Singh v Minister for Immigration and Citizenship [2013] HCATrans 147 (12 June 2013)

Last Updated: 13 June 2013

[2013] HCATrans 147

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M42 of 2013

B e t w e e n -

MANJINDER SINGH

Plaintiff

and

MINISTER FOR IMMIGRATION AND CITIZENSHIP

Defendant

Directions hearing

HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON WEDNESDAY, 12 JUNE 2013, AT 9.29 AM

Copyright in the High Court of Australia

MS G.A. COSTELLO: If it please the Court, I appear for the applicant. (instructed by Vernon Da Gama & Associates)

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

HIS HONOUR: Yes. Ms Costello, I have, of course, read the originating process and your outline of submissions and I see that there has been a request for the issue of a subpoena. It may perhaps be of assistance if I hear first from Mr Knowles about what course he says this matter should take and then come back and hear from you.

MS COSTELLO: As the Court pleases. May I just state briefly that I do not seek an order for the subpoena to be issued. Your Honour, it is, in my submission, premature and it would be appropriate for the parties to deal between themselves about exchanging relevant documents in this matter.

HIS HONOUR: Yes.

MS COSTELLO: If it be appropriate, perhaps the subpoena could be withdrawn.

HIS HONOUR: Well, it can simply remain with the papers until a Justice gives a note for its issue. It simply sits there not doing much, but that may be the simplest way forward on that aspect. But do I understand your position to be that, first, this matter cannot be remitted; second, it ought to end up somehow in a Full Court? If that is right – and as I say, I will have to hear Mr Knowles about this – I would be minded to put it into a Full Court only once. It is plain that there remains no factual dispute between the parties. If there are going to be factual disputes, at least as at present advised, it seems to me to be inadvisable to put it into a Full Court for trial before a Bench of whether it is three or five.

MS COSTELLO: Your Honour, if I may answer your question?

HIS HONOUR: Yes.

MS COSTELLO: I submit it is not able to be remitted, so, yes.

HIS HONOUR: Yes.

MS COSTELLO: Secondly – and there has been quite some progress between my learned friend and I, we have some proposed orders for you – but in relation to the practical matters and convenience of this matter, being one that does involve evidence, it is appropriate, in my submission, that a single Justice hears the matter at this stage. It may be necessary later to refer it to a Full Court, but at this stage the proposed order would be that it is heard by a single Justice of the Court.

HIS HONOUR: Well, what issue would I be trying, or a single Justice be trying? If there has to be a trial, there has to be a trial, I understand that, but much as I would enjoy running a trial again I am not sure that that is perhaps the most efficient use of my time if the facts of the matter can be determined between the parties without the joys of a trial.

MS COSTELLO: Your Honour, we are mindful that it would be inconvenient for the Court to hear evidence in this matter, and in that regard the proposed orders contemplate that the proceeding be listed for a further directions hearing once materials have been exchanged and outlines have been exchanged. It may be possible down the track to agree a statement of facts, for example, but we are not at the stage where we could say if that is possible or not.

HIS HONOUR: Could I say this to you, Ms Costello, in as blunt terms as I may? The last thing I want to end up with is a succession of directions hearings. Every time the parties come back somebody ends up paying. That is undesirable, so I would like this to go forward, as far as possible, between the parties without, as it were, regular and repeated judicial supervision, but I understand there are times when that is a necessary step. Let us see where we get to.

MS COSTELLO: Your Honour, may I hand up the orders that are proposed by consent for your consideration?

HIS HONOUR: Yes. We are up to the middle of June, why should we wait until September before your side completes its affidavit material, Ms Costello?

MS COSTELLO: Your Honour, there are two reasons. One is that I anticipate a sensible course of exchanging information between the parties, preferably without the need to issue subpoenas, and so that can take place before affidavits are filed so that we do not need to keep going back for another bite of the cherry in relation to evidence.

HIS HONOUR: That might occupy, at most, 10 days or two weeks, I would have thought.

MS COSTELLO: The second reason is that my instructing solicitor who has carriage of the matter will be unavailable, he will be away for the month of August, and so either the plaintiff’s further affidavit material can be filed in late July, or in July, or in September, but not in August, your Honour.

HIS HONOUR: Well, I am not minded to see it go over for as long as this. Has your side yet formulated a definitive request for information from the Minister - information and documents from the Minister?

MS COSTELLO: There is a list of documents contained in the subpoena which is specific, and that is all - - -

HIS HONOUR: I understand that. Ms Costello, what I need - - -

MS COSTELLO: - - - so the answer is, no.

HIS HONOUR: No, just a moment. What I need to know is have you yet got to the point where you have a definitive list of the information and documents you want? The answer is either yes or no, I would have thought.

MS COSTELLO: Yes, your Honour, it is the list in the subpoena.

HIS HONOUR: Because then the ball moves majestically over the net into the Minister’s court and it is a question of how soon the Minister can produce those documents.

MS COSTELLO: To be fair to the Minister - - -

HIS HONOUR: No, that is not your job, Ms Costello; it is mine.

MS COSTELLO: No, the request has not been made to the Minister.

HIS HONOUR: Yes. The bottom line I am putting to you, Ms Costello, is let us get on with it.

MS COSTELLO: I understand, your Honour.

HIS HONOUR: That means your side has to determine what it wants, it has to convey that to the Minister, the Minister has to have an opportunity to respond and consider his position - I understand that - but that should not take all of the balance of this month and July and August, even recognising, as I do, that your solicitor will be absent during August. Let me hear what Mr Knowles has to say, Ms Costello. Mr Knowles, you have seen the draft subpoena, have you, or not?

MR KNOWLES: I have recently seen the draft subpoena, yes.

HIS HONOUR: Yes. Do you anticipate any difficulty about production of any of these documents, or are you not in a position yet to say?

MR KNOWLES: I will need to seek instructions about all of the categories, but some of them I anticipate no difficulty at all. Some of them are just about whether or not emails were sent by the Department to the plaintiff on particular dates and there would be no difficulty that I can anticipate in respect of those documents. Otherwise, though, there are documents such as that listed in paragraph 5 which are described as:

All documents relating to the finding that S and S Migration lodged applications to the Department containing false and misleading information –

Now, that might be the subject of some difficulties, I anticipate, but at this stage I would need to seek some instructions about that, so I cannot be clear about it.

HIS HONOUR: Am I understanding the position properly though if I say that Mr Singh was refused a visa on grounds that at least included the ground of provision of false information, that Mr Singh’s case is that the person who purported to act as his migration agent neither was a migration agent nor was truthful with him nor, it would seem, with the Department?

MR KNOWLES: That is right, your Honour.

HIS HONOUR: That is the essence of the case?

MR KNOWLES: That is correct.

HIS HONOUR: There is this legal question then about what use can be made of documents seized under warrant for the purposes of the exercise of power under the Migration Act.

MR KNOWLES: Yes, your Honour.

HIS HONOUR: May I assume – and if I may not you should say that this is a matter which cannot yet be determined – but may I assume that the Minister’s position will be that the purported migration agent (a) was not a migration agent and, (b) engaged in misleading conduct whether in respect of this matter or in respect of others?

MR KNOWLES: I have sought instructions about this, your Honour, and the instructions are still forthcoming, but even if your Honour were to make that assumption there remains issues about the nature and extent of any knowledge, if there is any knowledge, of the migration agent’s conduct by the plaintiff himself, so that question does arise as things stand on the present material before the Court.

HIS HONOUR: Yes. What do you say I should do in the matter? I am not minded to make directions that will take us out to November.

MR KNOWLES: Well, I did hear my learned friend indicate that there might be the possibility for her client’s part to provide affidavit material by the end of July this year.

HIS HONOUR: No, step one is her side is going to make a request of the Minister.

MR KNOWLES: Yes.

HIS HONOUR: How long reasonably will the Minister need to respond to a request of the kind that we can now reasonably anticipate?

MR KNOWLES: I will seek some instructions in a moment, your Honour. The only difficulty is one of the categories of documents that appears to be the subject of a request is relatively broad and I am not altogether clear about what is contained within it and how long it will take to deal with that request, but can I just seek some instructions, your Honour?

HIS HONOUR: Yes, of course.

MR KNOWLES: In terms of a response, your Honour, I expect that it would be possible to provide a response within a period of two weeks from the date of getting the request.

HIS HONOUR: Yes.

MR KNOWLES: As to providing documents though, while it may be possible to do that within two weeks for some categories – and I have indicated some of them are relatively straightforward – I do not expect that it would be possible in respect of all of the categories, and I should foreshadow that there would be a need to go through documents to assess whether or not any issues arising in respect of the documents might raise a claim of public interest immunity or some such other claim.

There may also, your Honour, I will add, be a need to consider the issue that is raised by the second ground in this case and how that might affect any provision of information if it is found to have been – and I do not have instructions about this one way or the other – but if it is found that the information has been obtained from material which was the subject of a search warrant, if there was one. So that is another issue that will need to be considered and addressed by my client before any response is made.

HIS HONOUR: I can understand that it is a matter that would need to be considered, but either the Minister’s delegate has had resort to search warrant material or not, either that is lawful or it is not. It would be unfortunate if we were left in a state of uncertainty about whether resort had been had to search warrant material and if we were left in a state of uncertainty about whether the Minister contended that that was lawful or unlawful.

MR KNOWLES: I accept that, your Honour.

HIS HONOUR: Yes.

MR KNOWLES: I agree that that is an issue that has to be addressed, given the nature of the ground advanced by the plaintiff in the application.

HIS HONOUR: That issue may, it may not, be separate from whether the plaintiff was a knowing party to the supply of untrue information.

MR KNOWLES: Yes, I accept that, your Honour. It is possible that that issue is capable of consideration - - -

HIS HONOUR: Discrete treatment.

MR KNOWLES: - - - separate to determination of the factual issue that arises in respect of the first ground.

HIS HONOUR: My present inclination is to bring this matter back on Wednesday, 17 July, which is effectively five weeks away, with a view to the plaintiff making such requests for information or documents as the plaintiff may be advised, and with a view to understanding better on that day two things: one, whether there can or should be a discrete determination of what might loosely be called the search warrant questions and, second, with a view to determining whether there must be a trial of an issue whether the plaintiff was a knowing participant in the provision of false information.

If there is to be a trial of an issue of the latter kind it would be necessary for counsel on both sides to give close attention to how that question of fraud and deceit should be tried. At the least it would be unusual, I think, for an allegation of fraud or deceit to be tried principally on affidavit, but as to that I hold no view now, I express no view now, and those are matters to which counsel will need to give careful attention in the intervening time.

If I were to bring the matter back on 17 July, Mr Knowles, is there any direction which you say I should give to either party about the steps that

they are to take in the meantime or have I sufficiently indicated the steps that I would presently expect might be taken and in the light of which it would be expected that a very short order timetable would thereafter be set?

MR KNOWLES: Your Honour, in my submission, given the indication that has been given by the Court, it is not necessary for an order to be made as to steps in the intervening period. The only order that is strictly required is that the matter return before the Court on 17 July this year. The tasks that need to be undertaken in the meantime have been made clear to us by your Honour, in my submission, and so no further order would be necessary.

As to the steps after that, the Minister’s position is that after this intervening period there would be an ability on the part of at least the Minister to progress through procedural steps leading up to any trial, whether it be a trial as to the factual issue or whether it be a trial in respect of a discrete determination of the search warrant question. Those steps could be undertaken relatively quickly, in my submission, your Honour.

HIS HONOUR: One other matter I should mention. I assume, perhaps unthinkingly, that questions of extension of time which I think arise in this matter - - -

MR KNOWLES: They do, your Honour.

HIS HONOUR: - - - would likely also be affected, perhaps determined by conclusions reached about presence or absence of fraud and responsibility for any fraud or deceit that has occurred.

MR KNOWLES: Yes, your Honour. I should indicate for the record that as matters stand my client does not presently consent to the making of an order extending time, but I do indicate that, as your Honour puts it, much would depend upon what happens down the track in respect of perhaps more substantial issues.

HIS HONOUR: My impression, as I say, perhaps unthinking impression, is that the questions of extension would tend to follow the determination of what might be termed the substantive debates between the parties.

MR KNOWLES: Yes, your Honour. Obviously, that is one, and one very important consideration. There would still need to be some consideration given to the length of any delay, for instance, and the explanation for that delay, but I hear what your Honour says in respect of the relevance of the merits of the underlying substantive proceeding.

HIS HONOUR: Yes. Thank you, Mr Knowles. Ms Costello, you have heard what I have said. I am presently not minded to give you any direction at all, simply to adjourn the matter over, but let there be no doubt about it, the expectation is that your side will complete such inquiries of the Minister as soon as reasonably practicable. If those inquiries of the Minister hit a hurdle, liberty to apply will be reserved and it is expected that that liberty will be exercised. I do not expect that come an adjourned day there then be entertained some complaint that, well, things have not progressed as fast as we had expected they would.

The second thing that I would want there to be no doubt of is that come 17 July I would expect to be giving directions about the further conduct of the matter, which will likely be very abbreviated; they will not be directions that provide very long periods in which to take steps, so that the preparation of draft affidavits and the like must proceed in this intervening time. They will not be directed to be filed, but the work has to go ahead so that come 17 July I can, if needs be, give short order directions. Is there anything that you would wish to add or say about what I have said?

MS COSTELLO: No, your Honour.

HIS HONOUR: I will adjourn the proceeding for further directions to Wednesday, 17 July 2013 at 9.30 am in Melbourne or such other time as may be notified to the parties. I reserve liberty to apply to either side on 48 hours written notice. The costs of today should be costs in the proceeding. Do counsel seek to be heard about the form of those orders?

MS COSTELLO: No, your Honour.

MR KNOWLES: No, your Honour.

HIS HONOUR: Very well, adjourn the Court.

AT 9.59 AM THE MATTER WAS ADJOURNED