Plaintiff M64/2015 v Minister for Immigration and Border Protection [2015] HCATrans 137 (3 June 2015)

Last Updated: 29 September 2015

Replacement Transcript

[2015] HCATrans 137

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M64 of 2015

B e t w e e n -

PLAINTIFF M64/2015

Plaintiff

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Defendant

Directions hearing

NETTLE J

TRANSCRIPT OF PROCEEDINGS

FROM MELBOURNE BY VIDEO LINK TO DARWIN

ON WEDNESDAY, 3 JUNE 2015, AT 9.44 AM

Copyright in the High Court of Australia

MR C.J. HORAN: May it please the Court, I appear with MS K.E. GRINBERG for the plaintiff. (instructed by Russell Kennedy Pty Ltd)

MR S.P. DONAGHUE, QC: May it please the Court, I appear with MR N.M. WOOD for the defendant. (instructed by Australian Government Solicitor)

MR HORAN: Your Honour, the parties are largely agreed as to the directions that should be made this morning.

HIS HONOUR: Before you start on that, Mr Horan, I saw the Commonwealth’s attitude in its document which it provided us with, thank you. I am not sure myself whether this matter could not be dealt with more efficaciously in the Federal Circuit Court. I appreciate there is a difficulty with the standing of the plaintiff to maintain an action in the Federal Circuit Court, but why could that not be overcome, as is suggested, by getting one of the true applicants substituted for the present plaintiff?

MR HORAN: Well, there would be difficulties in – I would have to seek instructions. At the moment I have no instructions directly from those applicants. I am instructed by the plaintiff. As a matter of practicality there are advantages in having the proposer as a plaintiff being someone who is present in the jurisdiction.

HIS HONOUR: No doubt he could convey the instructions, but I must say it would be preferable if the real applicant with the real interest in the matter were the plaintiff.

MR HORAN: Yes. Well, the proposer has an interest in the application and, but for the provision in the Migration Act which precludes him from having standing in the Circuit Court, he would be able to bring the proceeding in that court. A similar situation was faced in other cases such as Shahi and Tahiri where the matters did proceed in this Court on a special case before a Full Court.

The other consideration, your Honour, is that, in my submission, quite apart from the standing issues, the case does raise a question which has a potential wide application to many visa applicants and proposers who are similarly affected by the policy which has been adopted by the Department and by the Minister and in that sense the questions that are sought to be raised, which go to the validity of that policy, its consistency with the Act and the regulations and the manner in which it has been applied are questions of general importance which will affect a large number of other similarly placed people.

HIS HONOUR: Yes.

MR HORAN: For that reason it is a matter which does not involve a significant factual dispute or an area of significant factual compass. The special case would be quite confined and would examine whether or not the reasons for decision applying the policy were within power and consistent with the Act. That is a matter which - in my submission it is overall in the interests of the administration of justice for that to be determined in the first instance in this Court rather than work its way through on appeal. So, subject to your Honour’s views, I could seek further instructions about the manner in which the parties are presently constituted.

HIS HONOUR: Let me first ask Mr Donaghue whether he agrees it is a matter of general importance.

MR DONAGHUE: Certainly, your Honour, there are a very large number of visa applications that are affected by the way that the policy has been applied in respect of the applicable visa criteria, in the tens of thousands. So partly for that reason and partly because of the issue with the parties is the explanation for why we took the position that we did. We think your Honour cannot remit it – to remit it would, in effect, force the plaintiff to substitute if they wish to continue their case in the Federal Circuit Court. We did not seek to have your Honour do that because we can see that there is a level of public importance associated with the case.

HIS HONOUR: Very well. Thank you, Mr Donaghue. What do you propose then by way of timetable, Mr Horan?

MR HORAN: If I could hand up a short minute which is based upon the orders sought in the summons and in the outline of submissions but modified slightly in light of some points raised by the defendants. In effect, in terms of timetable it is proposed that the parties confer upon the special case and then the matter be brought back for directions in approximately three weeks’ time.

HIS HONOUR: Do we not want some pleadings as well?

MR HORAN: The pleadings are already contained in the application to show cause.

HIS HONOUR: Yes.

MR HORAN: There has not been a statement of claim but the application for an order to show cause has been set out with sufficient particulars to form the basis of a special case with the appropriate documents annexed

and then suitable questions of law formulated going to the grounds of review raised in the application.

HIS HONOUR: Do you think you will have the special case ready by, say, 24 June or a bit before?

MR HORAN: I am reasonably confident. On our part we will aim to provide a draft to the defendant within seven days and at the latest by Friday of next week. I think it is likely that, given the nature of the facts raised by this case, that a special case will be able to be settled before 24 June.

HIS HONOUR: There is no pressing urgency about this matter, is there?

MR HORAN: No.

HIS HONOUR: Apart from the 10,000 or so people that are affected now?

MR HORAN: There is no particular urgency about the application.

HIS HONOUR: Very well. Thank you, Mr Horan. Are you content with those proposed orders, Mr Donaghue?

MR DONAGHUE: Yes, your Honour, we are. I think that Mr Horan is right in saying that it is likely that a special case will be able to be agreed. Obviously we cannot guarantee that and so there is a possibility that if, when we come back on the 24th, there has been a problem that we might then need to make other submissions to your Honour about how the matter should proceed. But, for the moment, we think that is a sensible way to proceed.

HIS HONOUR: Very well, thank you. I order:

1. Pursuant to section 486A(2) of the Migration Act 1958 (Cth) the period within which an application may be made for a remedy to be granted in relation to a decision made by a delegate of the defendant on 16 September 2014 is extended to 8 May 2015.
   
2. Pursuant to rule 4.02 of the High Court Rules 2004 (Cth) the time fixed by rule 25.06.1 be enlarged in respect of this application for an order to show cause why a writ of certiorari should not issue to quash the decision made by a delegate of the defendant on 16 September 2014.
   
3. Adjourn the further hearing of the summons for directions until 24 June 2015 at 9.30 or so soon thereafter as it can be heard.
   
4. Costs be reserved.
   

I shall request, not as part of the order, that if at all possible the draft proposed special case be filed by, say, no later than 17 June, subject of course to the difficulties which I appreciate you may experience in reaching agreement. Is there anything further required? Thank you very much, gentlemen and ladies. Adjourn sine die.

AT 9.53 AM THE MATTER WAS ADJOURNED