Wei v Minister for Immigration and Border Protection [2015] HCATrans 103 (11 May 2015)

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Wei v Minister for Immigration and Border Protection [2015] HCATrans 103 (11 May 2015)

Last Updated: 11 May 2015

[2015] HCATrans 103

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S9 of 2015

B e t w e e n -

WEI WEI

Plaintiff

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Defendant

Directions hearing

GAGELER J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO SYDNEY

ON MONDAY, 11 MAY 2015, AT 1.59 PM

Copyright in the High Court of Australia

MR L.J. KARP: May it please your Honour, I appear for the plaintiff. (instructed by Lawside Lawyers)

MS R.S. FRANCOIS: If it please the Court, I appear for the Minister. (instructed by Australian Government Solicitor)

HIS HONOUR: Yes, Mr Karp.

MR KARP: Your Honour, on the last occasion orders were made for the filing of an agreed statement of facts. That has not been done because the parties have not been able to reach final agreement on what should be included. I think it is fair to say that we agree on most facts. However, the Minister says that certain facts are highly relevant. I say they are irrelevant. Now, in those circumstances Ms Francois has proposed further orders, but I think she wishes to make a submission before those are to put to you. That is about informing Macquarie University about the proceedings because allegations have been made that they acted unlawfully and that they should be given an opportunity to at least make submissions to possibly be included in the proceedings. I am sorry, I have misunderstood.

HIS HONOUR: Mr Karp, we will let Ms Francois speak in a moment. What do you say should occur?

MR KARP: I am happy with the orders which Ms Francois proposes which have been emailed through to you and they are that the parties file and serve further affidavits by a particular date, that there is an agreed statement of facts by another date and that the matter be listed for further directions. I do not know if your Honour has the order which is proposed - - -

HIS HONOUR: Yes, I have that, and what dates do you suggest?

MR KARP: Largely in your Honour’s hands.

HIS HONOUR: You are the one who needs to file and serve the further affidavit evidence. You might tell me how long you want.

MR KARP: Three weeks, your Honour.

HIS HONOUR: Tell me the precise date to put in order 1.

MR KARP: 1 June.

HIS HONOUR: And order 2?

MR KARP: 8 June.

HIS HONOUR: Very well. I do not think I need to know anything further about the area of dispute about the facts for the moment. Perhaps we can hear from Ms Francois.

MR KARP: Thank you, your Honour.

HIS HONOUR: Yes.

MS FRANCOIS: Your Honour, after receipt of the subpoenaed material it became apparent that the University made a deliberate decision not to issue a confirmation of enrolment during the period of time that is relevant in these proceedings. There are some inferences that might be able to be drawn from some of that material, but some of it is unclear. What the Minister wishes to do is to inform the University of the allegation that is being put of its behaviour being unlawful and to invite it to put whatever material it wants for the Minister to file, which the Minister would then do so, so that it has a form of being heard when it is not a party to the proceeding, at least insofar as it can put forward what evidence it would want to assist the Court in determining whether or not its behaviour was unlawful.

From the Minister’s perspective, whether or not the behaviour was unlawful, we say the plaintiff still will not succeed, but we took the view that given that we did not think it was appropriate on the material to make that concession that Macquarie University ought be given an opportunity to put on some material that might assist the Court understand why it took the course it did.

HIS HONOUR: You do not need any direction or order from me to approach Macquarie University for assistance in the preparation of what is your case in these proceedings.

MS FRANCOIS: That is right, your Honour. Order 1 in the proposed orders gives room for that to occur.

HIS HONOUR: Very well. You are just informing me of what you propose will occur before 1 June.

MS FRANCOIS: Yes, and so that your Honour could understand why the matter was not as simple as when we first had this factual disagreement before your Honour and we thought it would just be fixed by the subpoena. It is now somewhat more complex in terms of why the University did what it did.

HIS HONOUR: All right, Ms Francois. This proposed form of order comes from you. Are you content with the first two dates as suggested by Mr Karp?

MS FRANCOIS: Yes, your Honour.

HIS HONOUR: Very well. Would the morning of 15 June be suitable for the matter to come back before me for directions?

MR KARP: Yes, your Honour.

HIS HONOUR: I will make it 10.30 am on 15 June. The orders I make are as follows:

1. The parties are to file and serve any further affidavit evidence by 1 June 2015.
   
2. The parties are to file and serve an agreed statement of facts by 8 June 2015.
   
3. The matter is listed for further directions before me at 10.30 am on 15 June 2015.
   
4. The costs of today’s directions hearing are costs in the cause.
   

Those are the orders I make. The Court will now adjourn.

AT 2.06 PM THE MATTER WAS ADJOURNED