At 8pm tonight, Justice Kenneth Hayne of the High Court granted limited interlocutory (interim) relief (an injunction) to 41 plaintiffs who are people who risk being removed to Malaysia under the Malaysia solution. They are citizens of Afghanistan and Pakistan. A number of them (around 6) are children.
At the outset, Hayne J suggested that he should consider granting interlocutory relief to 4.15 tomorrow so the matter come back before him for further argument at 2.15 tomorrow.
Debbie Mortimer SC for the Plaintiffs stated that there were 16 plaintiffs scheduled for removal tomorrow at 11.30am. There has been no decision made in respect of other plaintiffs.
In order to get interlocutory relief (in this case an injunction), the applicant must prove that there is "a serious question to be tried" and that it is favourable "on the balance of convenience" that the relief sought be granted.
Counsel for the defendants (the Minister for Immigration and the Commonwealth of Australia) stated that they did not wish to put any arguments on balance of convenience, other than the fact that it costs a lot of money to delay the transport of asylum seekers to Malaysia.
So the issue was really "is there a serious question to be tried"?^ (see below for the serious questions as put by the plaintiffs and outline of argument and questioning from the bench)
There was a period of argument about that, during which Hayne J put both counsel through their paces.
In the end, the Plaintiffs were seeking two strands of interlocutory relief:
1. an injunction stopping removal to Malaysia
2. an injunction requiring the Commonwealth to afford the asylum seekers a reasonable chance to get legal advice
Hayne J did not believe it necessary to grant the second stem of the relief, because s 265 obliges the Minister to do so.
But he did grant the first strand of relief, saying that "[the asylum seekers'] claims should not be defeated by their removal from Australia if I cannot say those claims are hopeless"
His Honour expressed no view on the merit of the arguments put before him tonight, but could not say that they are without merit. His Honour stated that the plaintiffs should have the limited relief they seek.
So there is now an injunction in place stopping removal to Malaysia until 4.15 tomorrow (or further order), and the matter will return before Hayne J at 2.15 tomorrow for further argument.
See below for the outline of legal argument.
The plaintiffs have an uphill battle ahead of them but this is an important first step!
Cheers
Jessie Taylor
Apologies for any typos or abbreviations or errors - this was compiled in haste.
Sunday, 7 August 2011
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