit material.  Any inferences that the parties wish to be drawn from those facts can be made as a matter of submission.  If it turns out that there are any facts that are in dispute that can be included in a separate section in what would then become a statement of agreed and disputed facts, but at the moment – and I have only read briefly through the affidavit material – it looks to me like any dispute will be about any inference that might be drawn, rather than the facts themselves.

The third order I would make will just be – in circumstances where it may be that the facts or, possibly, inferences will be in dispute – that the matter be listed for a hearing which will be before a single justice on a date to be fixed but which will likely be either the week before the June sittings or likely, given that there will probably be space, during the June sittings itself.  I do not have the calendar in front of me, but that will be during that three‑week period.  Fourthly, I would just make an order that costs be reserved.  Are there any other matters that either of the parties wish to raise?

MR WOOD:   I should just clarify the plaintiff’s position.  I was imprecise, in a sense, when I said there will likely be facts in dispute.  What I really meant is what your Honour has just anticipated, which is that it will be about the inferences to be drawn from the documentary material that will be the subject of contest, I expect, but that will emerge in the course of the ‑ ‑ ‑

HIS HONOUR:   Is this exclusively in relation to the issue about extension of time?

MR WOOD:   No, your Honour, it is also likely in relation to proposed grounds 1 and 3.  Ground 3 is about the privilege or waiver of privilege issue, and ground 1 is about the legal consequences issue – about what the delegate knew at the relevant time and what can be inferred from the material that was before the delegate at the relevant time.

HIS HONOUR:   I see, I see.

MR WOOD:   I just want to clarify that, as far as we know, the documents themselves were obviously not in dispute and the contents of them, as far as I recall them, but what might be drawn about – in particular – states of mind and other actions that were or were not taken, that is likely to be the area of contest.

HIS HONOUR:   Thank you very much, Mr Wood.

MR WOOD:   Just one other matter, your Honour, not to detain us all at the end of the day, but just to clarify something.  The last time your Honour asked me whether there were any issues that overlapped between the three different people who had been detained following a notice issued under the Migration Act, pending removal to Nauru, and the answer I gave at that time was there was not any overlap between my plaintiff in this proceeding, Plaintiff S22, and any of the other two matters.  The position has evolved somewhat since then.

My client has another proceeding which is currently pending in the Federal Circuit Court, that we anticipate will be removed into the Federal Court, which raises an issue about what I can say about the Nauru arrangements more generally, not about the details about the visa decision that is under issue in this proceeding.  That separate issue about the Nauru arrangements overlaps with similar issues in the two other proceedings, one of which is to be heard – I think this is correct, but Mr Maynard can correct me – by the Federal Court next week, but none of that, in my submission, affects anything to do with this particular proceeding for this Court, but I wanted to put that on the record, given your Honour’s question last time.

HIS HONOUR:   Yes, that is very helpful.  The question was motivated by the fact that, given the nature of the matter in this Court, more matters might potentially arise in this Court and whether or not there was any overlap between them.  So, thank you very much.  The orders that I will make will be:

1.By 21 April 2025, the defendant file a joint book of authorities.

2.By 19 May 2025, the plaintiff file an agreed statement of:

(i)all agreed facts upon which the parties rely, and

(ii)any facts in dispute, as derived from the affidavit material filed in the proceeding.

3.The matter be listed for a hearing before a single Justice on a date to be fixed.

4.Costs be reserved.

Thank you both very much.  The Court will adjourn.

AT 4.41 PM THE MATTER WAS ADJOURNED