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High Court of Australia Transcripts |
Last Updated: 27 November 2015
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Sydney No S231 of 2015
B e t w e e n -
PLAINTIFF S231/2015
Plaintiff
and
MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Defendant
ZACHARIAH CASLAKE IN HIS CAPACITY AS A DELEGATE OF THE FIRST DEFENDANT
Second Defendant
ADMINISTRATIVE APPEALS TRIBUNAL
Third Defendant
GAGELER J
TRANSCRIPT OF PROCEEDINGS
AT SYDNEY ON THURSDAY, 26 NOVEMBER 2015, AT 10.08 AM
Copyright in the High Court of Australia
MR B. MOSTAFA: Your Honour, I appear for the plaintiff. (instructed by Fragomen)
MS A.M. MITCHELMORE: If the Court pleases, I appear for the first and second defendants. (instructed by Australian Government Solicitor)
HIS HONOUR: Thank you. Now, I received some submissions from you, Ms Mitchelmore - - -
MS MITCHELMORE: Yes, I apologise for the delay, your Honour.
HIS HONOUR: - - - and there is no criticism at all, I am just explaining that I received them just this morning.
MS MITCHELMORE: Yes, I apologise.
HIS HONOUR: I have not yet digested them.
MS MITCHELMORE: Yes.
HIS HONOUR: Mr Mostafa, have you received those submissions? Have you digested them? Are you prepared this morning to proceed?
MR MOSTAFA: I have received those submissions and I have digested them, but there is one point which has not been made in any of the submissions so far. On Saturday my instructors wrote to the Department requesting further information, including any audio recordings. It is envisaged that there would be an audio recording of the interview that occurred between the plaintiff and the delegate in this case. The delegate’s decision records him putting a question to the plaintiff about whether there were any reasons why it would not be reasonable for the plaintiff to relocate, and if your Honour has had a chance to look at the delegate’s decision your Honour will have seen that relocation was the point on which the delegate decided against the plaintiff.
The delegate’s decision does not record what the plaintiff said to the delegate in response to that question, and without having the recording of that interview and not yet able to be sure that there is not another ground on which the delegate’s decision could be tapped in that the way he has dealt with the question of relocation may or may not have dealt with but was put to him by the plaintiff, we just do not know.
HIS HONOUR: All right. When was the letter sent?
MR MOSTAFA: It was an email sent on Saturday.
HIS HONOUR: Ms Mitchelmore, are you aware of this correspondence?
MS MITCHELMORE: Your Honour, my friend told me about it this morning, or overnight, so I am aware that it has been sent. I do not understand that it has yet been responded to but, yes, I am writing that. I understand that there is an audio recording and I imagine that can be produced in the course of the day, but I do not think that that had been obtained until some stage yesterday.
HIS HONOUR: All right. It is undesirable that this matter proceed half-baked. If that audio recording can be produced very shortly, perhaps we would be ready to proceed perhaps next week or the week after.
MR MOSTAFA: Perhaps the week after. We would propose to review the recording and then – I do not know if your Honour has seen, there is already one further ground we would like to add to the application.
HIS HONOUR: Yes, I saw that.
MR MOSTAFA: The recording may give rise to another, it is possible, so we would need to amend and there may be further written submissions required.
HIS HONOUR: Yes. Well, I think I should give that leave to amend. You will need then leave to file further evidence, I think.
MR MOSTAFA: Yes, your Honour.
HIS HONOUR: We need to set a timetable which – and I will let you speak between yourselves about an appropriate timetable, but it would involve you amending, it would then involve evidence on your part. Ms Mitchelmore, it is unlikely that there would be any evidence from you, I think.
MS MITCHELMORE: Yes, your Honour.
HIS HONOUR: We would need written submissions from both sides, I think.
MR MOSTAFA: Yes, and that is on the extension of time only, your Honour? The matter could be heard - - -
HIS HONOUR: Yes, I would like to keep it a little more fluid than that at the moment. I wanted to ask you something about your submissions, Ms Mitchelmore.
MS MITCHELMORE: Yes, your Honour.
HIS HONOUR: You do not oppose an extension of time in relation to the decision of the Tribunal.
MS MITCHELMORE: That is right - - -
HIS HONOUR: You say that the proceeding insofar as it challenges the decision of the Tribunal can be remitted to the Federal Circuit Court.
MS MITCHELMORE: Yes.
HIS HONOUR: But the submissions you go on to make, if accepted, would seem to – in relation to the decision of the delegate - - -
MS MITCHELMORE: Yes.
HIS HONOUR: - - - and the application being significantly out of time in that respect would seem also to be an answer to the merits of the challenge when it got to the Federal Circuit Court. Am I right?
MS MITCHELMORE: Yes, your Honour.
HIS HONOUR: So it would be a vain exercise for me to send that part of the proceeding to the Federal Circuit Court, if you are right?
MS MITCHELMORE: Yes. Certainly insofar as the argument relates to the Tribunal having jurisdiction, or not having jurisdiction; exactly, yes.
HIS HONOUR: Well, that was what the Tribunal decided. The Tribunal did not get to the merits, as I understand it.
MS MITCHELMORE: That is right.
HIS HONOUR: So, for that reason I am disinclined to take that course.
MS MITCHELMORE: Yes.
HIS HONOUR: Yes, I think I am inclined simply to set it down for hearing before me under Order 25.03.3 of the Rules - - -
MS MITCHELMORE: If the Court pleases.
HIS HONOUR: - - - bearing in mind that that hearing would allow me the flexibility of making a variety of orders.
MS MITCHELMORE: Yes, your Honour, of course.
HIS HONOUR: Both parties should be aware of that.
MS MITCHELMORE: Yes, your Honour.
HIS HONOUR: Mr Mostafa, can I ask you this? If your point about the dating of the documents is a good one so that your client does have a right of merits review in the Tribunal, would your client press the application insofar as it seeks to set aside the decision of the delegate?
MR MOSTAFA: No, your Honour.
HIS HONOUR: Yes, all right. Have you had an opportunity at this stage to look at the decision of Chief Justice Allsop to which Ms Mitchelmore refers?
MR MOSTAFA: Only briefly, your Honour, but on its face it does pose a problem; we acknowledge that.
HIS HONOUR: Yes, all right. Very well, I will give you the dates when I would be available to have the hearing and I will allow you to agree between yourselves an appropriate timetable.
MS MITCHELMORE: Yes, thank you, your Honour.
HIS HONOUR: So I could do it on Wednesday, 9 December; Tuesday, 15 December; or Thursday, 17 December.
MS MITCHELMORE: Your Honour, the only – I have a difficulty with the 9th and the 15th only because of directions that are at 9.30 in the morning in another place, but I do not anticipate they will go for terribly long so depending on when your Honour lists I can do any of those dates.
HIS HONOUR: Mr Mostafa, how are you placed?
MR MOSTAFA: I have a difficulty with the 17th, your Honour, in that I will be on an aeroplane.
MS MITCHELMORE: Would your Honour be minded to list it at, say, 11? That would just ensure that any directions that I have which start at 9.30 would be well finished.
HIS HONOUR: I am pleased to do that. Which day would you prefer?
MS MITCHELMORE: I am in your Honour’s hands as to that.
HIS HONOUR: All right, let us make it - - -
MR MOSTAFA: Your Honour, the preference for the 15th, just for the additional time it allows us to deal with the evidentiary issues.
HIS HONOUR: That is what you will get. 11.00 am on 15 December.
MS MITCHELMORE: If the Court pleases.
HIS HONOUR: I will be in Canberra. There is no need for either of you to be in Canberra, the matter can be conducted by video link. It is essential that you have your paperwork in order.
MS MITCHELMORE: Yes. Thank you, your Honour.
HIS HONOUR: All right. Well, I will stand this matter down to be mentioned again after matter No 4 in the list and at that time you will give me the timetable, I hope.
MS MITCHELMORE: The only difficulty is I am in the next matter, your Honour, so I will not be able to speak to my friend while that matter is on, but it may be that the solicitors can – my instructors can speak.
HIS HONOUR: Yes. Well, let us hope that can occur otherwise I will give you a few minutes after that.
MS MITCHELMORE: Thank you, your Honour.
HIS HONOUR: All right, thank you.
AT 10.18 AM SHORT ADJOURNMENT
UPON RESUMING AT 10.26 AM:
MS MITCHELMORE: Mr Mostafa is on his way back in, your Honour.
HIS HONOUR: Good. Ms Mitchelmore, I will sit in silence for two minutes while you speak to Mr Mostafa.
MS MITCHELMORE: I am grateful, thank you, your Honour.
MR MOSTAFA: If the timetable could be handed up to your Honour - apologies for the handwriting.
HIS HONOUR: Thank you. All right - I am not quite sure that I follow the handwritten amendments here. Can I just hand the document back to you? I cannot read the first amendment to order 1 and the dates – I cannot read the handwritten amendment to order 3 and the dates in orders 4 and 5 are a little confusing to me.
MR MOSTAFA: The first order is that the plaintiff file and serve any amended application and any further affidavit evidence by 2 December 2015.
HIS HONOUR: Yes.
MR MOSTAFA: The first defendant is to file and serve any affidavit evidence by 7 December 2015.
HIS HONOUR: Yes.
MR MOSTAFA: The plaintiff file and serve any evidence in reply by 9 December 2015 and on the same day written submissions from the plaintiff; 11 December for written submissions from the first defendant and then the matter is on for hearing on the 15th.
HIS HONOUR: Yes, all right. I will make orders in those terms.
MS MITCHELMORE: Your Honour, I have a copy here which might be more legible, without meaning any criticism of my friend’s handwriting.
HIS HONOUR: Thank you. Yes, I have very bad handwriting as well, Mr Mostafa.
MR MOSTAFA: It is not all my handwriting.
HIS HONOUR: Okay, it is probably best that I read the orders onto the transcript – and the costs of today as costs in the cause?
MS MITCHELMORE: Yes, your Honour.
HIS HONOUR: The orders I make are as follows:
MS MITCHELMORE: If the Court pleases.
HIS HONOUR: Thank you very much. The Court will now adjourn.
AT 10.31 AM THE MATTER WAS ADJOURNED
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