Shahi v Minister for Immigration and Citizenship [2011] HCATrans 137 (18 May 2011)

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Shahi v Minister for Immigration and Citizenship [2011] HCATrans 137 (18 May 2011)

Last Updated: 19 May 2011

[2011] HCATrans 137

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M10 of 2011

B e t w e e n -

SAYED ABDUL RAHMAN SHAHI

Plaintiff

and

MINISTER FOR IMMIGRATION AND CITIZENSHIP

Defendant

Summons for directions

CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON WEDNESDAY, 18 MAY 2011, AT 9.30 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 (Civil Law Section))

MR S.P. DONAGHUE: If it please the Court, I appear for the defendant. (instructed by Australian Government Solicitor)

HER HONOUR: Thank you.

MS DE FERRARI: Your Honour, the position is that the parties are in agreement that what was suggested by your Honour last time, that is that the case proceed by way of a special case, is the appropriate way to proceed.

HER HONOUR: Yes. So a question of law will be identified and a special case agreed. Is that the proposal?

MS DE FERRARI: Yes. The parties are working to that. Further, the defendant – and my learned friend will say more about that – but the defendant consents to the necessary extensions of time under the Act and under the rules in respect of the two decisions that affect the plaintiff’s sister and her daughter and the defendant also consents to those two decisions being set aside.

HER HONOUR: I will just make a note of that.

MS DE FERRARI: My learned friend, I think, has drafted proposed orders with which we are in agreement.

HER HONOUR: Very well. Thank you.

MS DE FERRARI: The effect of that will be that the special case would focus purely on the construction issue.

HER HONOUR: The first decision.

MS DE FERRARI: Yes, your Honour. Perhaps it is appropriate if my learned friend hands up the proposed orders.

HER HONOUR: Certainly. Thank you.

MR DONAGHUE: Your Honour, the order I am just handing up is marked as a draft order. If your Honour is content with it, I have one that is without the word “draft” on it that I can provide to the Court.

HER HONOUR: Certainly. Is it necessary to mention rule 25.07.2 to cover both the seeking of relief for certiorari and mandamus? This is in paragraph 1, Mr Donaghue. That is to say, should it be said – rules 25.06.1 and 25.07.2.

MR DONAGHUE: I had thought it was necessary only to deal with certiorari in the circumstances because the decisions are to be quashed, but what happens then will very much depend upon what happens in relation to the other questions because, as we apprehend the effect of these orders, the - - -

HER HONOUR: Yes. Sorry, I had not read on. Yes, I should read the lot.

MR DONAGHUE: As we see it, your Honour, there would not, at least immediately, be a reconsideration of the question of the visa application for these two applicants because if the primary applicant fails in this proceeding, it would necessarily follow that the secondary applicants would fail. If the primary applicant succeeds, then the delegate would need to reconsider all of these applicants and would need to - - -

HER HONOUR: Yes, because of the ground of refusal.

MR DONAGHUE: Because of the ground of refusal. It may be that one of the decisions that we are consenting to have quashed, that is the decision to separate the sister and her child, if I can describe them in that way, the delegate would need to consider whether they should be separately assessed or assessed as part of the group, but that is all a matter that would need to - - -

HER HONOUR: That really turns on the determination of the special case isolating the - - -

MR DONAGHUE: That is the threshold point because if the primary applicant is not eligible for the reason that the delegate said she was not eligible, then that would determine all of these matters.

HER HONOUR: Yes, very well. So those orders are to be made by consent?

MR DONAGHUE: Yes, your Honour.

HER HONOUR: Yes. What is to be done in relation to the summons for directions generally? Is that simply to be adjourned in order to allow for the preparation of the special case?

MR DONAGHUE: That is what we had in mind, your Honour. As the parties understand the position, the special case is agreed between the parties and it is then for the Court to decide whether to refer a matter, a question of law, to the Full Court. The parties had it in mind that – we have looked at the Court’s calendar and it seems that your Honour is back in Melbourne in the week following the public holiday on 13 June 2011. We would propose that we could submit an agreed special case in questions of law by the 10th and we are then in your Honour’s hands as to whether your Honour would like the parties to appear or, if your Honour is content with the special case, that the matter could simply be referred, but we would be content to appear before your Honour, if that were convenient to you, in the week of the 14th.

HER HONOUR: Yes. Will there be an issue about a need, perhaps, for leave to amend the application for the order to show cause so it now conform with the way the matter has progressed so that, I would imagine, there would be deletions of the relief sought in, for example, paragraphs 17 and 18 which went to the ancillary decisions?

MR DONAGHUE: Yes, indeed. My friend has indicated she would be happy to do that, yes.

HER HONOUR: Yes. It may be that I should adjourn the summons for directions to a date in that week with liberty to apply and costs reserved on the understanding that it may be that consent orders for a referral would be submitted, which would take into account matters like leave to amend the application to conform with the special case.

MR DONAGHUE: I understand, your Honour.

HER HONOUR: There would be, as you would understand, the need for the usual directions about filing submissions and authorities something like no later than 15 clear working days prior to the date of the hearing of the special case. That would be for the plaintiff. The respondent to do the same no later than something like seven clear working days prior to the date of the hearing of the special case. The date for reply could be left to the rules. So if a consent order which dealt with those matters were prepared a little prior to the return date, that would obviate the need for an appearance.

MR DONAGHUE: Thank you, your Honour. We will certainly attend to that and submit consent orders of that kind together with the agreed special case.

HER HONOUR: Very well.

MR DONAGHUE: We do not anticipate any problem agreeing the special case, but assuming that there is not, we will submit the agreed special case by the 10th.

HER HONOUR: In a way it is not essential, I suppose, but I will, when I make the orders adjourning the matter, reserve liberty to apply. So if there are any problems that you feel could be resolved before the return date, which would require some sort of mention, that occurred in the latter part of May, we would certainly be able to have some hearing.

MR DONAGHUE: Thank you, your Honour.

HER HONOUR: Very well. I will make orders by consent in the form of the draft order provided today and further adjourn the summons for further hearing till – perhaps I will make it Wednesday because of the public holiday – Wednesday, the 15th at 9.30.

MR DONAGHUE: Thank you, your Honour.

HER HONOUR: So I will adjourn the further hearing of the summons for directions till 9.30 on Wednesday, 15 June 2011. Reserve liberty to apply and costs reserved.

MR DONAGHUE: Thank you, your Honour.

MS DE FERRARI: Thank you, your Honour.

HER HONOUR: Nothing further?

MS DE FERRARI: Nothing further, your Honour.

HER HONOUR: Very well. Adjourn the Court.

AT 9.39 AM THE MATTER WAS ADJOURNED