Al-Miahi, Ex parte - Re Philip Ruddock in his capacity as MIMA & Ors S154/2000 [2001] HCATrans 396 (23 August 2001)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S154 of 2000

In the matter of -

An application for Writs of Certiorari, Prohibition and Mandamus and an Injunction against PHILIP RUDDOCK in his capacity as THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS OF THE COMMONWEALTH OF AUSTRALIA

First Respondent

DINOO KELLEGHAN in her capacity as a Member of the REFUGEE REVIEW TRIBUNAL

Second Respondent

PETER NYGH in his capacity as the Principal Member of the REFUGEE REVIEW TRIBUNAL

Third Respondent

Ex parte -

AKEEL RAHMA AL-MIAHI

Prosecutor/Applicant

GLEESON CJ

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON THURSDAY, 23 AUGUST 2001 AT 10.15 AM

Copyright in the High Court of Australia

_____________________

MR S.C. ROTHMAN, SC: If the Court pleases, I appear with my learned friend, MR D.D. KNOLL, for the applicant. (instructed by Michael Jones)

GLEESON CJ: Is that so?

MR ROTHMAN: Yes, your Honour.

GLEESON CJ: Where do your instructions come from?

MR ROTHMAN: Your Honour, my instructions came from the applicant and the application for order nisi was made and heard before his Honour Justice Gummow - the date I am afraid now escapes me - but his Honour then remitted the part ground A of the order nisi and - - -

GLEESON CJ: There is evidence, as I understand it - we will come to this in a moment - that your client has disappeared.

MR ROTHMAN: There is evidence, your Honour, that my client is no longer in detention.

GLEESON CJ: Do you know where he is?

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

GLEESON CJ: And you are not in communication with him?

MR ROTHMAN: No, your Honour. We were informed he was not in detention by my learned friend. I make no complaint about that. That is set out in our submissions, your Honour.

GLEESON CJ: This seems to place you and your instructing solicitor in a very interesting ethical situation. Where will you get your instructions from if it becomes necessary to make decisions during the course of the progress of the matter?

MR ROTHMAN: We say, your Honour, two things. We put to the respondents that in light of the situation as it stands at the moment that the matter before the Court ought be adjourned until such time as the whereabouts of the applicant is known.

GLEESON CJ: You may be right about that, but I am just looking at your position at the moment and that of your instructing solicitor. Suppose a proposal comes from your opponent or from me that this matter should be stood over for a week. Where are you going to get your instructions from in order to respond to that proposal?

MR ROTHMAN: Your Honour, the instructions that were obtained when the matter was first brought on would be, as I am instructed - and I am, of course, instructed by my instructing solicitor - sufficient to allow an adjournment of the matter. Your Honour's point nevertheless, to take a more substantive matter, other than perhaps an adjournment for a week - I do not seek to cavil with your Honour's point. There obviously may in a hypothetical - and even less than a hypothetical situation arise matters about which we ought get instructions. That is one of the bases upon which we considered that it was appropriate given the time of the Court and the incapacity to obtain instructions on a matter that might be not otherwise covered by our instructions and on which the Court would need to have some submissions.

GLEESON CJ: You may ultimately be right about that, Mr Rothman, and it may be that the proper course to take is along the lines that you are suggesting. I simply, in the context of taking your announcement of your appearance, make the observation that you and your instructing solicitor may have some thinking to do about the situation in which you find yourselves.

MR ROTHMAN: I am grateful to your Honour and, indeed, am apprised of the problem. The position, your Honour, is this, that - - -

GLEESON CJ: Just before we go any further I will take the appearances for the - - -

MR S.B. LLOYD: I appear for the first respondent, your Honour. (instructed by the Australian Government Solicitor)

GLEESON CJ: I have a certificate from the Deputy Registrar saying that she has been informed by the solicitor for the second and third respondents that the second and third respondents do not wish to be represented at the hearing of this matter and will submit to the jurisdiction of the Court save as to costs. Now, Mr Rothman, before we proceed any further perhaps we should deal with the matter of this affidavit that has been filed concerning your client's position.

MR ROTHMAN: Yes, your Honour.

GLEESON CJ: I understand that it is intended to be used as the foundation for some submissions that will be made by your opponent but, in any event, we had better get the facts straight.

MR ROTHMAN: Yes, your Honour.

GLEESON CJ: Mr Lloyd, do you read an affidavit of Elizabeth Norah Jacqueline Warner of 21 August?

MR LLOYD: I do, your Honour.

GLEESON CJ: Is there any objection to any part of that affidavit?

MR ROTHMAN: We apparently have not been served with a copy. We are aware that an affidavit was to be filed and we saw a draft but we have not seen the final affidavit.

MR LLOYD: I understand the sealed copy has not been served but that a draft version was served.

MR ROTHMAN: I have been instructed what is in it, your Honour, and I do not take any issue with that course. It is just that I wanted to ensure that what I have seen is, in fact, that which is before the Court.

GLEESON CJ: You had better just check on that.

MR ROTHMAN: Yes, your Honour. I do not suggest, by the way, that it would not be deliberately or anything.

GLEESON CJ: No, no.

MR ROTHMAN: Yes, your Honour. I have no objection to the filing in Court of that affidavit.

GLEESON CJ: All right, and you do not object to any part of it?

MR ROTHMAN: No, your Honour, I do not object to anything.

GLEESON CJ: I have read that affidavit. Well, that establishes the factual basis of what we were discussing a little earlier and really the question is this morning: what is the appropriate course to take?

MR ROTHMAN: Yes, your Honour.

GLEESON CJ: There used to be a rather coy old-fashioned expression used by some barristers and solicitors in what were once called police courts, Mr Rothman. They would inform the magistrate that they were not properly instructed. By that they often meant that their fees had not been paid in advance, but it is an expression that has some wider import and it could possibly cover your situation at the moment.

MR ROTHMAN: Yes, your Honour. Your Honour, the position is this. As your Honour can assume and as is obviously the case, instructions were originally obtained to file the matters in the Court and instructions were obtained necessary for that purpose. In paragraph 6 and 7 of the submissions for the prosecutor that were filed in this Court we drew attention to the Court that we had been informed by the first respondent that the prosecutor was no longer at Villawood Detention Centre and - - -

GLEESON CJ: What is - for the moment I will refer to him as your client, Mr Rothman, although, as I say, that position may need some sorting out, but what is his current status as a result of the stage that the litigation has now reached?

MR ROTHMAN: You mean as a litigant, your Honour?

GLEESON CJ: Both as a litigant and as a person present in Australia, assuming he is present in Australia.

MR ROTHMAN: Assuming he is present in Australia, your Honour, then the situation is this. He was an applicant for a protective visa and that was refused by the Tribunal. Application for prerogative relief was issued in this Court on his instructions - - -

GLEESON CJ: Before you go any further, what is the consequence on a person's status of having made an unsuccessful application for a protection visa?

MR ROTHMAN: None, your Honour, during the period during which the proceedings are before the Court as to the nature of that - - -

GLEESON CJ: You mean he is getting some benefit from having these proceedings on foot?

MR ROTHMAN: Your Honour, he is subject to deportation orders, if that were sought to be done by the Minister. There is authority for the proposition that the deportation ought not issue until prerogative relief, if any, has been examined and the processes of the Court determined.

GLEESON CJ: Well, you use the word "ought" in that connection. Is it a question of discretion or a question of power?

MR ROTHMAN: In terms of whether or not a deportation order was effective or would be stayed, it is obviously a question of power, your Honour. There is no requirement to stay a deportation order if one issued. However, your Honour, in the current situation what is - what has occurred is this. Your Honour is more than aware of the restrictive nature of the judicial review under the Migration Act. Her Honour Justice Branson decided that under that Act, and, indeed, under ground A of the prerogative writ which had been remitted to her, that the Tribunal had erred in a way on which orders ought be granted and issued those orders, that is remitting it back to the Tribunal to determine. The Full Court upheld an appeal against that order and that decision of the Full Court of the Federal Court is the subject of an application for special leave to appeal to this Court.

GLEESON CJ: What I wish to understand, Mr Rothman, is whether your client is obtaining any legal benefit or advantage from the fact that these proceedings that are before me this morning remain on foot.

MR ROTHMAN: No, your Honour, not as of right, that is the applicant at every stage after the issue of the Tribunal decision was capable of being the subject of a deportation order and it was up to the courts then to determine whether or not that deportation order ought properly be stayed in the exercise of the discretion of whichever court it went to. I do not say that disrespectfully, your Honour. Without such a stay, there is no benefit granted to the applicant on the basis of the proceedings that are currently on foot before any court.

GLEESON CJ: Let me tell you what is going through my mind at the moment.

MR ROTHMAN: Yes, your Honour.

GLEESON CJ: This is subject to any comment you or Mr Lloyd may wish to make. For my part, I do not understand why this Court should expend any time in relation to this matter if it be the case, as appears to be uncontroverted, that your client is missing. He may or may not be in Australia. You do not know his whereabouts. Nobody knows where he is. I might add that for that matter nobody knows what his side of the story is in relation to the circumstances that led him to leave the detention centre.

MR ROTHMAN: Indeed, your Honour.

GLEESON CJ: In those circumstances, my initial inclination would have been simply to stand the matter out of the list, provided doing so does not secure any legal advantage to your client, so that it would then become in his interest simply to have the proceedings remain on foot indefinitely.

MR ROTHMAN: I thought I had understood what your Honour was seeking to address when you were asking me about the interests the applicant may have in court proceedings that are on foot. Your Honour, the Migration Act makes two things clear. Firstly, if a person is not currently in detention, they can be detained at any time. Secondly, once they are redetained, it is as if they were in detention for all of the time they were in detention and, secondly, this Court and, indeed, other courts, with respect, have made it clear that even an offence - and, of course, thus far no offence has been proven, if one was ever charged, but even an offence does not deprive a person of the rights that they would otherwise have in relation to the Act and, indeed, the Tribunal. It is a very long way around, your Honour, saying that - - -

GLEESON CJ: Let me ask the question in a slightly different way. Does your client have an interest in delay in these proceedings?

MR ROTHMAN: No, your Honour. No, your Honour, and we do not do it for that purpose. We do it because the applicant is not here and because the applicant, in our respectful submission, ought be here and there may be matters that arise upon which we would need instructions.

GLEESON CJ: I think it is common ground that he ought to be here.

MR ROTHMAN: Yes, your Honour.

GLEESON CJ: I will see what Mr Lloyd has to say. Can you deal with that matter first, Mr Lloyd.

MR LLOYD: Certainly, your Honour.

GLEESON CJ: What is the consequence, if any, in relation to the applicant's liability to deportation, if, for example, he turned up tomorrow, of the circumstance that these proceedings are on foot?

MR LLOYD: When these proceedings initially began there was an application for a stay of the power to remove him. As I recall, it was put that that was not necessary because we would not remove him without the need for a stay order while these proceedings were on foot.

GLEESON CJ: You presumably are in a position to change your stance in that regard in the current circumstances.

MR LLOYD: Indeed, but having said that, the Minister has been criticised recently in the Federal Court for removing people just where there is in existence litigation, whether there is a stay or not.

GLEESON CJ: Presumably it would depend upon the circumstances.

MR LLOYD: Certainly, your Honour.

GLEESON CJ: But I am interested in the matter of power. Is the power of the Minister to remove the applicant affected by the circumstance that these proceedings are on foot otherwise than by the - - -

MR LLOYD: I understand what your Honour is saying.

GLEESON CJ: - - - indication or undertaking, whatever it was that you have earlier referred to, which presumably could be changed.

MR LLOYD: My understanding is that unlike the usual case where someone is on a bridging visa, where that would affect the Minister's power, this person is not on a bridging visa. The bridging visas tend to say that you can stay until 28 days after the end of the court proceedings. There is no equivalent here because Mr Al-Miahi was in detention. So he is not - - -

GLEESON CJ: Then why should I not just stand this matter over out of the list, which would then put an onus, I would have thought, upon the applicant if he reappeared and was threatened with removal, of explaining why the matter should be restored to the list and why some steps should be taken to prevent his removal, bearing in mind the circumstances in which the matter came to be taken out of the list.

MR LLOYD: I understand what your Honour says. I suppose that is one option. The option the Minister would submit would be to dismiss the matter. It is not, at the end of the day, a final order. There is no res judicata. The applicant could then come back and try and explain the delay and explain his being away from a position - - -

GLEESON CJ: I have read your written submissions in relation to that. One difficulty that I have is that one of the grounds upon which you want the matter dismissed is that the applicant has not acted in good faith. I understand that argument but I have a little difficulty with the concept that that argument could be finally resolved without at least giving the applicant an opportunity to explain the circumstances in which he came to leave the detention centre. I do not know what they are and, on the face of things, it looks as though the applicant might be confronted with a serious problem by the argument that you raise.

It may also be the case that if in a certain number of weeks or months from now it appears unlikely that the applicant is going to turn up, you might want to restore the matter to the list for the purpose of bringing it to finality. But just at the moment, at least provided the applicant is not improving his own position by, as it were, staying away from the Court, I am very disinclined to devote any significant part of the Court's time to dealing with this matter.

MR LLOYD: Certainly, your Honour. I suppose on any view they still have their special leave application, so there would still be a problem with removing him while that special leave application was on foot, even if this was dismissed.

GLEESON CJ: Yes. I am a little surprised you say that. I am not sure that he will succeed in getting that special leave application listed if he is still, as it were, on the run. The Court does not have a lot of spare time to devote to special leave applications either and if the reason the special leave application is still pending and the reason these proceedings have not been brought on for hearing is because he has absented himself, as at present advised, I would have thought that was a relevant consideration to be taken into account in considering what are the consequences for his position. If, for example, he turned up again in six months time and the Minister said, "I am going to remove you", and he then sought a court order staying the exercise of the power of removal on the ground that he had pending legal proceedings, it might be expected that a judge dealing with that application would inquire a little more closely into how it came about that the proceedings were still pending.

MR LLOYD: Certainly, your Honour. I understand what your Honour says and perhaps I cannot take it a great deal further than that. In those circumstances, I - - -

GLEESON CJ: All right. I am also concerned, I must say, about the position in which Mr Rothman and his junior counsel and his instructing solicitor find themselves. I have not thought it through myself but my initial reaction is that it could be a position that involves some considerable difficulties, including perhaps ethical difficulties, from their point of view.

MR LLOYD: Certainly it is perhaps fair for me to say on behalf of the Minister that the Minister would not preclude the possibility of seeking an order for costs against the appellant's legal representatives if it transpired that they did not have instructions.

GLEESON CJ: There is a procedure, you know, for challenging a retainer. It is usually done by a substantive motion. I am not inviting you to adopt that procedure in the present case. I simply draw your attention to the fact that if a barrister wants to assert that his opponent is not, to use the old-fashioned term, properly instructed, there is a formal way of going about that.

MR LLOYD: Certainly, your Honour. I will take instructions in due course from my client, your Honour.

GLEESON CJ: Is there anything further you want to put, Mr Rothman?

MR ROTHMAN: No, your Honour.

GLEESON CJ: What I will do in this matter is stand it out of the list with liberty to either party to make application to restore it to the list on 14 days notice to the other party. I will simply reserve any questions of costs of today's proceedings. Is it necessary for me to certify for counsel?

MR LLOYD: It is necessary in order, I suppose, for either side to get their costs.

GLEESON CJ: All right. I will certify that this was a proper case for the attendance of counsel - - -

MR ROTHMAN: If the Court pleases.

MR LLOYD: May it please the Court.

GLEESON CJ: - - - without expressing any view as to the relevance of that observation. I will adjourn.

AT 10.40 AM THE MATTER WAS ADJOURNED