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Plaintiff S61/2016 v Minister for Immigration and Border Protection [ 2016] HCATrans 148  (21 June 2016)

Last Updated: 28 June 2016

 [2016] HCATrans 148 

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S61 of 2016

B e t w e e n -

PLAINTIFF S61/2016

Plaintiff

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Defendant

Directions hearing

GAGELER J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 21 JUNE 2016, AT 9.30 AM

Copyright in the High Court of Australia

MR S.B. LLOYD, SC: If it please the Court, I appear with MR B. MOSTAFA for the applicant. (instructed by Fragomen)

MR P.D. HERZFELD: May it please the Court, I appear for the defendant. (instructed by Australian Government Solicitor)

MR LLOYD: Your Honour, the position we are at is that we are very close to agreement on the facts. Some data came through yesterday which has been inserted but the Minister wants a chance to reflect – it is their data, they want a chance to reflect further upon how it is presented and may want to add a bit of extra information.

HIS HONOUR: You mean statistics?

MR LLOYD: Statistics – perhaps if I hand this up, your Honour, and I will just take your Honour – there is very little between us. We have a suggestion as to what to do in terms of timing.

HIS HONOUR: We are concerned with the validity of a direction, are we, in this matter?

MR LLOYD: Yes.

HIS HONOUR: And it is said to be a legislative instrument, as I understand it.

MR LLOYD: That is one of the grounds, yes.

HIS HONOUR: Yes.

MR LLOYD: That is not a ground that relates to the data, but yes.

HIS HONOUR: I see. Well, what does the data go to?

MR LLOYD: Well, another one of the grounds is whether or not the direction, if it operates – in essence, there are three issues in the case. One is whether or not it is a legislative instrument. That is a black and white kind of issue. It is not clear-cut but it is - - -

HIS HONOUR: A black letter issue.

MR LLOYD: Yes. There is a question how to construe the direction and one possible construction which we advance is that the Minister has the capacity to consider compelling circumstances that would allow a favourable decision to be made in my client’s case and they will say that it does not – cannot be construed in that way. Now, if it can be construed in that way they clearly did not construe in that way so we say, and so we would win and that would be the end of it.

Then, if their construction is correct, that the direction allows them no latitude in relation to – no latitude as we would put it; they do not put it this way – to make a decision within a reasonable period of time we then say the way the direction operates is that my client potentially never gets a decision or the direction would have the effect of not having decisions made within a reasonable period of time or not allowing for that even to be a criteria for determining when the decision would be made.

HIS HONOUR: You say that is an inconsistency with the Act, is it?

MR LLOYD: It is repugnant to the Act which requires a decision to be made within a reasonable period. In relation to that there is a lot of material in here about how long it takes to make decisions and the effect of the direction, as we apprehend it, is that our client, in effect, will not have a chance to get a grant of visa until he applies for his grant of citizenship and so then there is some data as to how long that would take if he were ever to be successful.

HIS HONOUR: Sorry, I do not quite understand that. What is the relationship between the visa and the citizenship? He would not need it if he was a citizen.

MR LLOYD: No, no, he has a visa. Our client has a visa. He is trying to sponsor in his wife and children.

HIS HONOUR: I see.

MR LLOYD: The way the direction works is if you are a UMA you are put at the bottom of the list.

HIS HONOUR: Yes.

MR LLOYD: But you are only put at the bottom of the list while you are a UMA who holds a permanent visa. If you are a UMA who is a citizen, you are no longer at the bottom of the list and so there is then some data in here about how long it might take him to become a citizen. So that is what that relates to.

But if I can just briefly indicate where the – if your Honour sees this document, there is – I will not purport to take your Honour through it in any detail because there are still some un-agreed bits in which the Minister is still seeking instructions, but I think the first matter is in paragraph 37 where there is one sentence which we object to and the Minister seeking instructions on that.

In paragraph 38 there is a kind of half a sentence which we want added and the Minister is seeking instructions on that. In paragraph 40 there is a word – although I do not mean to undermine the significance of the word. Paragraphs 40 and 41 deal with sort of a delay issue and the proposition which we are seeking to have agreed is that – I can put it one way or another but essentially on average dealing with UMAs takes longer and so there is a word there.

There are two paragraph 48s – one struck through. The Minister asked for that to be deleted. The one that we have inserted in its place is simply – in paragraphs 45, 46 and 47 there are statistics pertaining to what is called the “humanitarian stream” and we want the Court to be able to draw inferences from that. So the 48 is simply to provide a basis by which the Court could draw an inference that the humanitarian stream is at least broadly indicative. So the Minister is seeking instructions on that.

Then the statistics issue is in paragraph 51 and the Minister is considering the possibility of maybe providing some kind of spread in addition to an averaging period. We do not know exactly what that will be yet, but they think they will probably need to the end of the week to give us a table that has the additional data they want to put in and we would think we could turn that around and agree or resolve that by next Tuesday.

So what we are thinking is that by next Tuesday or Wednesday we could send your Honour what we hope is an agreed version with the possibility, if it suits the Court, of coming back possibly next Friday and your Honour can then rule on it or raise any issues your Honour has with it at that point.

HIS HONOUR: Can I raise an issue now? I am concerned about 70 paragraphs, 17 pages of facts which include statistics from which, I understand, the Court will be asked to draw inferences in circumstances where the inferences sought are not clearly defined, so far as I can see, by any formal document before the Court. If the Court is to be asked to draw inferences, then it would be of great assistance that the primary facts for which each party contends be spelt out in the agreed document, that is to say, at the end of all of this evidentiary material there be clear agreement between the parties as to what the competing inferences of fact are.

MR LLOYD: Right, sort of a heading, as it were, saying “on the basis of the aforesaid the plaintiff will contend for these facts and the respondent will contend for the following facts”?

HIS HONOUR: Yes.

MR LLOYD: I understand. I think we can do that.

HIS HONOUR: It might actually assist the process of agreeing on the evidence as well if you know what the target is.

MR LLOYD: Certainly.

HIS HONOUR: Or at least if you are on the same page as to what the competing targets are.

MR LLOYD: Yes, yes. I do not think we have a difficulty with that. I think it would be relatively – what we are advancing would be relatively simple propositions I think.

HIS HONOUR: Yes. It really would need to be on the basis that that is your case. It is not going to be different once you get to written submissions. There is not going to be some other inference that the Court is asked to draw.

MR LLOYD: I understand. In relation to the questions there are two issues, one on which the Minister is still seeking instruction, but in question 2 which appears in paragraph 71 there is the addition of the words “who holds a permanent visa”. I do not anticipate that will be a problem because that is needed to actually make the question work and attracts with the language of the direction. In question 3 – we have basically agreed to that question deleting the words “section 65 on” so we talk about the implied obligation arising under the Act rather than under a specific section of the Act. So that is where we are at and from our point of view - - -

HIS HONOUR: Yes. Is there a dispute about the existence of the obligation?

MR LLOYD: Not from our part. I mean the Court has held there is one.

HIS HONOUR: I thought so, yes.

MR LLOYD: Held that there was one in a context where it did not necessarily have to flesh out every detail of it, and it may well be that this case requires some explanation or explication of how that obligation works in a more specific - - -

HIS HONOUR: But it is not in issue between the parties in this case?

MR LLOYD: Not that I am aware of. No, I do not think so.

HIS HONOUR: All right.

MR LLOYD: We are sorry we were not able to get ready in time, but if it suits the Court we would ask if we could file by Tuesday or Wednesday of next week, whichever suits your Honour best and appear on Friday, if that suits your Honour.

HIS HONOUR: Yes, all right. Mr Herzfeld, did you want to say anything about this process?

MR HERZFELD: No, your Honour, only that Wednesday might be preferable for the date for filing an agreed document, rather than Tuesday, just given the history of not quite meeting timetables.

HIS HONOUR: Well, given the history I would be inclined to suggest Friday.

MR HERZFELD: We were hoping to have an agreed document to your Honour by Wednesday so that your Honour had an opportunity to consider it before the directions hearing on Friday.

HIS HONOUR: All right. I just do not want any more slippage here. I have asked you to focus on an additional part of the document and I suspect that when there is focus on that there will be some further negotiation, or at least further time needed to digest the precise positions of both parties. I am going to give you to Friday and I am going to suggest a directions hearing, which I hope will be the last directions hearing in this matter, some time in the week commencing 4 July.

MR HERZFELD: Would your Honour just excuse me? I think, your Honour, either Tuesday or Wednesday of that week so the 5th or the 6th would be suitable for the parties.

HIS HONOUR: All right. I will make it the 6th.

MR HERZFELD: Thank you, your Honour.

HIS HONOUR: The orders I propose to make are:

1. Vacate previous directions.
   
2. The parties file a draft of any special case that may be agreed between them on or before Friday, 1 July 2016.
   
3. The matter be listed before me for further directions on Wednesday, 6 July 2016 at 9.30 am.
   

MR HERZFELD: Thank you, your Honour.

HIS HONOUR: They are the directions I make. The Court will now adjourn.

AT 9.44 AM THE MATTER WAS ADJOURNED