Plaintiff B60 of 2012 v Minister for Foreign Affairs & Anor [2012] HCATrans 305 (23 November 2012)

Last Updated: 29 November 2012

[2012] HCATrans 305

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B60 of 2012

B e t w e e n -

PLAINTIFF B60 OF 2012

Plaintiff

and

MINISTER FOR FOREIGN AFFAIRS

First Defendant

MINISTER FOR IMMIGRATION AND CITIZENSHIP

Second Defendant

Directions hearing

KIEFEL J

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO LINK TO MELBOURNE

ON FRIDAY, 23 NOVEMBER 2012, AT 10.16 AM

Copyright in the High Court of Australia

MR D.P. O’GORMAN, SC: If the Court pleases, I appear with my learned friends, MR M.O. PLUNKETT and MR R.P. BRIDGMAN, for the plaintiff. (instructed by Howden Saggers Lawyers)

MR S.P. DONAGHUE, SC: May it please the Court, I appear on behalf of both defendants. (instructed by Australian Government Solicitor)

HER HONOUR: I think the first matter, Mr O’Gorman, is to make some orders for non-publication of identity, which seem uncontroversial.

MR O’GORMAN: Yes, your Honour.

HER HONOUR: Yes.

MR O’GORMAN: Just by way of background could I, in one minute, summarise what the case is about?

HER HONOUR: Yes.

MR O’GORMAN: The plaintiff is a 24-year-old Iranian woman who was awarded a PhD scholarship, partly funded by the Australian Government, to study for the degree of Doctor of Philosophy here at University of Queensland. She applied for a student visa. That was rejected on the basis that – and I quote – “she is a person whose presence in Australia may be directly or indirectly associated with the proliferation of weapons of mass destruction”. We say she has never been advised of any facts adverse to her and was not asked at any time to provide information in addition to that in her application.

HER HONOUR: Thank you. I have read the outline of submissions and the materials and I take it that the applications to this Court are based upon alleged denials of procedural fairness. That is really the issue for the Court. There appear to be three matters to be dealt with at this directions hearing today. The first is to make an order for the non-publication of the plaintiff’s identity, which I should do immediately.

MR O’GORMAN: Thank you, your Honour.

HER HONOUR: There being no dispute about it I will order that until further order of the Court the name and address of the plaintiff not be published in any report of this proceeding and that in any reference to this proceeding the plaintiff be referred to as “Plaintiff B60 of 2012”. The next matter is an application for extension of time and the third matter is a question of whether there should be remitter.

MR O’GORMAN: Your Honour, with the application for extension of time, if that is convenient, your Honour, to be dealt with next.

HER HONOUR: Yes, we will deal with it now.

MR O’GORMAN: Could I hand up our outline in that regard?

HER HONOUR: Has this been provided to Mr Donaghue?

MR O’GORMAN: It has.

HER HONOUR: I have read the affidavit material upon which you rely, Mr O’Gorman.

MR O’GORMAN: Your Honour, there is just one matter in the affidavit material that out of an abundance of caution I should address. In the last paragraph of Mark Howden’s affidavit reference is made to senior counsel who appears today being briefed in August of this year. That was another person. I have an affidavit to that effect if your Honour needs - - -

HER HONOUR: I gathered there had been a change recently.

MR O’GORMAN: Yes, thank you, your Honour.

HER HONOUR: Yes, Mr O’Gorman. I should say that I am not really sure why we need to refer to rule 25.06.1. The matter really turns upon section 486A of the Migration Act, does it not?

MR O’GORMAN: It does, your Honour.

HER HONOUR: So you would just have to establish that it was necessary in the interests of the administration of justice to make an order.

MR O’GORMAN: Yes, your Honour.

HER HONOUR: Here the length of time is the most obvious factor that has to be addressed.

MR O’GORMAN: It is, your Honour, and in that regard - - -

HER HONOUR: It is about two years, is it not? It is over two years?

MR O’GORMAN: At paragraph 5(vii) reference is made to pursuing alternative remedies. Could I also draw to your Honour’s attention the affidavit of the plaintiff at paragraph 29 - so that elaborates even further upon the alternative remedies that she had been pursuing. Your Honour, in

The Commonwealth; Ex parte Marks [2000] HCA 67; (2000) 75 ALJR 470 Justice McHugh at paragraph [15] referred to it being:

necessary to have regard to the history of the matter, the conduct of both parties, the nature of the litigation and the consequences for the parties of a grant or refusal of the extension.

On that last point, if I could also take your Honour to the affidavit of the plaintiff, and in particular paragraphs 33 to 37 where she deals with the difficulty she anticipates obtaining employment in other countries as a result of this adverse finding made in relation to this visa. She speaks there about having recently contemplated getting a visa for the United Kingdom and she annexes to her affidavit the visa application that indicates that she must disclose what has happened in this case and in paragraph 37 she indicates that she understands that other countries have similar disclosure requirements including, for example, Japan. So it is a matter of great consequence for this young lady that this adverse finding has been made.

So that, in our submission, is particularly important when looking at this question of the extension of time. We would submit that that, along with the fact that she has not been sitting on her hands for that two-year period, but rather has been pursuing alternative remedies as outlined in the submissions and in her affidavit and she explains why she did that in the hope of trying to avoid this litigation.

HER HONOUR: Thank you. Mr Donaghue, I think the position for the defendants is that you neither consent nor oppose an order for extension of time.

MR DONAGHUE: That is correct, your Honour. If the plaintiff can explain to your Honour that the subsection (2) criterion in 486A is satisfied, then we are in the Court’s hands as to the extension. The only matter I would note is that insofar as reliance is placed on language difficulties in communicating with the plaintiff that seems a little difficult to sustain on the material because there are ample examples of email communications involving the plaintiff in that material in which she communicates with very good English with her prospective supervisor, for example, on page 105, but other than pointing that out I do not seek to make any submissions - - -

HER HONOUR: Yes, thank you, Mr Donaghue. I am of the opinion that the interests of justice require the making of an order for an extension of time. I accept that a reasonable explanation has been given for what is a substantial delay in the bringing of the application. I bear in mind, in particular, the unusual nature of this matter, given that it is based upon a decision in relation to which information is not readily available to the

plaintiff. This has necessitated her pursuit by other means to obtain such information.

The plaintiff has attempted to seek alternative means of redress. I accept that there may have been delays by reason of her presence in Iran and communications to her being rather more difficult. I take into account the importance of this matter to her and the effects it will have upon her ability to obtain visas for other countries and I have taken into account the fact that there is no prejudice likely to be suffered by the defendants by the making of an order of this kind.

I therefore order that the times fixed by section 486A(1) of the Migration Act 1958 (Cth) as the time within which the plaintiff may apply for the relief sought in her application are extended to the date of hearing of this application.

Then there is just the question of remitter. Now, Mr O’Gorman, I was not entirely sure what your position was in relation to that, except perhaps the implication that you rather hopefully sought a hearing in this Court.

MR O’GORMAN: Exactly, your Honour. But, in making the submission that it should be dealt with in this Court I do acknowledge that such an approach would be unusual, but we are confronted with rather unusual circumstances here. From what we now understand from the defendant, we are going to be looking at somewhat complex issues of public interest immunity in this context of rather what one could easily envisage to be sensitive documentation.

HER HONOUR: The proposal by the defendants is that if it were to be remitted to the Federal Magistrates Court an application would be made to transfer it to the Federal Court.

MR O’GORMAN: The difficulty with that, though – sorry, your Honour.

HER HONOUR: Just in relation to dealings with questions of public interest immunity I do not understand why a judge of the Federal Court could not deal with such matters.

MR O’GORMAN: Your Honour, the difficulty there is that there is no guarantee that any such application would be successful, even though the defendant has indicated that they would either make the application or support such an application.

HER HONOUR: I see, but even so, why would not a federal magistrate be able to determine public interest immunity? The difficulty for you,

Mr O’Gorman, is that these will be questions determined very much by reference to the material. The matter will require someone to spend quite a bit of time reviewing what I imagine would be extensive material and to hear extensive argument about whether resort should be had to that material and whether access to it should be limited. These are first instance matters really.

MR O’GORMAN: With respect, your Honour, I could not submit otherwise other than to say it is also quite likely that the documentation to be considered will be of very short compass in that - - -

HER HONOUR: I suppose you have to say that; one of your grounds is that there is no evidence.

MR O’GORMAN: Your Honour, I cannot put it any higher than that.

HER HONOUR: Yes. We are both in the dark about the extent of the material, but there will obviously be argument about the secrecy of the material which will require, one would think, the Court to have regard to it, make a ruling upon it and then determine questions of procedural fairness in light of it. Yes.

One of the matters raised in the defendants’ submissions is that it may be more appropriate for a court such as the Federal Court, or I suppose even the Federal Magistrates Court, to address the sort of issues that would have to be made at first instance such as security clearances for court staff and the like. I do not suppose there is any reason why this Court cannot do the same thing, but normally we are not involved in those sorts of processes.

MR O’GORMAN: No, your Honour. That is not something I can really assist your Honour with.

HER HONOUR: Processes which may involve questions of review, but I suppose that is – it is not obvious that questions like that will arise.

MR O’GORMAN: One would readily imagine that this Court has dealt with such issues in the past.

HER HONOUR: Not often. Yes, thank you, Mr O’Gorman. Mr Donaghue, could you just outline to me the procedure by which the transfer from the Federal Magistrates Court to the Federal Court is said to be open? I have not looked into that matter myself.

MR DONAGHUE: There is provision in the Federal Magistrates Act in section 39 of that Act for the court to order the proceeding in that court be

transferred to the Federal Court. Then, in section 476A of the Migration Act, which is the provision that sets out the jurisdiction of the Federal Court in relation to migration decisions, one category where the Federal Court is given jurisdiction is where an order is made pursuant to section 39 to transfer it across. So it is a procedure that has been followed in other matters in which I have been involved in this Court where the matter has been remitted down and then transferred back up to the Federal Court for trial.

HER HONOUR: I see. Thank you. I have read your written submissions about the question of remitter. Is there anything you wish to add to it?

MR DONAGHUE: I do not think I need add to it, your Honour.

HER HONOUR: Thank you. I propose to make orders for remitter in these terms:

1. The matter be remitted to the Federal Magistrates Court of Australia, Queensland Registry.
   
2. The proceeding continue in the Federal Magistrates Court as if steps already taken in the proceeding in this Court had been taken in that court.
   
3. The Registrar of this Court forward to the proper officer of the Federal Magistrates Court photocopies of all documents filed in this Court.
   
4. The costs of the proceeding to date are to be according to the scale applicable to proceedings in this Court and thereafter according to the scale applicable to the Federal Magistrates Court and in the discretion of the Federal Magistrates Court.
   

Nothing said in those orders will, of course, prevent an order for transfer being made to the Federal Court if it is thought appropriate by the appropriate court. I think it only remains then to order that the costs of today be reserved.

MR O’GORMAN: Yes, your Honour.

HER HONOUR: Is there anything further, Mr Donaghue?

MR DONAGHUE: No, your Honour, thank you.

HER HONOUR: Mr O’Gorman?

MR O’GORMAN: No. Thank you, your Honour.

HER HONOUR: Thank you.

AT 10.35 AM THE MATTER WAS CONCLUDED