Nguyen & Ors v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCATrans 47 (31 March 2022)

Last Updated: 31 March 2022

[2022] HCATrans 047

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Canberra No C1 of 2022

B e t w e e n -

TRUNG TIEN NGUYEN

First Plaintiff

THOAN THI NGUYEN

Second Plaintiff

LINH DIEU NGUYEN

Third Plaintiff

THANH TIEN NGUYEN

Fourth Plaintiff

and

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Defendant

STEWARD J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA BY VIDEO CONNECTION

ON THURSDAY, 31 MARCH 2022, AT 9.30 AM

Copyright in the High Court of Australia

____________________

HIS HONOUR: In accordance with the Court’s current protocol I will announce the appearances.

MR L. BOCCABELLA appears for the applicants. (instructed by Jindalee Lawyers Pty Ltd)

MR T.J. REILLY appears for the respondent. (instructed by MinterEllison)

HIS HONOUR: Mr Boccabella, can you hear me all right?

MR BOCCABELLA: Yes, thank you, your Honour.

HIS HONOUR: Mr Reilly, can you hear me?

MR REILLY: Yes, I can, thank you, your Honour.

HIS HONOUR: All right, thank you. The purpose of today’s mention is really to do two things. Firstly, to indicate that I have reviewed the papers and the Court will not on this occasion sit a three‑member Bench to decide the remittal Gajjar issue, which has been raised by the parties. The second thing is to indicate that I, having reviewed the papers, consider that this is a matter that can be determined on the papers, subject to hearing from you both today, and confirming with you both that I have all the material that you think I need in order to resolve the matter.

So could I just tell you what I have got and you can tell me if I have missed something and whether you need to add to it. I have got, Mr Boccabella, your application to start with. I have got an affidavit of Mr Tran which was affirmed on 6 January 2022. I have another affidavit of Mr Nguyen which I do not think you need to read, Mr Boccabella?

MR BOCCABELLA: That is correct.

HIS HONOUR: Yes, so that does not need to be read. I have, Mr Reilly, your response. I have, Mr Boccabella, your plaintiff’s reply. I have in addition the separate submissions on remittal, the plaintiff’s submissions, yours, Mr Boccabella. I have, Mr Reilly, your submissions on remittal. Is there anything that I have missed, Mr Boccabella?

MR BOCCABELLA: No, you have got everything that has been supplied. It may be useful for my learned friend and I to put together a court book which would consist of all the material before the delegate because our case is that the delegate just did not consider the material as was put, and that that is our essential judicial review point, that there was material to find in favour of the applicant and, on my submission, the delegate thought that if there was not a response in time to the request for further information the delegate could simply make an adverse decision.

Our case is even if somebody does not respond they must still look at all the material – and I use the word “grapple” with the material in the Dranichnikov sense. So to do that properly I would submit that a court book be compiled, hopefully by consent between the parties, and that would then probably require further submissions by both sides and possibly a brief reply by the plaintiff.

Your Honour, I am a keen supporter of oral hearings and I, indeed, have read the speeches of the Chief Justice on this point and would submit in a case like this which has a lot of qualitative elements to it that an oral hearing would be appropriate.

HIS HONOUR: Well, Mr Boccabella, it is always a question of balancing those considerations with the resources of the Court ‑ that is really what it comes down to – and these things come, as you have submitted, into the original jurisdiction of this Court in a way which is perhaps unusual, on one view. This is usually – but for the geographical location of your clients, this would have gone presumably to the Administrative Appeals Tribunal and made its way up the chain, as it were. Can I ask this, Mr Reilly, do you have any objection to any part of the affidavit of Mr Tran and any of the exhibits?

MR REILLY: No, your Honour.

HIS HONOUR: Do you have any objection to Mr Boccabella’s suggestion of a court book?

MR REILLY: No, I do not. I think that would be a good idea because just looking at the papers I think there are some things missing, like the original visa application, and so it would be good to have a normal court book where everything is there and everything is in chronological order. It would probably make everyone’s life easier.

HIS HONOUR: Well, I would be grateful if a court book of that kind could be prepared and if you could agree with Mr Boccabella what is to go into it, and all the material that was before the decision‑maker will obviously be something which I will need to see. I also propose to give you both leave to put on further written submissions traversing any matter which has not been traversed already or which requires in your respective views as advocates further detail. Mr Boccabella, how long do you think it will take for the court book to be prepared?

MR BOCCABELLA: There is often a delay getting all the material from the decision‑maker. That is almost in my learned friend’s hands. But a month would ensure that that would be done. Ordinarily, if a Freedom of Information Act application is sought, that literally takes months, but one month would be sufficient for that.

HIS HONOUR: Mr Reilly, what do you say?

MR REILLY: Yes, a month would certainly be enough, your Honour.

HIS HONOUR: So if an order was made that on or before 29 April the parties prepare and file a joint court book would that be something you can both cope with?

MR REILLY: Yes, your Honour.

MR BOCCABELLA: Thank you.

HIS HONOUR: All right. Then, Mr Boccabella, if I gave you two weeks to prepare and file further written submissions?

MR BOCCABELLA: Yes, thank you, your Honour.

HIS HONOUR: So that would take us to, say, 16 May, Monday, 16 May.

MR BOCCABELLA: Yes.

HIS HONOUR: Then two weeks for you, Mr Reilly?

MR REILLY: Your Honour, I am sorry, I have got a – I am taking some time off in May. Would it possible for me to have – could I ask for three weeks please?

HIS HONOUR: Mr Boccabella, do you object to that?

MR BOCCABELLA: No, certainly not. Let us make it four.

MR REILLY: Very well, four.

HIS HONOUR: Give Mr Reilly a proper break, shall we? How about 13 June, Mr Reilly?

MR REILLY: Yes, thank you, your Honour.

HIS HONOUR: Then a reply – well, how long would you like? Seven days, Mr Boccabella?

MR BOCCABELLA: Two weeks, your Honour, if that were convenient.

HIS HONOUR: 27 June. All right. Mr Boccabella, what I had in mind is that when I have read this additional material, if I need an oral hearing you will be listed.

MR BOCCABELLA: Yes, thank you.

HIS HONOUR: If I can work it out from the papers, then I will work it out, and the decision will either be one of two. It will either be a decision remitting or a decision not remitting and deciding the substantial judicial review application. It will be one or the other.

MR BOCCABELLA: Yes.

HIS HONOUR: Mr Reilly, are you content with that?

MR REILLY: Yes, thank you, your Honour.

HIS HONOUR: As I said, I am not trying to – I am not against oral hearings at all, it is just a question of – there are only seven of us here and we are fairly pressed, as it were.

So what I propose to do is I will make the following orders which will get sent out to you in due course:

1. The parties are to file an agreed court book on or before 29 April 2022.

2. The plaintiff is to file and serve any further written submissions on or before 16 May 2022.

3. The defendant is to file and serve any further written submissions on or before 13 June 2022.

4. The plaintiff is to file and serve any written reply on or before 27 June 2022.

Is there anything else, Mr Boccabella?

MR BOCCABELLA: Just briefly, your Honour. I just want it to be pointed out on the record that we are not here as a matter of choice. Obviously, we are here because of the case of Xia which was decided in the Federal Circuit Court.

HIS HONOUR: Yes, I have read that. I understand your position entirely.

MR BOCCABELLA: So we do not – I certainly would only as a last resort advise any person to commence original proceedings in the High Court, obviously.

HIS HONOUR: Mr Boccabella, there is no suggestion that you would do otherwise. Indeed, you are, as the best as I can tell, representing your client with all the skill and tenacity that a barrister should.

MR BOCCABELLA: Thank you, your Honour.

HIS HONOUR: Mr Reilly, anything else from you?

MR REILLY: No, thank you, your Honour.

HIS HONOUR: All right then, we will adjourn the Court. Please adjourn the Court.

AT 9.40 AM THE MATTER WAS ADJOURNED