Plaintiff S193/2018 v The Judges of the Federal Court of Australia & Anor [2019] HCATrans 21 (20 February 2019)

Last Updated: 20 February 2019

[2019] HCATrans 021

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S193 of 2018

B e t w e e n -

PLAINTIFF S193/2018

Plaintiff

and

THE JUDGES OF THE FEDERAL COURT OF AUSTRALIA

First Defendant

MINISTER FOR HOME AFFAIRS

Second Defendant

GORDON J

TRANSCRIPT OF PROCEEDINGS

FROM MELBOURNE BY VIDEO LINK TO SYDNEY

ON WEDNESDAY, 20 FEBRUARY 2019, AT 9.56 AM

Copyright in the High Court of Australia
MR V.A. KLINE: If your Honour please, I appear for the plaintiff. (instructed by William Deane Chambers)

MR C.L. LENEHAN: May it please the Court, I appear with MR D.J. DELANY for the second defendant. (instructed by Australian Government Solicitor)

HER HONOUR: Mr Lenehan, can I have a chat with you first?

MR LENEHAN: Yes.

HER HONOUR: This matter has a long and sorry history. What is the position with the visa?

MR LENEHAN: Your Honour is aware that there was a decision of the AAT on 15 October 2018

HER HONOUR: That is why I am asking.

MR LENEHAN: My instructions are that there is currently being considered for possible ministerial intervention a preliminary brief under section 501A of the Migration Act. So, as your Honour is aware, that is the provision that allows the Minister to substitute for a decision of the AAT an alternative decision. Now, I am instructed that that is before the Minister in the sense that a preliminary brief has been sent for his attention and that took place on 4 January this year.

HER HONOUR: So educate the illinformed - what does that mean in practical terms?

MR LENEHAN: That is a matter that I have been attempting to clarify this morning, your Honour. It is not known when that process will be completed. What it potentially means is that instead of – does your Honour have the Act with you?

HER HONOUR: I do.

MR LENEHAN: So if you look at section 501A, it says:

This section applies if –

relevantly:

(b) the Administrative Appeals Tribunal;

makes a decision –

and then there is provision for the Minister in subsections (2) and (3) to set aside the original decision and, relevantly, refuse a visa to the person. So that is the process that is under consideration at the moment, I am instructed.

HER HONOUR: How does that sit with the direction that was given by the AAT?

MR LENEHAN: Yes. So the AAT remitted the matter to the Minister, as your Honour has seen, with a direction that it was not to be cancelled under section 501(1).

HER HONOUR: Yes.

MR LENEHAN: The Minister can substitute for that decision another decision, which is what is being considered at the moment. Now, the question which your Honour, through the Registry, asked the parties is one that I am still, regrettably, unable to provide illumination on, that is when is this process likely to be completed.

HER HONOUR: When are you likely to get instructions about that matter?

MR LENEHAN: I can seek those instructions again.

HER HONOUR: I think you should.

MR LENEHAN: Yes.

HER HONOUR: In the circumstances. Do you understand?

MR LENEHAN: Yes, I do, your Honour, yes.

HER HONOUR: Do you accept that is a proper process?

MR LENEHAN: I do accept that, your Honour.

HER HONOUR: All right. So what shall I do, shall I adjourn for a period of time, do I adjourn to next week, what is the position?

MR LENEHAN: Can I just obtain instructions on that question, your Honour?

HER HONOUR: Certainly. You might have a discussion with Mr Kline as well, Mr Lenehan.

MR LENEHAN: Yes, your Honour. Your Honour, I think it would be wise to adjourn for a week - your Honour’s latter suggestion.

HER HONOUR: Well, I will hear what – you might have a discussion with Mr Kline about that. We are not in S297 territory, but this is of grave concern to me. The direction was made three months ago and it is really unsatisfactory, I think, at the moment, subject to any submissions, of course, you might like to make. I do not want the matter coming back in a week and being in the same position.

MR LENEHAN: Yes.

HER HONOUR: What I think should happen is – today is Wednesday. It should come back in a week but I think you should, through your instructors, advise Mr Kline and his instructors what the position is so that Mr Kline can consider his position.

MR LENEHAN: Yes.

HER HONOUR: Is that fair?

MR LENEHAN: It is fair, your Honour, and we will do that.

HER HONOUR: All right. Mr Kline, is that satisfactory to you in the circumstances?

MR KLINE: Yes, it is, your Honour, thank you very much.

HER HONOUR: All right. I will adjourn it till next Wednesday at 9.30. Is that convenient to both of you?

MR LENEHAN: Your Honour, I think I am in a hearing commencing at 10.15.

HER HONOUR: Would you like to start earlier, or would you like another day?

MR LENEHAN: Would your Honour excuse me just for one moment?

HER HONOUR: Certainly.

MR LENEHAN: Your Honour, failing that I am available on the 26th and also the 28th.

HER HONOUR: I am happy to do it on the – the 26th I am actually in Canberra but I could do it at 9.30 from Canberra. I will just check with the Registrar that I am not going to create problems with that. Yes, I will be in Canberra on the 26th if that helps.

MR LENEHAN: That is convenient to me, your Honour.

HER HONOUR: Mr Kline?

MR KLINE: Yes, your Honour, I am free all day on the 26th.

HER HONOUR: All right, let us do it at 9.30 on the 26th. It will be from Canberra and if that hearing is no longer necessary then no doubt the parties will let me know.

MR LENEHAN: Yes.

HER HONOUR: I will not make directions, Mr Lenehan, but as I said I expect that your side will have advised Mr Kline and his instructors about what the position is so that he can then reconsider – or consider what he wishes now to do.

MR LENEHAN: Yes, we will do that, your Honour.

HER HONOUR: Anything else?

MR LENEHAN: No, your Honour, not from me.

HER HONOUR: Mr Kline?

MR KLINE: Nothing further, thank you, your Honour.

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

AT 10.03 AM THE MATTER WAS ADJOURNED