Plaintiff S7/2019 v Minister for Immigration, Citizenship and Multicultural Affairs

[2019] HCATrans 59

[2019] HCATrans 059

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney   No S7 of 2019

B e t w e e n -

PLAINTIFF S7/2019

Plaintiff

and

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Defendant

SECRETARY FOR THE DEPARTMENT OF HOME AFFAIRS

Second Defendant

DUSICA OF THE MINISTERIAL INTERVENTION OF THE DEPARTMENT OF HOME AFFAIRS

Third Defendant

GORDON J

TRANSCRIPT OF PROCEEDINGS

FROM MELBOURNE BY VIDEO LINK TO SYDNEY

ON THURSDAY, 4 APRIL 2019, AT 9.29 AM

Copyright in the High Court of Australia

PLAINTIFF S7/2019 appeared in person.

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

SITTAMPALAM NALLAINATHAN, affirmed as interpreter.

HER HONOUR:   Can I speak to the plaintiff, please?  In this matter you have filed an application for a constitutional writ.

PLAINTIFF S7/2019 (through interpreter):   Yes, your Honour.

HER HONOUR:   That is supported by an affidavit sworn by you on 7 January 2019.

PLAINTIFF S7/2019 (through interpreter):   Yes, your Honour.

HER HONOUR:   In addition to those two documents, you have filed two sets of submissions, one dated 25 March and one dated 1 April.

PLAINTIFF S7/2019 (through interpreter):   Yes, your Honour.

HER HONOUR:   Is there anything else you wish to say to me in addition to what is set out in those documents?

PLAINTIFF S7/2019 (through interpreter):   Yes, your Honour.

HER HONOUR:   And what is that?

PLAINTIFF S7/2019 (through interpreter):   Yes.  Now, they are telling me to go back to my country.  It is just that I cannot go and live there because there are a lot of problems for me.  Even now my family is having the same problems.  Even now they are being displaced so many times that my family is living – after the displacement of so many places.

HER HONOUR:   I understand that has been set out in the documents that you have already filed.

PLAINTIFF S7/2019 (through interpreter):   Yes.  Now, my mother died about two years ago.  Even when she was dead they would come and deliver a letter saying that even there to come and see them immediately.

HER HONOUR:   All right.  What I am going to ask you to do is to sit and listen to what Mr Markus has to say.  What I suggest is that you write down the things that you wish to say in response to Mr Markus – do you have a piece of paper and pen?

PLAINTIFF S7/2019 (through interpreter):   Yes, your Honour.

HER HONOUR:   The interpreter will interpret what Mr Markus says.  Mr Markus is going to speak slowly and at the end of it you will then have some notes which you can read back to me of the things that you wish to say in response.  Do you understand?

PLAINTIFF S7/2019 (through interpreter):   Whilst he is talking, is it that you will ‑ ‑ ‑

THE INTERPRETER:   He is pointing at me.

PLAINTIFF S7/2019 (through interpreter):   ‑ ‑ ‑ you will tell it in Tamil.

HER HONOUR:   You will what, sorry?

PLAINTIFF S7/2019 (through interpreter):   Interpret it in Tamil.

HER HONOUR:   Correct, that is correct.  Please have a seat.  Mr Markus.

MR MARKUS:   Yes, your Honour.  Your Honour, as already has been noted this proceeding was commenced on 7 January this year by way of an application for a constitutional writ.  The application identifies a number of prayers for relief.  I will return to that issue in due course.  The application is supported by an affidavit of the plaintiff which was affirmed on 7 January and filed on the same day.

HER HONOUR:   You might identify for the plaintiff what your principal complaints are about his application.

MR MARKUS:   Yes, thank you.  My clients’ position in relation to the application is that the arguments put in favour of the application are contrary to various judgments of this Court, perhaps more significantly the judgment in Plaintiff S10, and we say that to the extent that the plaintiff’s latest submissions filed on 1 April seek to distinguish that judgment, they are misconceived.

HER HONOUR:   Yes.

MR MARKUS:   Your Honour, we have set out in the response that was filed on 31 January in some detail the position of the defendants and what is not perhaps specifically addressed in that response is a proposition that appears to emerge from the plaintiff’s latest submissions to the effect that his case can be distinguished from that of S10 and other judgments following Plaintiff S10.

HER HONOUR:   Do you mean by that also SZSSJ?

MR MARKUS:   I also include SZSSJ.

HER HONOUR:   Yes, thank you.

MR MARKUS:   On the basis that he applied for a protection visa under a different regime than Plaintiff S10 did.  In response to that specific argument we note that it is not entirely clear from the plaintiff’s submissions on what basis they seek to justify drawing a distinction – or a relevant distinction in his case. 

I know that your Honour has dealt with a similar application for constitutional writs in the matter of Plaintiff S118/2018 although I should, at the same time, accept that there was no specific argument put in that case that the fact that the application for a protection visa was made under Part 7AA, not Part 7, made any relevant difference.  Nevertheless, neither your Honour nor your Honour’s fellow Judges, Justices Keane and Edelman, who dealt with an application for leave to appeal from your Honour’s judgment, perceived any relevant distinction on the basis that applications for a protection visa were made under the fast‑track regime.

HER HONOUR:   Yes, thank you, Mr Markus.  Anything else?

MR MARKUS:   Your Honour, all I was going to refer to was paragraph 99 of Plaintiff S10 where the plurality set out a number of significant characteristics of the dispensing provisions.

HER HONOUR:   Yes.

MR MARKUS:   I was simply going to make the submission that the observations of the plurality apply to the present case just as much as they did to that of Plaintiff S10.

HER HONOUR:   Thank you very much.

MR MARKUS:   Thank you, your Honour.

HER HONOUR:   Can I then, please, speak to the plaintiff?  Are there particular matters you wish to say in response to Mr Markus’ submissions that are not already set out in your written submissions which seek to address these legal arguments?

PLAINTIFF S7/2019 (through interpreter):   I could not understand, your Honour.

HER HONOUR:   You have filed written submissions which address the legal submissions made by Mr Markus. 

PLAINTIFF S7/2019 (through interpreter):   Yes.

HER HONOUR:   Do you wish to add anything to those legal submissions?

PLAINTIFF S7/2019 (through interpreter):   Yes.  They told us that in the way submitted in the previous case that is all I can submit.  That is what I was told and they said I cannot add on anything more.

HER HONOUR:   Thank you very much.  Anything else you wish to say?

PLAINTIFF S7/2019 (through interpreter):   At the moment I am just getting the visa just like this.  Every month they are being renewed.  I cannot even work anywhere because it is all one‑month visas.  Therefore, anyway some company is giving me some work.  They have understood my position and I have explained to them and they understood that position and they are helping me with a job.  But if some – if I am granted the visa, I can rest assured that I will not be a burden for this country.

HONOUR:   I understand.  What I will do is this.  Tomorrow morning I will deliver orders and reasons for judgment.  You do not have to attend.  The orders and reasons for judgment will be provided to you by email.

PLAINTIFF S7/2019 (through interpreter):   Yes.

HER HONOUR:   Thank you very much for your attendance.

AT 9.47 AM THE MATTER WAS ADJOURNED