Plaintiff S302/2010 & Ors v Minister for Immigration and Citizenship

[2011] HCATrans 112

[2011] HCATrans 112

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S302 of 2010

B e t w e e n -

PLAINTIFF S302/2010

Plaintiff

and

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Defendant

SECRETARY FOR DEPARTMENT OF IMMIGRATION AND CITIZENSHIP

Second Defendant

Office of the Registry
  Sydney  No S303 of 2010

B e t w e e n -

PLAINTIFF S303/2010

Plaintiff

and

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Defendant

SECRETARY FOR DEPARTMENT OF IMMIGRATION AND CITIZENSHIP

Second Defendant

Office of the Registry
  Sydney  No S316 of 2010

B e t w e e n -

PLAINTIFF S316/2010

Plaintiff

and

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Defendant

SECRETARY FOR DEPARTMENT OF IMMIGRATION AND CITIZENSHIP

Second Defendant

Office of the Registry
  Sydney  No S9 of 2011

B e t w e e n -

PLAINTIFF S9/2011

Plaintiff

and

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Defendant

SECRETARY FOR DEPARTMENT OF IMMIGRATION AND CITIZENSHIP

Second Defendant

Office of the Registry
  Sydney  No 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 S11 of 2011

B e t w e e n -

PLAINTIFF S11/2011

Plaintiff

and

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Defendant

SECRETARY FOR DEPARTMENT OF IMMIGRATION AND CITIZENSHIP

Second Defendant

Office of the Registry
  Sydney  No S12 of 2011

B e t w e e n -

PLAINTIFF S12/2011

Plaintiff

and

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Defendant

SECRETARY FOR DEPARTMENT OF IMMIGRATION AND CITIZENSHIP

Second Defendant

Office of the Registry
  Sydney  No S13 of 2011

B e t w e e n -

PLAINTIFF S13/2011

Plaintiff

and

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Defendant

SECRETARY FOR DEPARTMENT OF IMMIGRATION AND CITIZENSHIP

Second Defendant

Office of the Registry
  Sydney  No S16 of 2011

B e t w e e n -

PLAINTIFF S16/2011

Plaintiff

and

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Defendant

SECRETARY FOR DEPARTMENT OF IMMIGRATION AND CITIZENSHIP

Second Defendant

Office of the Registry
  Sydney  No S17 of 2011

B e t w e e n -

PLAINTIFF S17/2011

First Plaintiff

PLAINTIFF S17/2011

Second Plaintiff

PLAINTIFF S17/2011

Third Plaintiff

and

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Defendant

SECRETARY FOR DEPARTMENT OF IMMIGRATION AND CITIZENSHIP

Second Defendant

GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 29 APRIL 2011, AT 9.28 AM

Copyright in the High Court of Australia

__________________

MR S.E.J. PRINCE:   If the Court pleases, your Honour, I appear with my learned friend, MR Q.T. NGUYEN, for the applicant in that matter.  (instructed by Parish Patience Immigration, Lawyers)

MR G. KENNETT, SC:   May it please the Court, I appear with my learned friend, MS A. MITCHELMORE, for the Minister in that case and in the others which are listed.  (instructed by Australian Government Solicitor)

HIS HONOUR:   And in the other nine matters.

MR KENNETT:   Yes.

MR PRINCE:   I appear in the other nine matters as well, your Honour.  We have had some discussions in the time that your Honour has allowed.  We have narrowed the cases down to five.  It still may be too many, but the course that, I think my learned friend and I would ‑ ‑ ‑

HIS HONOUR:   The other four are not presently in the list, are they?

MR PRINCE:   They are not, your Honour, no.

HIS HONOUR:   They are not with the files.  They are S43/2011, S47/2011, S49 and S51.

MR PRINCE:   That is right, your Honour, yes.  When we have gone through the process of trying to narrow them down we have looked at all of the cases which are related and even outside your Honour’s list and that was an agreed course between the parties.  So that we have now narrowed ‑ ‑ ‑

HIS HONOUR:   Are these non‑immigration cases, any of these candidates non‑immigration cases?

MR PRINCE:   No, they are all immigration cases – sorry, one of them ‑ ‑ ‑

HIS HONOUR:   Non‑refugee cases I am trying to say.

MR PRINCE:   One of them is, your Honour.  One of them is a section 351 case so that we have that there at least.

HIS HONOUR:   Which one is that?

MR PRINCE:   I will just get the number – S43, your Honour.

HIS HONOUR:   Yes.

MR PRINCE:   The next step that I have discussed with my learned friend would be getting all of the documentation or the departmental file in respect of each of those matters so that we have all the documents we are going to need, then obviously once we have those there will need to be an application for leave to amend the summons to properly particularise and to better suit the summons to the documents that we have.  So that can be done – now that we only have five to deal with – relatively soon after getting all the documents I am in the hands of my friend’s instructors as to how long it might take to get the documents together.  So that is where we seem to be, your Honour.

HIS HONOUR:   Yes, Mr Kennett, on this question of timing.

MR KENNETT:   Yes.  Your Honour, I am content for leave to amend to be granted today if that saves a step.  I understand my friend needs some more documents before we can complete the amendments.  We have a large number of them and they can be provided instantly and I am told that we would need approximately a week to complete the collection. 

HIS HONOUR:   When you say a large number, how big is that threat?

MR KENNETT:   One or two of the cases have migration histories that go back 10 or 15 years.

HIS HONOUR:   Right.

MR KENNETT:   In fact, I think there is one that goes back more than that.  So there may be some early files, possibly of minimal relevance to these cases, but some early files that will take some finding.

HIS HONOUR:   Now, in what form then would it – it would be five matters – go forward to the Full Court?

MR KENNETT:   Your Honour, from my point of view, we would seek to have the applications for orders to show cause referred.

HIS HONOUR:   For a final hearing in the first instance?

MR KENNETT:   Yes.  We would essentially be most – I think both parties would be most interested in the Court’s view on threshold questions as to whether these claims are viable as distinct from the nitty-gritty of the grounds of review, although we obviously would not seek to prevent the Full Court from dealing with that nitty-gritty.

HIS HONOUR:   We can always refer that back, I suppose, if need be.

MR KENNETT:   That would be a possibility, yes.

HIS HONOUR:   Yes, all right.  Is there a realistic possibility of being ready for the week of 21 June?

MR KENNETT:   I think that would be pushing it, your Honour.

HIS HONOUR:   I think so too.  Yes, all right.  What sort of leave do you need this morning, Mr Prince?

MR PRINCE:   Leave to amend the summonses in each of the five matters that I have identified to your Honour, but I think that would be all, but your Honour would need to put some sort of timeframe on that and that I do not know at this stage, until I see the volume of documentation, how long realistically it will take me to get through it.

HIS HONOUR:   Yes, I see.

MR PRINCE:   I do not want to give your Honour an unrealistic timeframe.

HIS HONOUR:   No.

MR PRINCE:   Perhaps then it might be – if the understanding is that that material can be provided relatively soon, perhaps the best course then would be to stand the matter over for further directions once the documents have been provided and I can give your Honour a proper estimate of how long it might take to amend the summons.

HIS HONOUR:   Thank you.  Just give me a minute.

MR PRINCE:   Thank you, your Honour.

HIS HONOUR:   I suspect it is going to take the Minister longer than we might think to find some of these documents, particularly if the files go back almost to a pre‑electronic era.

MR KENNETT:   Yes, your Honour.  The earliest files in these cases will obviously long predate any application for ministerial intervention, so the contents of them are probably not going to be relevant, although, of course, one can never be entirely sure.

HIS HONOUR:   Do we need further to list the nine matters in the list this morning?

MR PRINCE:   I do not think so, your Honour.

HIS HONOUR:   I would not have thought – they can drop out, I think.

MR PRINCE:   They can, your Honour, yes.

HIS HONOUR:   All right.  Are counsel available in Sydney on Friday, 20 May?  Ms Mitchelmore can adequately cope if you are not available, Mr Kennett.

MR KENNETT:   Yes, I am available, your Honour.

HIS HONOUR:   I will say:

1.Grant leave to the applicants to amend the summonses in applications S10/2011, S43/2011, S47/2011, S49/2011 and S51/2011 –

I will not put a time limit on that, Mr Prince.

MR PRINCE:   Thank you, your Honour.

HIS HONOUR:  

2.Stand over for further directions before me at 9.30 am on Friday, 20 May the applications listed in order 1.

3.Stand out of the list the remaining nine applications that are in the list today.

4.Costs of today be costs in the applications listed in order 1.

Is there anything else?

MR PRINCE:   No, your Honour.

MR KENNETT:   No, your Honour.

HIS HONOUR:   Thank you.  I will now adjourn.

AT 9.42 AM THE MATTERS WERE CONCLUDED