Plaintiff M57A & Ors v Minister for Immigration & Citizenship & Anor [2007] HCATrans 330 (27 June 2007)

Last Updated: 10 July 2007

[2007] HCATrans 330

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M57 of 2007

B e t w e e n -

PLAINTIFF M57A

First Plaintiff

PLAINTIFF M57B

Second Plaintiff

PLAINTIFF M57C

Third Plaintiff

PLAINTIFF M57D

Fourth Plaintiff

PLAINTIFF M57E

Fifth Plaintiff

PLAINTIFF M57F

Sixth Plaintiff

PLAINTIFF M57G

Seventh Plaintiff

and

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Defendant

COMMONWEALTH OF AUSTRALIA

Second Defendant

Summons for directions

HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON WEDNESDAY, 27 JUNE 2007, AT 10.29 AM

Copyright in the High Court of Australia

__________________

MS D.S. MORTIMER, SC: If your Honour pleases, I appear with my learned friend, MR R.M. NIALL, for the plaintiffs. (instructed by Holding Redlich)

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

HIS HONOUR: Yes, Ms Mortimer.

MS MORTIMER: Your Honour, the substance of the plaintiff’s application to this Court has been resolved by some developments which I understand my learned friend, Mr Horan, is able to announce to the Court.

HIS HONOUR: Yes.

MS MORTIMER: After he does that, your Honour, we have a proposal about what should happen with respect to the proceeding.

HIS HONOUR: Yes. Yes, Mr Horan. The Court door loomed.

MR HORAN: Yes. The position is that the consideration of the visa applications is proceeding and further - - -

HIS HONOUR: When you say “is proceeding”, what do you mean by that?

MR HORAN: Well, two things.

HIS HONOUR: Can I preface what I say by this, Mr Horan? I do not want to end today with the parties going away with different interpretations of what has been said.

MR HORAN: Yes, your Honour.

HIS HONOUR: That would be an unfortunate outcome.

MR HORAN: Can I perhaps start by taking your Honour to the most recent letter from the Department to the plaintiff’s solicitor which is exhibit GC1 to the affidavit of Gavin Carroll sworn on 20 June 2007?

HIS HONOUR: Do I have that? Yes, I do. Just a moment. It is a question of my finding it. So Mr Carroll of 20 June, exhibit?

MR HORAN: GC1.

HIS HONOUR: Just one moment, please. Forgive me. Yes.

MR HORAN: The letter is dated 19 June and it advises of the situation at that date as being that the applications were shortly to be allocated to a decision-maker who would then determine whether an interview is warranted. Now, since that date, as outlined in the subsequent affidavit of 26 June 2007, if I rely on that affidavit and then add further to that affidavit that the two relevant developments are that the applications have been allocated to a delegate of the Minister who will ultimately determine whether to grant or refuse the offshore humanitarian visas and that arrangements are being made to interview the applicants on Nauru over the period between 12 July and 20 July 2007, which is the first available time at which departmental officials and interpreters can arrive on Nauru for that purpose. So that the procedure would be that those interviews will take place and then the applications will be further considered by the delegate who will then determine those applications.

HIS HONOUR: Yes.

MR HORAN: Now, in the light of that, my understanding is that the parties are agreed that the present proceedings should be adjourned to enable the parties to formulate appropriate orders.

HIS HONOUR: Yes.

MR HORAN: So the only order that we would be seeking is an order for the adjournment of the application to a date to be fixed.

HIS HONOUR: You would suggest date to be fixed rather than fixed date?

MR HORAN: I am in your Honour’s hands. It would be also possible to fix an appropriate date which would perhaps be the first available directions date after 20 July. It is not necessarily the case, in fact it is unlikely, that the applications will have been determined by that date, but at least the position will have moved from today.

HIS HONOUR: I would expect that I would be available to sit again during the week of 23 July. That is Monday, 23 July. Murphy on law predicts that whichever date I choose will be only the date in that week I am not available, but I think I am available on each day.

MR HORAN: Yes, well perhaps - - -

HIS HONOUR: Murphy on law is akin to Rafferty on rules, Mr Horan.

MR HORAN: If a date has to be selected, perhaps 25 July, which is also a Wednesday which I think would be – I am told the 26th would be more suitable.

HIS HONOUR: Yes.

MR HORAN: If your Honour pleases.

HIS HONOUR: Now, Ms Mortimer, what do you say?

MS MORTIMER: Given what my learned friend has announced to the Court, your Honour, we are content with an order that our summons dated 24 May 2007 be adjourned to 26 July 2007 and that the costs of today be reserved.

HIS HONOUR: Yes. Let me just make sure, Mr Horan particularly, that my note of what has been said sufficiently records where we have got to. As I say, at the end I do not want people going away with different understandings of what has happened. My understanding, Mr Horan, is (1) the applications referred to in exhibit GC1 to the affidavit of Mr Carroll sworn 20 June 2007 have now all been allocated to a delegate of the Minister for decision; (2) it is proposed that the applicants will be interviewed on Nauru during the period between 12 and 20 July 2007; (3) the decision-maker will determine the applications. I do not record you as having indicated when that would be done, simply that the decision-maker will determine the applications, but that it is useful to adjourn the proceeding to 26 July at 9.30 in Melbourne or such other time as I may fix. Do I accurately record what has transpired?

MR HORAN: Yes, your Honour.

HIS HONOUR: Ms Mortimer, do you accept that I have accurately recorded what has transpired?

MS MORTIMER: I do, your Honour.

HIS HONOUR: Yes, very well. There will be orders in those terms.

MS MORTIMER: If your Honour pleases.

HIS HONOUR: I will adjourn the Court.

AT 10.39 AM THE MATTER WAS ADJOURNED