Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs & Anor [2021] HCATrans 214 (9 December 2021)

Last Updated: 13 December 2021

[2021] HCATrans 214

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S135 of 2021

B e t w e e n -

SOSEFO KAUVAKA LELEI TU’UTA KATOA

Plaintiff

and

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Defendant

JUDGE OF THE FEDERAL COURT OF AUSTRALIA

Second Defendant

GAGELER J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA BY VIDEO CONNECTION TO SYDNEY

ON THURSDAY, 9 DECEMBER 2021, AT 10.01 AM

Copyright in the High Court of Australia

HIS HONOUR: In accordance with the protocol for remote hearings, I will announce the appearances of the parties.

MR O.R. JONES appears for the plaintiff. (instructed by Turner Coulson Immigration Lawyers)

MR B.D. KAPLAN appears for the first defendant. (instructed by Australian Government Solicitor)

HIS HONOUR: I note that there is a submitting appearance for the second defendant. As I understand the scope of the matter from the documents that have been filed, the application for a constitutional writ of mandamus is based on the proposition that Justice Nicholas constructively failed to exercise the jurisdiction conferred by section 477A(2) of the Migration Act by basing his decision on an assessment of the substantive merits of the proposed application, rather than on a preliminary assessment of whether the application was arguable. The plaintiff, in support of that proposition, relies on a number of decisions of the Full Court of the Federal Court which the first defendant in response argues were wrongly decided.

I drew the attention of the parties to a case in 2019 where I had occasion to consider similar arguments. The case is EBT16 v Minister for Home Affairs [2019] HCA 44; (2019) 374 ALR 443. The course that I indicated in that case - at paragraph [8] I indicated that I would be inclined to refer a question of that nature to the Full Court, rather than to hear it myself. That is the course that I am inclined to take in the present matter, subject to working through a couple of possible wrinkles.

Now, Mr Jones, a couple of questions for you. The first is this. There were two proceedings before Justice Nicholas. One of them had been commenced in the Federal Court. The other had been commenced in the Federal Circuit Court and transferred by some mechanism to the Federal Court. Am I correct to understand that your application relates only to the proceeding that was commenced in the Federal Court?

MR JONES: Yes, your Honour.

HIS HONOUR: The second question concerns ground 2. I think that where we had got to is ground 2 was not really a separate ground. Is that correct?

MR JONES: Yes, that is right, your Honour.

HIS HONOUR: Yes, all right. Do you have any objection to the course that I propose?

MR JONES: No, we do not, your Honour.

HIS HONOUR: Right. Mr Kaplan, I cannot see you, but I understand you can hear me. Do you have any objection to the course I propose?

MR KAPLAN: Your Honour, the Minister does not have any objection to the course proposed by your Honour. However, can I just indicate to your Honour that the Minister, notwithstanding the submissions that appear at paragraphs 18 and following of the response, nonetheless maintains his primary position, which your Honour will see set out in paragraphs 9 through to 17 of the response, that Justice Nicholas did not in determining the application for an extension of time, stray beyond assessing the arguability of the proposed ground of review below.

HIS HONOUR: Yes. I appreciate that. Can you assist me with this? His Honour says at paragraph 8 that the ground was fully argued. Do I understand you dispute that, or you seek to gloss what his Honour says in some way?

MR KAPLAN: No, not that statement in paragraph 8, your Honour, because the application for an extension of time and the putative judicial review application before his Honour seeking to invoke section 476A of the Migration Act were heard together at the same time. So, we do not take issue with that first sentence in paragraph 8.

HIS HONOUR: All right, so we do not need to concern ourselves with the transcript or inferences to be drawn from the course of events?

MR KAPLAN: No, your Honour.

HIS HONOUR: Very well. Was there anything you wished to add then, Mr Kaplan?

MR KAPLAN: No, your Honour.

HIS HONOUR: All right, thank you. The course I propose to take is to make the following orders:

1. Grant leave to the plaintiff to amend the application by: (a) adding “in proceeding NSD 1812 of 2019” after “24 August 2021” in proposed order 1; and (b) deleting ground 2.

2. The application as so amended is referred for hearing by a Full Court.

Those are the orders I make. The matter could possibly be heard by a Full Court in April. A Deputy Registrar will be in touch with the parties to fashion a timetable that would have the matter ready for hearing by the Full Court in those sittings.

Is there anything else, gentlemen?

MR JONES: No, I am grateful, your Honour.

MR KAPLAN: No, your Honour.

HIS HONOUR: Very well. Thank you very much. The Court will now adjourn.

AT 10.10 AM THE MATTER WAS ADJOURNED