MZXLD v Minister for Immigration and Citizenship & Anor [2009] HCATrans 260 (7 October 2009)

Last Updated: 7 October 2009

[2009] HCATrans 260

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M42 of 2009

B e t w e e n -

MZXLD

Plaintiff

and

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Defendant

REFUGEE REVIEW TRIBUNAL

Second Defendant

Application for an order to show cause

CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON WEDNESDAY, 7 OCTOBER 2009, AT 9.29 AM

Copyright in the High Court of Australia

MR A.F.L. KROHN: May it please the Court, I appear for the plaintiff. (instructed by Long Lawyers)

MR R.C. KNOWLES: If it pleases the Court, I appear for the first defendant. (instructed by Australian Government Solicitor)

HER HONOUR: I understand there are some developments, Mr Krohn.

MR KROHN: Yes, your Honour. Your Honour, I am instructed in the matter. I was able yesterday to prepare an outline of submissions, which I sent to my learned friend, but it must fairly be said that he has had very little time to read that or consider it. I have also prepared - - -

HER HONOUR: I imagine there may be the need to file answering submissions.

MR KROHN: There may be. I do not know what my learned friend’s view is on that, but there may well be. Your Honour, I hope, will also have seen that there is a further amended application - - -

HER HONOUR: Yes, I have read that.

MR KROHN: If your Honour please. The plaintiff’s position is that the plaintiff seeks leave to amend the application in the terms of that further amended application. The rest of the disposition – at least the procedure is in your Honour’s hands. I have prepared an outline of submissions in support of the application to show cause.

HER HONOUR: I have not seen that, I am bound to say.

MR KROHN: I am sorry, your Honour.

HER HONOUR: I have seen a supporting affidavit, but not an outline of submissions.

MR KROHN: I have a copy that I can hand up, your Honour, and I apologise, your Honour, I have foolishly come with but the one copy.

HER HONOUR: Would you like that handed back?

MR KROHN: Perhaps in due course, your Honour.

HER HONOUR: I will just take a moment to have a look at it.

MR KROHN: Yes, perhaps it may help if I indicate to your Honour that it addresses briefly the chronology, then the issue of the arguments sought to be made on the application and the enlargement of time.

HER HONOUR: So this is a new argument not raised when this was dealt with in a different set of proceedings?

MR KROHN: Yes, your Honour.

HER HONOUR: It is a matter that is capable of being remitted?

MR KROHN: I believe so, your Honour, yes, to the Federal Magistrates Court.

HER HONOUR: I had better hear from Mr Knowles.

MR KNOWLES: Your Honour, I have only had the opportunity of looking at the outline of submissions this morning myself.

HER HONOUR: Yes. I understand that you would need a proper opportunity to consider those matters.

MR KNOWLES: In that regard, your Honour, I do say that irrespective of the arguments that are now raised, the matter is so far out of time no enlargement of time ought to be granted. On the last point that was raised by my learned friend in relation to remitter, it is accepted that that is conceivably possible and within this Court’s power.

HER HONOUR: I think the application for certiorari is two years and five months out of time and the application for mandamus is two years and nine months out of time.

MR KNOWLES: Your Honour, that is if one adopts the rules in the High Court Rules. In relation to the procedure, though, that applies pursuant to section 486A of the Migration Act - - -

HER HONOUR: Yes, there is a limited period of days, is there not?

MR KNOWLES: It is 35 days after the date of the decision.

HER HONOUR: Yes.

MR KNOWLES: As a result of that, yes, your Honour, it is not quite three years but it is well in excess of two years.

HER HONOUR: Is it a section 486A matter?

MR KNOWLES: It is on my reckoning, your Honour, on the basis that the application was filed after the date of the amendments and that is 15 March this year. Even though the decision was made prior to that date those changes to 486A apply in respect of all applications made after that date, even if the decision was made prior to that date.

HER HONOUR: Maybe there should be directions given today to allow you an opportunity to put in written submissions and to allow the plaintiff time to put on submissions in reply because, obviously, you are going to oppose an extension of time, apart from any opposition on the merits as well.

MR KNOWLES: In my submission, the opposition in relation to extension of time is conclusive in this case and even just a cursory glance at the merits of the matter – they would need to be quite profoundly strong, one would say, having regard to the delay and the reasons given for the delay and, in this case, just on a cursory inspection of those grounds, that certainly does not appear to be the case.

HER HONOUR: I suppose all I am saying is I would not be prepared to make any summary disposition of the matter without full opportunity for the plaintiff to respond to whatever you wish to say in opposition to the matter proceeding and, of course, ultimately being remitted. I am just suggesting a directions timetable so that the issues can be fully ventilated rather than have the matter summarily disposed of, in circumstances where there would have been no notice to Mr Krohn of the precise nature of your opposition. I have in mind a short timetable.

MR KNOWLES: Yes, your Honour. The only thing I can say in response to that, your Honour, is that the outline of submissions arguably is sought to predict some of the arguments that would be advanced.

HER HONOUR: Yes, I noticed that.

MR KNOWLES: Particularly in relation to enlargement of time and, in my submission, therefore there is fair warning as to what those arguments are going to be and the arguments that are going to be advanced today. In relation to the merits, I do not think that what I would submit would be startling to my learned friend.

HER HONOUR: No. All I had in mind was something like you could file answering submissions on or before 4 o’clock on Friday. There could be a reply within seven days, the following Friday, and the matter be returned before me during the next week.

MR KNOWLES: Yes. Perhaps if I can seek some instructions about that, your Honour.

HER HONOUR: Yes, very well.

MR KNOWLES: Obviously my client’s preference is to proceed - - -

HER HONOUR: Summarily.

MR KNOWLES: - - - with the matter, but ultimately we will concur with a timetable if that is the Court’s preference.

HER HONOUR: I must say, it is always of great assistance to the Court to have the benefit of your written submissions, Mr Knowles, and I have had that benefit on many occasions. So it seems to me directions and a short timetable is an appropriate way to deal with this matter, having regard to the fact that the amended application was only filed this morning.

MR KNOWLES: Yes. I should just add one other point, your Honour, in relation to the amended application. My learned friend asked whether or not leave would be granted in relation to the further amended application. I am instructed that there is no objection from the Minister for the application to be further amended in the terms - - -

HER HONOUR: So no objection to leave being granted to further amend the application in terms as filed this morning?

MR KNOWLES: No, your Honour.

HER HONOUR: Yes, thank you for that. I will grant that leave. Mr Krohn, do you agree with the course I have proposed?

MR KROHN: Yes, I respectfully agree with that, your Honour. I would say that I have also anticipated that there would be things in my learned friend’s submission to which I would need to give a reply.

HER HONOUR: That is what I have anticipated, even though you have foreshadowed some of the points which will be sought to be made.

MR KROHN: Yes, your Honour.

MR KNOWLES: I am sorry, your Honour. There was just one minor matter, just in relation to the time for the first defendant’s submissions. I am instructed that it may be a little bit tight to prepare and file and serve the submissions by Friday.

HER HONOUR: Well, I was only responding to you, Mr Knowles.

MR KNOWLES: I understand.

HER HONOUR: Do you want then until 16 October 2009?

MR KNOWLES: Yes, that would be adequate, your Honour.

HER HONOUR: Then I will make it a week later in terms of reply submissions.

MR KROHN: Yes, your Honour.

HER HONOUR: Then I will have the matter returned before me the following week.

MR KNOWLES: If your Honour pleases.

HER HONOUR: I direct, firstly, that the first defendants have until 4.00 pm, Friday, 16 October 2009 to file submissions in response the plaintiff’s submissions. Second, I direct that the plaintiff have until 4.00 pm on 23 October 2009 to file submissions in reply and, thirdly, I will direct that the matter be returned for further hearing 9.30 am – shall I make it Tuesday, 27 October 2009? Does that suit both parties?

MR KNOWLES: I should just indicate, your Honour, that it is suitable for the first defendant.

HER HONOUR: Thank you very much, Mr Knowles.

MR KROHN: Your Honour, just a minor administrative matter. My learned instructor is to be away from 24 October until 14 November.

HER HONOUR: If he is going away on 24 October, perhaps I should direct that you have until Wednesday, 21 October 2009 for reply submissions and have the matter returned before me on Friday, 23 October 2009.

MR KROHN: Yes, may it please the Court.

HER HONOUR: Because they are reply submissions, that should be enough time within which to do those. Then I will revise the direction in relation to the reply submissions to a direction that the plaintiff have until 4.00 pm on Wednesday, 21 October 2009 to file submissions in reply. I will direct that the matter be returned for further hearing before me at 9.30 on Friday, 23 October 2009. Nothing further?

MR KROHN: Just two matters, your Honour. I have been working this morning – your Honour will see that the submissions do not include a precise form of the orders that are sought. I anticipate being able to get those done in the course or the next day or so.

HER HONOUR: I probably do not need to make a direction but obviously it needs to be in good time.

MR KROHN: Yes. I will just indicate to the Court that I will get that to my learned friend as quickly as possible in the next few days.

HER HONOUR: Yes, very well.

MR KROHN: I am sorry, I may be out of date, but do I need to ask your Honour to certify for counsel or no?

HER HONOUR: No.

MR KROHN: May it please the Court.

HER HONOUR: Thank you.

AT 9.40 AM THE MATTER WAS ADJOURNED
UNTIL FRIDAY, 23 OCTOBER 2009