Plaintiff S441-2003 v MIMIA

[2003] HCATrans 330

[2003] HCATrans 330

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S441 of 2003

B e t w e e n -

PLAINTIFF S441/2003, an infant by her next friend

Plaintiff

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Defendant

Application for stay

KIRBY J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON MONDAY, 1 SEPTEMBER 2003, AT 2.17 PM

(Continued from 4/8/03)

Copyright in the High Court of Australia

MR B. LEVET:   May it please your Honour, I appear with my learned friend, MS B.C. BOSS, in that matter.  (instructed by Bharati Solicitors) 

MR H.C. BURMESTER, QC:   Your Honour, I appear for the Minister and the Commonwealth, if joined.  (instructed by Australian Government Solicitor) 

HIS HONOUR:   I have received the draft form of the case stated, which appears to follow the discussion which was had in the Court on the last occasion when this matter was before me.  Does that represent an agreed document between both parties? 

MR LEVET:   Yes, it does, your Honour. 

MR BURMESTER:   Your Honour, I have one drafting point I wish to raise at some stage. 

HIS HONOUR:   Is it convenient to take that point now? 

MR BURMESTER:   Yes, your Honour.  It relates to question 4, which essentially reflects the suggestion your Honour made about dealing with the issue of possible deportation.  We think that is covered by a question in this form.  Those introductory words, “In the light of the answer to 2”, I think, your Honour, it would probably be better to say “In the light of the answers to 1 and 2”. 

HIS HONOUR:   I thought of that, too, yes. 

MR BURMESTER:   So I would make that suggestion, your Honour. 

HIS HONOUR:   Yes, I think so.  Do you agree to that, Mr Levet? 

MR LEVET:   Certainly, your Honour, yes. 

HIS HONOUR:   Yes, very well.  I will amend the draft stated case so that paragraph 4 of the questions reserved reads, “In the light of the answers to” – is it 1 and 2? 

MR BURMESTER:   Yes, your Honour. 

HIS HONOUR:   Very well.  I will in due course sign that document and reserve those questions for a Full Court.  One matter did occur to me on reading paragraph 9 and 10 of the draft case stated, and that was whether or not it could be suggested that the hearing of the case stated stand over until after the determination of the proceedings in the Federal Court of Australia,

on the basis that the resolution of those proceedings in favour of the parents and brother might render redundant or unnecessary the answering of the questions by the Full Court which are set out in the questions reserved.  Now, what do you ask me to do in that respect? 

MR LEVET:   Your Honour, I would ask that it not be ‑ ‑ ‑

HIS HONOUR:   What is the status of those proceedings?  What has happened to them? 

MR LEVET:   Your Honour, I am not instructed in those proceedings, and neither is my instructing solicitor. 

HIS HONOUR:   Are they in the control of whoever is controlling the proceedings as representative proceedings?  Is that what is happening?  I do not know. 

MR LEVET:   I would presume so, but, in any event, your Honour, the resolution of those proceedings would only relate to, ultimately, the right of the mother, father and the two children to remain in Australia.  It would not answer the issue of whether this plaintiff is an Australian citizen.

HIS HONOUR:   Or an Australian national. 

MR LEVET:   Or an Australian national.  On that basis, your Honour, I would ask that the matter proceed as expeditiously as possible. 

HIS HONOUR:   Yes.  That does appear to be an answer to my concern, Mr Burmester.  Do you ‑ ‑ ‑

MR BURMESTER:   I think that is correct, your Honour, that the determination of these answers will not be something that, as it were, can be avoided by the resolution of the other proceedings, which I understand are now separate from the representative proceedings.  But as to where they are at, I am unable to assist the Court. 

HIS HONOUR:   Yes.  The other proceedings, in a sense, raise statutory questions concerning the refugee status of the family, as distinct from the constitutional question as to the entitlements under the Constitution of a person born in Australia to remain here, whatever may be the statutory position. 

MR LEVET:   Yes, your Honour.  The other issue – does your Honour have a copy of a summons and affidavit ‑ ‑ ‑

HIS HONOUR:   Yes, I do.  I have seen that.  This is the proposal to amend the parties to include the Commonwealth as a party to the proceedings. 

MR LEVET:   Yes, your Honour. 

HIS HONOUR:   And you have an affidavit, I think. 

MR LEVET:   Yes, your Honour.  There is an affidavit of my instructing solicitor, together with a Form 40 summons in general form. 

HIS HONOUR:   Would you identify the affidavit, please? 

MR LEVET:   Yes, your Honour.  It is the affidavit of Jyoti Bharati, sworn on 29 August 2003. 

HIS HONOUR:   Yes, I have that affidavit and I have read that affidavit.  Do you have any objection to the affidavit, Mr Burmester? 

MR BURMESTER:   No, your Honour.  We consent to the ‑ ‑ ‑

HIS HONOUR:   Very well.  Is there anything else you wish to say? 

MR LEVET:   No, thank you, your Honour. 

HIS HONOUR:   Is there anything you wish to say, Mr Burmester? 

MR BURMESTER:   No, your Honour. 

HIS HONOUR:   Accordingly, I will:

1.        Order that the Commonwealth be added as a defendant to the proceedings, by consent;

2.        Reserve to a Full Court the amended questions reserved as set out in the document which I will now sign and which will be transmitted to the Full Court;

3.        Order that the costs of the proceedings before the Court today be costs in the proceedings so referred;

4.        Certify for the attendance of counsel in public chambers.

Is there anything else that you ask me to do, Mr Levet?

MR LEVET:   No, thank you, your Honour.

HIS HONOUR:   Mr Burmester?

MR BURMESTER:   No, your Honour.

HIS HONOUR:   They are the orders that I make.  As to expedition, I do not imagine that that is something I can say much about at the moment.  I will just transmit your request for a measure of expedition.  As to the length of time for the hearing, what would be your estimate?

MR LEVET:   Up to a day, your Honour.

HIS HONOUR:   What do you say, Mr Burmester?

MR BURMESTER:    Certainly no more than a day.  It might only be half a day, but certainly no more than a day.

HIS HONOUR:   I am inclined to agree with Mr Burmester’s estimate.  I think it is a half day matter and should be noted as such.  It is more likely to get a little bit of expedition if it is noted as such.  They are the orders that I make.  The Court will now adjourn until 10.15 tomorrow morning in Canberra.

AT 2.25 PM THE MATTER WAS CONCLUDED