Wei v Minister for Immigration and Border Protection

[2015] HCATrans 73

[2015] HCATrans 073

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S9 of 2015

B e t w e e n -

WEI WEI

Plaintiff

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Defendant

Directions hearing

GAGELER J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO SYDNEY AND MELBOURNE

ON TUESDAY, 7 APRIL 2015, AT 1.57 PM

Copyright in the High Court of Australia

MR L.J. KARP:   May it please your Honour, I appear for the plaintiff.  (instructed by Lawside Lawyers)

MS R.S. FRANCOIS:   If the Court pleases, I appear for the defendant Minister.  (instructed by Australian Government Solicitor)

HIS HONOUR:   Mr Karp?

MR KARP:   Yes, your Honour.

HIS HONOUR:   I do not propose today to make any dispositive orders in these proceedings.  I do want to understand the nature of the case you seek to bring, and I do want to understand the scope of any true factual dispute, and what you say is necessary to have the matter ready for hearing either before a single judge or before an appropriately constituted Full Court.  As I understand it, it is common ground that the matter cannot be remitted either to the Federal Circuit Court or to the Federal Court of Australia.

MR KARP:   That is correct, your Honour, yes.

HIS HONOUR:   Yes.  Now, as I understand it, Mr Karp, it is critical to the case that you want to bring, however it might be put, that the plaintiff was in fact enrolled in a registered course at Macquarie University as at the date of the delegate’s decision.  Is that correct?

MR KARP:   That is correct, your Honour, yes.

HIS HONOUR:   There seems, from the material that has been filed, to be a contest of fact about that critical factual assertion.

MR KARP:   I am not sure that there is a contest of fact, your Honour.  Page 9 of Mr Wei’s affidavit of 2 January 2014 – I am sorry ‑ page 9 of the exhibit to that affidavit.

HIS HONOUR:   Yes.

MR KARP:   Yes, your Honour, that document is a confirmation of enrolment document for a Macquarie University foundation program, commenced on 24 June 2013 and ending on 13 June 2014.  Now, that document was created, your Honour might be able to see on the second page, on 18 November 2014.

HIS HONOUR:   Yes.

MR KARP:   Now, I do not understand – my friend may wish to correct me – but I do not understand that there is any dispute that that document is evidence that my client was enrolled in a course between those dates, June 2013 and 2014.

HIS HONOUR:   I was looking at paragraph 10 of the outline of defendant’s submissions, Mr Karp.

MR KARP:   Yes, your Honour, I have just been told by my friend that that is incorrect, that what I have said is incorrect, that that is not accepted by the Minister.

HIS HONOUR:   Well, it is a pretty significant factual dispute on a topic which I thought really should be the subject, or at least able to be the subject, of agreement between the parties.  I am not asking you to resolve it now, but I do intend, if the matter is to go forward, to make some directions that will allow further evidence to be filed or an agreed statement of facts, or if necessary, both.

MR KARP:   Yes, your Honour.

HIS HONOUR:   Now, for the moment, I have some difficulty in knowing what to make of the document that you have just drawn my attention to, particularly in light of the apparent dispute about what is to be inferred from the statements made in it.  I also have some difficulty in knowing what to make of the printouts from what appears to be a PRISM database, annexed or exhibited to affidavits filed on behalf of the defendant.  I am not even sure, having looked at these materials, that I understand what it means in this relevant statutory context to be “enrolled in a course”.

Now, these things really should be, as I said, able to be the subject of agreement.  If not, then it appears there will need to be some determinations of fact which I suppose I will have to make myself.  Now, Mr Karp, there is an aspect of your case that I do not quite understand.  You have a constructive failure to exercise jurisdiction ground.  You also have, apparently overlapping, a procedural fairness ground.  Do ‑ ‑ ‑

MR KARP:   The – I am sorry, your Honour.

HIS HONOUR:   Go ahead please.

MR KARP:   I was going to say that the way I would – in view of the documents which have come to light since the application was filed, the relevant particular would be particular (b) of ground 1 of the application.

HIS HONOUR:   So you would not propose to proceed with particular (a)?

MR KARP:   Not on the basis of the facts as I understand them. The document which should have been sent to the Minister’s department, that is, the document at page 9 of Mr Wei’s affidavit of 2 January, clearly was not sent within the time limited by section 19 of the Education Services for Overseas Students Act.

HIS HONOUR:   Is it any part of your case to say that there was non‑compliance with the notification requirement in section 119 of the Act?

MR KARP:   I think it is section 19 of the Act, your Honour.

HIS HONOUR:   It is 19, is it?

MR KARP:   Yes, it is, your Honour, and yes, that is my case.

HIS HONOUR:   No, I am sorry, when I say the Act, I mean a different Act, I mean the Migration Act; notice of the proposed cancellation decision.

MR KARP:   No, your Honour, that is not part of my case.

HIS HONOUR:   So, your case turns entirely on the failure of Macquarie University to comply with section 19 of the Education Services for Overseas Students Act 2000.

MR KARP:   Yes, your Honour.

HIS HONOUR:   I see.  Now, Mr Karp, do I take it that I can treat paragraph (a) of the particulars as abandoned?

MR KARP:   Yes, your Honour, you can.

HIS HONOUR:   Is there any other amendment you would wish to make to the grounds on which you claim relief?

MR KARP:   No, your Honour.

HIS HONOUR:   What, if any, further evidence would you propose to lead on a final hearing if, as I understand the case to be, the central fact you assert is contested?

MR KARP:   There may be – depending on what is available, your Honour – there may be other evidence of Mr Wei’s enrolment in that course, in which case I would seek to adduce that evidence.  That would be, for the moment, the only additional evidence that I could envisage.

HIS HONOUR:   How much time would you wish to ask for to make a decision about that?

MR KARP:   If I could seek instructions for a second, your Honour?

HIS HONOUR:   Go ahead.

MR KARP:   I am sorry, your Honour, instructions are being sought.

HIS HONOUR:   Well, Mr Karp, perhaps you can take that on notice and when Ms Francois is ready, I will hear from her.

MR KARP:   Certainly, your Honour.

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

MR KARP:   Not at present, your Honour, no.

HIS HONOUR:   Thank you.  Ms Francois?

MS FRANCOIS:   Your Honour, the Minister would propose to issue a subpoena to Macquarie University to try and resolve the question of enrolment, and then given what fell from your Honour earlier, I might need to consider putting on an affidavit to explain in more detail the PRISM records.

HIS HONOUR:   Yes.  Well, that seems to be a sensible course.  Now, I think you need a note from me to issue a subpoena, according to the Rules.

MS FRANCOIS:   Thank you, your Honour.

HIS HONOUR:   I think I can – I think I would need to see the subpoena before it is issued, Ms Francois.

MS FRANCOIS:   Is that the convenient course, to send the draft subpoena to your Honour’s associate, copied to Mr Karp, or would you like us to liaise with Mr Karp first before sending it to your Honour’s associate.

HIS HONOUR:   It would be very useful if you could liaise with Mr Karp about the subpoena, and it would very, very useful, Ms Francois, if you could liaise with Mr Karp about the facts more generally.  It is undesirable to need to have a trial of fact in this Court.

MS FRANCOIS:   Your Honour, it may resolve by reference to the documents produced in response to the subpoena.

HIS HONOUR:   Yes, very well.  When would you be in a position – having liaised with Mr Karp about the form of the subpoena – to provide a draft to me?

MS FRANCIOS:   Your Honour, I might just ask Mr Karp what he is doing this afternoon and tomorrow.  I imagine ‑ your Honour, I think Mr Karp and I can be relatively speedy.  My instructor would need to get final confirmation from the client.

HIS HONOUR:   All right.

MS FRANCOIS:   Hopefully, I would be able to have something to your Honour’s associate by the end of tomorrow.

HIS HONOUR:   Well, I have another matter for directions.  I might leave it to you and to Mr Karp to formulate some appropriate directions this afternoon which would have provision for a draft subpoena to be provided to me and to be issued to Macquarie University if I give the appropriate note.  That would then have provision for further affidavit evidence to be filed by you and by Mr Karp, and provision – and it may be more hope than expectation, that there be an agreed statement of facts filed and that the matter be listed, I think, for further directions before me at the earliest available date.  I hesitate at this stage to fix a date for a trial because it may not be necessary.

MS FRANCOIS:   Thank you, your Honour.

HIS HONOUR:   So, I will stand this matter down to be called again after matter No 2 in my list.  Thank you, Ms Francois.

AT 2.12 PM SHORT ADJOURNMENT

UPON RESUMING AT 2.35 PM:

HIS HONOUR:   Yes, Ms Francois.

MS FRANCOIS:   Thank you for the opportunity to confer with Mr Karp, your Honour.  We have come up with a timetable in light of your Honour’s indication.

HIS HONOUR:   Yes.

MS FRANCOIS:   Is it convenient that I read to you what the parties propose?

HIS HONOUR:   Yes, please, and without me repeating it, unless I see a particular problem, I will make directions in those terms.

MS FRANCOIS:   The first direction is that the defendant provide a draft subpoena to the associate to Justice Gageler by 4.00 pm on 8 April 2015.

HIS HONOUR:   Yes.

MS FRANCOIS:   If Justice Gageler provides a note in accordance with rule 24.02 the subpoena is to be made returnable on 24 April 2015.

HIS HONOUR:   Yes.

MS FRANCOIS:   The plaintiff and the defendant are to file and serve any further affidavit evidence by 1 May 2015.

HIS HONOUR:   Yes.

MS FRANCOIS:   The parties are to file and serve an agreed statement of facts by 8 May 2015.

HIS HONOUR:   Yes.

MS FRANCOIS:   Then, your Honour, it is just to be listed for further directions on a date convenient to your Honour.

HIS HONOUR:   Yes.  I think I would like the directions to be fairly soon after 8 May.  If I need to make some findings of fact myself I think I would rather do it fairly soon after that - bear with me while I look at the diary.  Direction 5 will be:  “List the matter before Justice Gageler for further directions at 2.00 pm on 11 May 2015.”

MS FRANCOIS:   If the Court pleases.

HIS HONOUR:   I will add 6:  “The costs of this directions hearing be costs in the cause.”  I will make orders in those terms and I will indicate to the parties that if this is a matter that I need to hear as a single Judge then, as my diary currently stands, I would be inclined to hear it in the week of 18 May for what I would expect to be no more than half a day.

MS FRANCOIS:   Thank you, your Honour.

MR KARP:   Thank you, your Honour.

HIS HONOUR:   Thank you, Mr Karp and Ms Francois.  The Court will now adjourn.

AT 2.39 PM THE MATTER WAS ADJOURNED