SZTDQ v Minister for Immigration and Border Protection and Ors [2014] HCATrans 272 (2 December 2014)

Last Updated: 9 December 2014

[2014] HCATrans 272

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S297 of 2014

B e t w e e n -

SZTDQ

Plaintiff

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Defendant

REFUGEE REVIEW TRIBUNAL

Second Defendant

FEDERAL COURT OF AUSTRALIA

Third Defendant

Summons

BELL J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO SYDNEY

ON TUESDAY, 2 DECEMBER 2014, AT 4.39 PM

Copyright in the High Court of Australia

____________________

MR S.E.J. PRINCE: If the Court pleases, your Honour, I appear with my learned friend, MR P.W. BODISCO, for the plaintiff. (instructed by the plaintiff)

MR A. MARKUS: May it please the Court, I appear for the first defendant, Minister. (instructed by Australian Government Solicitor)

HER HONOUR: Yes, Mr Prince.

MR PRINCE: Yes, thank you, your Honour. I should say at the outset that there are two errors in the forms. First, in the application for an order to show cause, the Federal Court of Australia is named as a third defendant and that is an error. That should not be on the form. Would your Honour strike that?

HER HONOUR: Yes, I will.

MR PRINCE: Then on the affidavit of Ian Rintoul, the Federal Circuit Court of Australia is also erroneously named as the third defendant. Would your Honour strike that as well?

HER HONOUR: Yes.

MR PRINCE: Your Honour, there have been some developments since the matter was listed by the Court at short notice and urgently, for which my client is grateful. I am told that – I will let Mr Markus tell the Court what his client’s position is and that may reduce the amount of time that I need to trouble your Honour for.

HER HONOUR: Very well. Yes, Mr Markus.

MR MARKUS: Yes, thank you, your Honour. As your Honour would appreciate me and my client had limited opportunities to consider this matter but your Honour would have noted that the application seeks to raise an issue in relation to paragraph 45 of the Tribunal’s decision, which is annexed to the affidavit of Mr Rintoul, and seeks to do so in particular by reference to a judgment of his Honour Justice North in WZAPN v Minister for Immigration and Border Protection.

Your Honour, it does appear to be the case that that issue arises - just looking at paragraph 45 of the Tribunal’s decision and that, in turn, raises the question of the correctness of WZAPN. Your Honour, that judgment is presently on special leave to appeal to this Court and also there is another matter before the Federal Court in which the Full Court of that court is likely to have a hearing sometime in February. In any event, to cut matters short, your Honour, I am instructed that the proposed removal for tomorrow is being vacated or cancelled.

There are no immediate plans for removal as I understand it but because of the shortness of time I have not been able to obtain clear instructions but I discussed the matter with my friend and I think we can say this. I personally think it unlikely that there would be any attempts to remove the plaintiff before at least the hearing of the matter listed before the Full Federal Court in February but I will be in contact with my friend to seek to give him some more confident – my personal views about this. But I do not think we need to trouble the Court with that any further.

HER HONOUR: Thank you for that, Mr Markus. What is proposed that I do today - stand the matter over for a period so that you can put your documents in proper form, Mr Prince?

MR PRINCE: Subject to those amendments that I indicated to your Honour, which we can attend to in the Registry to give effect to your Honour striking it out, the documents are – I would not want to amend them or make any changes to them at this stage because my friend is clearly apprised of the issue.

HER HONOUR: Yes.

MR PRINCE: Perhaps, though, if it could be stood over to allow my friend and I to have some discussions about a mechanism for notice to the applicant if he is going to be removed, so that the Court can be approached if it needs to – there is no point seeking an injunction from your Honour in circumstances where there is no threat of removal.

HER HONOUR: Yes, well that seems reasonable, Mr Prince. Your summons for directions purely seeks injunctive relief. You do not press that relief, so - - -

MR PRINCE: At this stage, that is right, your Honour.

HER HONOUR: Do you seek any order from me today, then?

MR PRINCE: No your Honour. Only to just – if your Honour were just to stand the matter over with liberty to apply on short notice, and then if

Mr Markus and I encounter any difficulties in putting a proper regime in place, then we can seek to relist the matter to come back to deal with whatever situation might have arisen.

HER HONOUR: So if I would - - -

MR PRINCE: If that would be convenient, your Honour.

HER HONOUR: Indeed. If I were to stand it over generally, with liberty to apply on 24 hours’ notice, would that suffice for your purposes?

MR PRINCE: Yes, I think that would be right, your Honour. The reality is if it is more urgent than that I am sure that the Registry is able to accommodate us, as they have today.

HER HONOUR: Yes. Mr Markus, are you happy with an order in those terms?

MR MARKUS: Yes, your Honour.

HER HONOUR: Very well. The order that I make is that I stand the proceeding over generally with liberty to apply on 24 hours’ notice. Thank you both for your assistance. The Court will adjourn.

AT 4.45 PM THE MATTER WAS ADJOURNED