Plaintiff A25A/2017 & Anor v Minister for Immigration and Border Protection & Ors [2017] HCATrans 221 (3 November 2017)

Last Updated: 7 November 2017

[2017] HCATrans 221

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Adelaide No A25 of 2017

B e t w e e n -

PLAINTIFF A25A/2017

First Plaintiff

PLAINTIFF A25B/2017 (BY HIS LITIGATION GUARDIAN PLAINTIFF A25A/2017)

Second Plaintiff

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Defendant

COMMONWEALTH OF AUSTRALIA

Second Defendant

DEFENDANT A25/2017

Third Defendant

Directions hearing

GORDON J

TRANSCRIPT OF PROCEEDINGS

FROM MELBOURNE BY VIDEO LINK TO ADELAIDE

ON FRIDAY, 3 NOVEMBER 2017, AT 10.31 AM

Copyright in the High Court of Australia

____________________

MR S.A. McDONALD: If the Court pleases, I appear for the plaintiffs. (instructed by Camatta Lempens Pty Ltd)

MR P.R.D. GRAY, QC: May it please the Court, I appear for the first and second defendants. (instructed by Australian Government Solicitor)

HER HONOUR: Thank you. Mr McDonald, could you answer a couple of questions for me?

MR McDONALD: Yes.

HER HONOUR: I understand that the substance of the application is that the third defendant’s visa was cancelled in circumstances where your client contends that there was information before the decision-maker that there was another child, KD, and that that child was not considered by the person who cancelled the visa. Is that the thrust of the application?

MR McDONALD: That is the first ground, yes.

HER HONOUR: Yes, and is it necessary for KD to be a party to the proceeding? I do not know the answer to that but I thought I would just ask the question.

MR McDONALD: We had thought probably not. Obviously K’s interests are potentially indirectly affected in a serious way.

HER HONOUR: Yes.

MR McDONALD: But his legal interests are not directly affected as far as we can see.

HER HONOUR: I see, right. I raise it for you anyway just so you can think about it.

MR McDONALD: Yes.

HER HONOUR: The second thing is, having read the file - and I understand the basis of your application, as I said, I have read the materials that have been filed so far - is it proposed in these orders that were sent to my chambers or sent to the Court yesterday or this morning that your clients would make good the proposition that KD was referred to in the material that was filed or at least in front of the decision-maker?

MR McDONALD: Yes, and in fact the material that is before the Court does disclose that.

HER HONOUR: Does it? I could not - - -

MR McDONALD: Would your Honour like me to take you to it?

HER HONOUR: Yes please, I would be very grateful.

MR McDONALD: They are fairly scant references but the primary one that we rely on is found at page 57 of the exhibits to Ms Rutherford’s affidavit.

HER HONOUR: I see, I understand. I did not read that document.

MR McDONALD: It would appear maybe the decision-maker did not either but it is the last entry on that page, your Honour.

HER HONOUR: That is very helpful, thank you.

MR McDONALD: If the Court please.

HER HONOUR: Now, another question I have for you then as well – sorry about this – is that in relation to these proposed orders, on the assumption that it is to come before a single Justice, I do not think that we need an application book or an index to the application book. The papers are not extensive and it seems unnecessary to impose that additional burden and expense on the parties.

So, for present purposes, and I understand these orders are agreed, I would take out 4 and 5 as well as 10 and 11. Between you, you can work out electronic service - unnecessary. Can you answer this question for me? It seems as though 20 pages from both of you for what are, as I understand, three grounds on your perspective are rather long. Do you need 20 pages?

MR McDONALD: We have four grounds and the unreasonableness ground has three distinct reasons why we say the decision was unreasonable. I am really happy to be guided by the Court.

HER HONOUR: All right. I will leave you with 20 pages but I would expect that they may be shorter.

MR McDONALD: Thank you.

HER HONOUR: Anything else you wish to raise, Mr McDonald?

MR McDONALD: No. Your Honour will have seen that we do not necessarily accept everything the Minister has said in support of the hearing being before a single Justice, but we do not want to be further heard about that issue.

HER HONOUR: I understand that. I will have a chat to Mr Gray. Mr Gray.

MR GRAY: If your Honour has the Minister’s submissions, please turn to paragraph 5.4, the last sentencing beginning, “If the delegate in this case erred” is not pressed.

HER HONOUR: I see. Yes.

MR GRAY: Your Honour might then ask me does that impact on the thrust of the submission that was being advanced in paragraph 5 to the effect that the matter did not need to go to a Full Court or should not at this stage go to a Full Court and my answer would be no, it does not impact on that submission, so it is still worthwhile having a primary decision at least from a single Justice because facts need to be found.

HER HONOUR: Can I ask this question? Given that the material that I was taken to by Mr McDonald where KD is before the decision-maker, can you explain to me in words of one syllable what the position is and how that child cannot be referred to by the decision-maker?

MR GRAY: I need to reflect on what has occurred and a reference in the birth certificate of the third defendant.

HER HONOUR: It is clearly there. All right.

MR GRAY: I think it is the birth certificate of the third defendant but it refers to his son.

HER HONOUR: It does, yes.

MR GRAY: So I need to reflect on that, your Honour.

HER HONOUR: All right. I think you possibly should and on that basis, although I probably would have sought to bring the timetable back, I will not. I will make orders in the terms which have been agreed between you, subject to those deletions. Perhaps you could let Mr McDonald and me know if the position changes.

MR GRAY: Of course, your Honour.

HER HONOUR: Sooner rather than later I think would be helpful.

MR GRAY: Yes, I understand, your Honour.

HER HONOUR: Anything else?

MR GRAY: No.

HER HONOUR: Anything else, Mr McDonald?

MR McDONALD: No, thank you, your Honour.

HER HONOUR: Thank you very much. Adjourn the Court.

AT 10.38 AM THE MATTER WAS CONCLUDED