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

[2011] HCATrans 103

[2011] HCATrans 103

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 TUESDAY, 12 APRIL 2011, AT 9.28 AM

Copyright in the High Court of Australia

__________________

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

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

HIS HONOUR:   Thank you.  What is the situation, gentlemen?

MR PRINCE:   Your Honour has the defendants’ outline of submissions on directions. We agree with what is there, that is, there is the possibility to distil some common issues.  I have had discussions with my friend this morning about the best way to do that.

HIS HONOUR:   The first thing I need to be persuaded, there is no potential for remitter, is there?

MR PRINCE:   No, it does not seem so, your Honour.

HIS HONOUR:   How does that come about?

MR PRINCE:   Because of the combined effect of 474, 476, 476B, 474(7)(a) ‑ ‑ ‑

HIS HONOUR:   All right.

MR PRINCE:   Maybe my friend is best addressing this point.

MR MARKUS:   If I can be of some assistance?  Does your Honour have a copy of the Migration Act?

HIS HONOUR:   Yes.

MR MARKUS:   Can I ask your Honour first to go to section 474?  Your Honour will see that subsection (7) provides that:

To avoid doubt, the following decisions are privative clause decisions within the meaning of subsection 474(2) ‑ ‑ ‑

HIS HONOUR:   It has 48B in it.

MR MARKUS:   Section 48B and section 417 are listed at paragraph one.

HIS HONOUR:   Yes.  Not 46A?

MR MARKUS:   Not 46A, your Honour.  That is the significant distinction in relation to these particular powers.  If your Honour goes to section 476 which deals with the jurisdiction of the Federal Magistrates Court your Honour will see that subsection (2) provides that:

The Federal Magistrates Court has no jurisdiction in relation to –

certain decisions.  Subsection (2)(b) identifies:

a privative clause decision, or purported privative clause decisions –

mentioned in section 474(7).

HIS HONOUR:   Yes, I see.

MR MARKUS:   If your Honour then goes to section 476A which deals with the “jurisdiction of the Federal Court” - I do not need to take your Honour to any particular provision in there just to say that limited jurisdiction does not include jurisdiction in relation to these types of matters.

HIS HONOUR:   Yes, I see.

MR MARKUS:   Your Honour, then if I could refer to section 476B which deals with the remittal from this Court to the other courts, your Honour will see that subsection (2), in particular, deals with remittals to the Federal Magistrates Courts.  Your Honour, that is really the explanation.

HIS HONOUR:   Thank you.

MR MARKUS:   Thank you.

HIS HONOUR:   Yes, Mr Prince.

MR PRINCE:   Thank you, your Honour.  It seems that we really need to be here and the most expeditious way of dealing with the matters – we do not anticipate that they will require any substantial evidence.  There will be a lot of documentation, it is anticipated.  There are FOI requests which have been issued in respect of each of the decisions so that there is generally a minute recording the officer’s decision‑making process in either sending the matter to the Minister or not which is obviously a critical document.  There may be some country information documents which are going to be relevant but the documentation should be manageable.  There are three categories that I have been discussing with my friend this morning.

HIS HONOUR:   Is it not better just to select one of these many cases?

MR PRINCE:   There are probably three irreducible different classes of cases, your Honour, because there are the cases where the 417, 48B request is a first request and that is dealt with differently to when it is a second or subsequent request and there are different issues in the guidelines touching on it.  Then, within the repeat requests there are those which have been not sent to the Minister at all and then there are those which have been sent to the Minister with certain recommendations and which give rise to questions of procedural fairness and the like.

We can probably reduce it to those three classes of decisions, so, first, applications which all seem to get sent up to the Minister one way or the other; second, applications subdivided into those that get through and those that do not.  The parties are happy to have discussions about selecting which are the most appropriate vehicles for dealing with each of those three categories, your Honour.

HIS HONOUR:   What is the point of construction of the Act that you want to agitate - looking at 48B, for example?

MR PRINCE:   With 48B, your Honour, as my learned friend sets out in his submissions, the characteristics of that power are similar to, or have some common features, to the characteristics of section 46A and that is that they are non‑compellable and they draw this bifurcation between the Minister embarking on a consideration of the application and declining to embark on a consideration of the application.  Of course, the Minister has the discretion to completely turn his face against the application and not consider it at all but if he embarks on a process of consideration of the application then we would say questions of procedural fairness arise in the same way that in section 46A where the Minister embarked on a process of consideration of applications to him to exercise his super discretion that breach had been crossed.

The argument in both 48B and 417 really comes out of the nature of the power that is being exercised and whether the guidelines which the Minister has issued under each section 48B and 417 sections to officers to determine when applications will be sent up to him or not be sent up to him - whether those guidelines constitute a step on the road to consideration which then brings with it the exercise of the statutory function and carries with it an implied obligation of procedural fairness.

HIS HONOUR:   The same is true in broad terms of 417?

MR PRINCE:   That is right, your Honour, yes.  They are often considered together at the same time.  There are slightly different issues in the guidelines in respect of each one, different things to be considered and the like but that is broadly the country.

HIS HONOUR:   Do you agree with that, in broad terms?

MR MARKUS:   Yes, your Honour, I do.  There is just one issue that I should mention.  The documentation filed to date on the part of the plaintiffs is not entirely satisfactory for various reasons I do not need to disturb your Honour with today, but it may be preferable to make directions – and this issue is not addressed in my written submissions – which once the parties have agreed, at least, or propose to agree which matters ought to be referred that the plaintiff should file some amended applications.  I do not want to take your Honour to all of the difficulties but there are number of them which I can discuss with my friend.

HIS HONOUR:   Yes.  How soon can you agree these three test cases, because when that is done I will make some specific directions, but I will not do it beforehand?

MR PRINCE:   Would your Honour just give me a moment?

HIS HONOUR:   I was thinking by the last week of April on 27, 28, 29, some day like that?

MR PRINCE:   I think that can be done, your Honour.  We are agreed that the later the better, your Honour, given Easter is there as well.

HIS HONOUR:   Yes.  Shall I say Friday, 29?

MR PRINCE:   Yes, thank you, your Honour.

MR MARKUS:   Thank you, your Honour.

HIS HONOUR:   If that is then in order I can make some specific directions with a view to referring the three test cases to the Full Court either in June or August.

MR PRINCE:   If the Court pleases.

MR MARKUS:   Thank you, your Honour.

HIS HONOUR:   If they did get to the Full Court they would be done in a day – a day plus, probably.

MR PRINCE:   I would say a day plus, your Honour.

HIS HONOUR:   Yes.

MR PRINCE:   It depends on the sort of documentation with each test case.  It should be a day plus.  I would not say a day, your Honour.

MR MARKUS:   Your Honour, I do not know whether the additional arguments about there being more than one case are going to significantly increase the time of the hearing.  The evidence is going to be documentary evidence.

HIS HONOUR:   That is right.

MR MARKUS:   I agree with my friend, probably a day plus, your Honour.

HIS HONOUR:   I will say a day plus.  I need to tell the Principal Registrar what is likely to be coming.  All I do today is to stand over matter No 1 to 9.30 on Friday, 29 April and, likewise, to stand over matters 2 through to 10.  Costs of today will be reserved.

MR PRINCE:   If the Court pleases.

MR MARKUS:   If the Court pleases.

HIS HONOUR:   Is there anything else?

MR PRINCE:   No, your Honour.

HIS HONOUR:   Thank you, gentlemen.  We will now adjourn.

AT 9.41 AM THE MATTERS WERE ADJOURNED