Sultan & Ors v Minister for Immigration, Citizenship and Multicultural Affairs

[2024] HCATrans 89

[2024] HCATrans 089

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S87 of 2024

B e t w e e n -

MD TIPU SULTAN

First Plaintiff

MEHRAB SULTAN

Second Plaintiff

MASUDA BEGUM

Third Plaintiff

HRIDIA SULTAN CHHUYA

Fourth Plaintiff

and

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

Defendant

JAGOT J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA AND BY VIDEO CONNECTION

ON MONDAY, 9 DECEMBER 2024, AT 12.01 PM

Copyright in the High Court of Australia

____________________

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

MR L. BOCCABELLA appears for the plaintiffs.  (instructed by Parish Patience Immigration Lawyers)

MR T. LIU appears for the defendant.  (instructed by Australian Government Solicitor)

HER HONOUR:   Sorry, I can hear a lot of background noise.  Is there somebody speaking who should not be?

MR BOCCABELLA:   Apologies for that, your Honour.  I got the times mixed up and I thought it was Queensland time – it is one of the incidental things that happens – so, I am not in my chambers but I can hear you clearly, and I apologise for any background noise.

HER HONOUR:   Okay.  And I should say, just for the record, I can hear you clearly, Mr Boccabella.  I cannot see you, but I am assuming you are happy to proceed on that basis?

MR BOCCABELLA:   Yes, of course.  Yes.  Thank you, your Honour.

HER HONOUR:   Okay.  The only difference in the timetable between the parties seems to be that the plaintiffs have built in an opportunity to file some further written submissions both in chief, then the defendant in response, then the plaintiffs in reply.  What is the reason for that, Mr Boccabella?  I assumed that what I had was sufficient, in terms of submissions, already.  Is there more that needs to be said?

MR BOCCABELLA:   Well, I believe they are truncated, your Honour, and there is possibly a lot more I could say, and possibly should say, to enable the Court to properly look at the matter.  This case possibly affects hundreds, if not more, of visa applications, where a matter remains dormant for a number of years and then is suddenly revived without notice to the parties. 

It is not just a minor issue for this visa applicant and this plaintiff; it has wider implications for possibly hundreds of people.  So, your Honour, whilst the submissions, of course, are comprehensive in the application, I think it would assist the Court greatly if they were expanded – not to any great degree, but expanded to something like 10 or 12 pages to give full substance to the issues at hand.

HER HONOUR:   Okay.  Mr Liu, do you have any strong view that I should not allow that to happen, now that we have heard what they want to do?

MR LIU:   Your Honour, my instructions are to oppose those written submissions on the basis that the parties have already put on 10 to 12 pages of written submissions, plus the plaintiffs have had an opportunity – in fact, four weeks – to put on reply submissions prepared by counsel.  In those circumstances, your Honour, my submission is that further written submissions would be duplicative.

HER HONOUR:   Would be – duplicative?  Was that the word?

MR LIU:   Duplicative.  Yes, yes.

HER HONOUR:   Yes.  What I would not want to see happen, Mr Boccabella, is, if I give you this opportunity, they should be replacement full submissions – do you know what I mean?

MR BOCCABELLA:   Of course.

HER HONOUR:   I do not want to have to read both the application that is filed on 17 July plus full submissions‑in‑chief.  Does this make sense?  So, I think what you need to do is do a full set – like an amended application for a constitutional writ and the like, and that incorporates everything you want to say in chief.

MR BOCCABELLA:   Yes.

HER HONOUR:   The defendant can then respond, but, again, it is a substituted document.  So, it is just the extra bits can go into that document, whatever they be, and then the same for the reply.

Now, the only other thing I want to raise – and I was not aware of it until you just said it, Mr Boccabella – is you are saying there are hundreds of matters in the same position.  I was intending, when I came on the Bench, simply to hear this matter when it was ready as a single Judge and have a remote oral hearing.  If it is the case that there are hundreds of people in the same position, is there a reason, perhaps, it should be referred to a Bench of three Judges?

MR BOCCABELLA:   Well, there very well could be.  As you can see – obviously, my learned friends disagree with our case – our case is that the visa processing stage had ordinarily been, for many, many years, that a person would lodge an application and, because of the exigencies of public service resources, et cetera, that application would not come to be determined until a couple of years later.

The previous practice had been that an applicant would receive a letter saying that a delegate has been appointed, provide whatever material you need – in the sense that there is a two‑stage process in a visa application:  what we call time of decision criteria, and then there is also time of application criteria.

So, that is what the issue is.  This was a change in practice which does affect hundreds of visa applicants – and I have discussed this with my colleagues in the profession who practice in this area.  So, it may indeed be a case that ought to be referred to a three‑person Bench on that basis, similar to other cases of this type – Berenguel and others – which were referred to a three‑member Bench.

HER HONOUR:   Right.  What do you say about that, Mr Liu?

MR LIU:   I do not have instructions to say anything against that, your Honour.

HER HONOUR:   All right.  What we will do at this stage – I will not actually give you a hearing date.  I will refer the matter to my colleagues so that a decision can be made as to whether there are circumstances that would justify having more than a single Judge.  If the answer is there are not, and it is simply to be heard before me, I can give the parties advance notice that the matter would be listed for hearing, for a remote oral hearing.  It will be a day that we can choose, it will be to the mutual convenience of all.  It would be in the last two weeks of March, if people are available, and if not then, it would be in the last two weeks of April, because otherwise the sitting periods are on.

What we would do is communicate by email to the parties in that event, nominating hearing dates.  You can confer and come back to me with a date.  If it is going to be a Bench of three, probably the same course will occur via the Registry with dates we can convene a Bench of three.  It would be after, as I say, 14 March.  Is that convenient, then?

MR BOCCABELLA:   If your Honour – apologies for speaking over your Honour.  Would it be of assistance to your Honour to have a short affidavit on that question?

HER HONOUR:   As to why you say – I do not need an affidavit, but what might be of assistance is if the parties confer and agree the terms of an email – I do not want to put people to the expense of an affidavit.

MR BOCCABELLA:   Yes.

HER HONOUR:   Even if the email has disagreed bits saying the plaintiff says this and the defendant says that, but certainly an agreed email about what the circumstances are, which – perhaps what you could do is you take instructions, Mr Liu, on whether it should go to a Bench of more than one Judge – I am assuming three – and then an agreed email, even the disagreed bits can be submitted, that sets out the respective positions of the parties or the agreed position of the parties on that and why that is the position.  Now, if that could come in – could that be done by the close of business this Friday?

MR BOCCABELLA:   We will do our best, your Honour.

MR LIU:   I think that is fine, your Honour.

HER HONOUR:   Okay.  So, what I will do is I will make – I have the plaintiffs’ proposed timetable.  I am going to make order 1.  I will make orders 2, 3, 4, and 5.  I just note in order 5 it has it has “March February”, but it should be “7 March 2025”.  I am just going to delete the ‑ ‑ ‑ 

MR BOCCABELLA:   Yes.  Apologies for that.  Yes.

HER HONOUR:   I will make order 6.  Order 7:

7.The matter be listed for a remote oral hearing on a date to be determined in consultation with the parties.

So, we will just work that out via email, so I will just change that order.  Order 8, yes, that will be made.  Order 9 will be:

9.The parties confer and provide to the Court by 4.00 pm on Friday –

whatever that date is.  Is that 16 December?

MR BOCCABELLA:   The 13th, I think.

HER HONOUR:   The 13th.  I am ahead of myself:

13 December 2024 a note identifying their respective positions as to whether the hearing should be before a single Judge or three Judges and the reasons for their position.

As I said, you can agree to disagree; I just want one email that sets out the agreed position or the two positions.

MR BOCCABELLA:   Thank you, your Honour.

HER HONOUR:   So, is that okay?

MR BOCCABELLA:   Yes, thank you, your Honour.

MR LIU:   Yes, your Honour.  Can I ‑ ‑ ‑

HER HONOUR:   Is there any – yes?

MR LIU:   I am sorry, your Honour.  Can I just ask for one adjustment to order 4.  Your Honour will see order 3 provides for the plaintiffs to file affidavits, if any, but order 4 does not provide that for the defendant.  I am not saying that we will file any, but if there is need for any responsive evidence, I would ask the Court to make provision for that in that order.

HER HONOUR:   Okay.  Well, why do I not just add in “and affidavits, if any” in order 4?  I am not anticipating there will be, but if there are, there are.  Is there any other change that is needed, or anything else?

MR LIU:   May it please the Court.

MR BOCCABELLA:   No, your Honour.

HER HONOUR:   Thank you.  Those orders will be made.  A copy will be sent to the parties.  If you send to the Registry the note as per order 9 by 4.00 pm this Friday, I will then refer it.  Given the time of the year, it might be difficult to get a response, but as I say, the hearing will not be until post‑14 March anyway, and we will see what position is taken on the number of judges.  Thank you.  We will adjourn – sorry.  Yes?

MR BOCCABELLA:   Just before your Honour – as is usual, certainly in Queensland at this time of the year, on behalf of myself and my learned friends, we wish your Honour and, indeed my learned friends, the compliments of the season.

HER HONOUR:   All right.  Thank you very much.  Thank you.  We will adjourn.

AT 12.14 PM THE MATTER WAS ADJOURNED