Tahiri v Minister for Immigration and Citizenship

[2012] HCATrans 272

[2012] HCATrans 272

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne       No M77 of 2012

B e t w e e n -

JAVED HUSSAIN TAHIRI

Plaintiff

and

MINISTER FOR IMMIGRATION AND CITIZENSHIP

Defendant

Application for order to show cause

HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON TUESDAY, 30 OCTOBER 2012, AT 9.36 AM

Copyright in the High Court of Australia

MS L.G. DE FERRARI:   If the Court pleases, I appear for the plaintiff.  (instructed by Victoria Legal Aid)

MR C.J. HORAN:   May it please the Court, I appear for the defendant.  (instructed by Australian Government Solicitor)

HIS HONOUR:   Yes.

MS DE FERRARI:   Your Honour, the parties yesterday were able to send a case that we indicated was close to final.  We do have a final form of the case.  If I can hand up a copy to your Honour  ‑ ‑ ‑

HIS HONOUR:   Yes, of course.

MS DE FERRARI:   ‑ ‑ ‑ I can indicate quickly what the differences are.

HIS HONOUR:   Thank you, yes.

MS DE FERRARI:   Your Honour will see there is a new paragraph 12 that refers to a definition from the regulations that was not included before and related to that a new paragraph 18, which says that the children were satisfied that definition that is relevant for clause 202.228 as one of the aspects of that clause.  The other difference is that two paragraphs which are now numbered 35 and 36 they were in the reverse order, but chronologically we have now put them in correct order. 

Finally, the wording of the final paragraph has changed and the parties are now content with the wording of that final paragraph at paragraph 43.  The questions have not changed and save for tidying up some typographical errors nothing else has changed. 

HIS HONOUR:   I should say to both parties I was struck by the fact that in a number of paragraphs take the form of the delegate made an entry in the computer system, or something to that effect.  We are not going to end up in the Full Court, are we, with some dispute about the evidentiary significance of any of those facts?

MS DE FERRARI:   No, your Honour.

HIS HONOUR:   I am not conscious of any.  It is simply that reading it, I was struck by the drafting and so long as the parties have given some consideration to their being content that this statement provides them with a sufficient evidentiary basis for their arguments, then that is an end of the matter.

MS DE FERRARI:   Yes, your Honour.  I can indicate the one aspect of the case where the parties have eventually agreed the best way was to put forward a document and for the parties to make submissions refers to the plaintiff’s father and what happened to him, and what was put and so on, so that has to be drawn out from the documents.  But the entries are indicated in that way because your Honour will see when your Honour sees the annexure the printout of the computer entries is not easy to understand and follow, and that was just to highlight the important aspects of it.  But there is no evidentiary issue about that.

HIS HONOUR:   Yes, fine.  Then is there anything further that I need to notice about it?

MS DE FERRARI:   No, your Honour.  We anticipate being able to have the final form with all the attachments and signed possibly at the end of today, otherwise first thing tomorrow.

HIS HONOUR:   Well if I were to say to the parties – not make a direction – but if I were to say to the parties that they should have it filed no later than midday tomorrow, is that definitely practical?

MS DE FERRARI:   That is practical, your Honour.

HIS HONOUR:   How many hours do you think, Ms De Ferrari, the argument of the case will take?

MS DE FERRARI:   Your Honour, I would not be confident it can be done in a half a day I do not think, unfortunately.  There are some issues and it is a little more complicated than the other case, in many ways.  Having said that, it does have the urgency about it, particularly because of the dates of the children, one of them reaching an estimated age of 18 soon, which is a concern.  If there is only half a day in December, your Honour, we will be sure to do ‑ ‑ ‑

HIS HONOUR:   These things have got to be done right.

MS DE FERRARI:   Yes, your Honour.

HIS HONOUR:   We cannot just cram them into the time and then leave it to the Justices to work out afterwards.  Arguments have got to be useful.  Look, if your estimate is that it is more than half a day, Ms De Ferrari, then I will have to speak with the Chief Justice and see what the state of the listings is, and whether it can be accommodated in December.  I do not say it cannot be yet, I just do not know, but do you think a three‑quarter day?

MS DE FERRARI:   A three‑quarter day we would definitely be able to do, your Honour.

HIS HONOUR:   That is if we were to allow a total of say four hours for argument, do you think that would enable you, on your estimates, to have sufficient and amply sufficient time for argument?

MS DE FERRARI:   Yes, your Honour.

HIS HONOUR:   Yes, thank you.  Mr Horan, what do you say about the timing first and then other matters?

MR HORAN:   We are happy for the matter to go forward as soon as possible.  To a large extent we have to accept and adopt the estimate given by the plaintiff as to time, but I would agree that it should be able to be argued within a four‑hour period.

HIS HONOUR:   Do you have a little doubt?  Do you think it might go beyond that?  Can I be as blunt about it as this?  What is available is a Friday where we think we may have a spill over of cases from earlier in the week and at 4 o’clock the Court is departing, and that is the cold hard practical fact of life.

MR HORAN:   I am confident that it will be able to be argued within the available time and that the written and oral submissions can be framed to suit the available time.  It does involve a reasonably complex factual history, but once one has digested that the points are reasonably short. 

HIS HONOUR:   Trudging through the legislative forest is itself a process that will take some time, will it not?

MR HORAN:   Yes possibly, although I am not sure that this case will turn upon the whole forest, rather than a couple of trees.  So, there is probably the ability to focus the issues down to essentially three or four principal arguments that the plaintiff runs and if the parties have a time estimate to work to, then for the Minister’s part at least, we would be prepared to work to the available time.

HIS HONOUR:   As I say, we have got to end up with argument though that is sufficient to tease out all of the issues.  Is there anything else that you think I need to pay attention to, Mr Horan, in the matter?

MR HORAN:   Not on our part.  We think that orders similar to the orders made in the previous matter would suffice for today and we will await word from registry on when a likely hearing date could be accommodated.  I assume that the ‑ ‑ ‑

HIS HONOUR:   We can certainly put you in in February, there is no doubt about that, but it is a question of whether we can put you in in December.

MR HORAN:   Yes, well we are certainly happy to have the matter heard in December if that is possible, your Honour.

HIS HONOUR:   Yes.  Well, the parties to the proceeding having agreed in stating the questions of law arising in the proceeding in the form of a special case for the opinion of the Full Court, I will refer that special case for consideration via a Full Court.  The costs of today’s proceedings will be costs in the proceeding itself.  Yes, thank you.

AT 9.45 AM THE MATTER WAS CONCLUDED