Plaintiff M46 of 2013 v Minister for Immigration and Citizenship & Ors [2013] HCATrans 121 (23 May 2013)

Last Updated: 24 May 2013

[2013] HCATrans 121

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M46 of 2013

B e t w e e n -

PLAINTIFF M46 OF 2013

Plaintiff

and

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Defendant

THE OFFICER IN CHARGE, MELBOURNE IMMIGRATION TRANSIT ACCOMODATION

Second Defendant

SECRETARY, DEPARTMENT OF IMMIGRATION AND CITIZENSHIP

Third Defendant

Summons for directions

HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON THURSDAY, 23 MAY 2013, AT 10.30 AM

Copyright in the High Court of Australia

MS K.L. WALKER: If the Court pleases, I appear on behalf of the plaintiff. (instructed by Allens Lawyers)

MR S.P. DONAGHUE, SC: If the Court pleases, I appear on behalf of the defendants. (instructed by Australian Government Solicitor)

HIS HONOUR: Ms Walker.

MS WALKER: Your Honour, this of course is an application to show cause. The principal relief in relation to the application is an order for mandamus. I hope that your Honour has received some documents that were filed yesterday.

HIS HONOUR: Yes.

MS WALKER: In particular, the affidavit of Ms Nance and some submissions from the defendants which contain some proposed orders. Those documents indicate, your Honour, that there is a process now in place for consideration of whether the Minister might refuse the plaintiff’s visa based on section 501 of the Migration Act. In those circumstances, your Honour, the plaintiff considers that the orders proposed by the defendants in the written submissions are appropriate. So unless your Honour had any questions about that proposition that was really all I proposed to say.

HIS HONOUR: Yes, very well. You say that it should be simply stood out of the list generally.

MS WALKER: We do, your Honour, yes.

HIS HONOUR: Very well.

MS WALKER: We think at this stage it would be premature, clearly, to proceed to take any further steps in the matter given that it may be that the matter is resolved without the need for further steps, but equally it would be premature to regard the proceedings as at an end.

HIS HONOUR: Yes. Mr Donaghue.

MR DONAGHUE: Your Honour, I do not seek to add anything further unless there is anything that I can assist the Court with.

HIS HONOUR: Why should the Commonwealth be joined as defendant? What relief is sought against the Commonwealth law as appropriate?

MR DONAGHUE: I do not seek that, your Honour. I consent to that order that is sought against us by the plaintiff.

HIS HONOUR: Ms Walker, why should the Commonwealth be joined? I am not saying it should not, but it is not instantly apparent to me why.

MS WALKER: The reason for that, your Honour, is in relation to the potential subsequent relief depending on the resolution of some of the questions that arise. A challenge is made to the validity of the plaintiff’s detention and on that issue it is contended that the Commonwealth would be an appropriate party.

HIS HONOUR: Would not habeas go to the gaoler?

MS WALKER: It would, your Honour, that is correct but I suppose the point, from our point of view, was that if a challenge to validity of a Commonwealth law is in issue then it seems that the Commonwealth is an appropriate party.

HIS HONOUR: Plainly, but is there such a challenge on foot now, do you say?

MS WALKER: That might depend on the ultimate way in which the matter is resolved, or not resolved, outside of the proceedings, but certainly one aspect of the proceedings as the plaintiff has crafted them may involve that step. It may be, your Honour, that it is unnecessary to take that step of adding the Commonwealth now and that step could be taken subsequently if the proceeding continues because can I flag to your Honour that it is also undoubtedly going to be necessary for the plaintiff to amend the application, depending on the outcome of the processes. So it may be that it is convenient at that stage to consider the addition of the Commonwealth as a party.

HIS HONOUR: Yes. Could I understand the chronology in this matter? When was this man first taken into detention?

MS WALKER: Approximately – and I apologise I cannot give your Honour off the top of my head an exact date, but it was in 2009 – December 2009 I am instructed, your Honour.

HIS HONOUR: Over three years ago.

MS WALKER: Indeed. It is an extremely long period of detention, your Honour.

HIS HONOUR: How long are these further processes now predicted to take?

MS WALKER: The Commonwealth has indicated that a two-week period for the plaintiff to make submissions to the Minister is proposed and then an estimate of a three-week decision timeframe. That is in the affidavit of Ms Nance.

HIS HONOUR: In respect of the issue tendered, as I would understand it, by 501, which is an issue different from and narrower than the issue thought to be tendered by PIC 4002.

MS WALKER: That is correct, your Honour, yes.

HIS HONOUR: Namely, in the event the person were allowed to enter or remain in Australia there is a significant risk that the person would represent a danger to the Australian community or a segment thereof.

MS WALKER: That is right, your Honour. That is the subsection of section 501 that the Minister has indicated will be the subject of the consideration.

HIS HONOUR: There having been two security reviews.

MS WALKER: That is correct, your Honour. I should indicate that what is colloquially known as the Stone Review is proceeding and does involve my client in that process as well.

HIS HONOUR: Taking me through the calendar, according to the proposed timetable, gives us an earliest return date of what?

MS WALKER: The proposals suggest 4 July, your Honour.

HIS HONOUR: Is that five weeks hence, or what? It is, is it not?

MS WALKER: Approximately – yes, your Honour.

HIS HONOUR: We are dealing with a person in detention. Days matter.

MS WALKER: Absolutely, your Honour. That certainly is the position of the plaintiff. Having said that, the plaintiff does wish to have a reasonable opportunity to put submissions in relation to the decision that the Minister has now indicated he is proposing to make under section 501. Of course, it might be that the three weeks that has been proposed by the Commonwealth is slightly generous and I should add that Ms Nance’s affidavit suggests that that is only an estimate and that it might be extended

but that is the reason, your Honour, that we would seek to have the matter remain in the list and be ready to be brought back on should there be any unreasonable delay.

HIS HONOUR: Subject to anything that counsel would say to the contrary, I propose to adjourn the matter to a date to be fixed, not earlier than 4 July 2013. Either party may have liberty to apply on not less than 24 hours’ notice in writing to the opposite party. Costs of today should be, I think, costs in the cause, should they not?

MS WALKER: I think that is appropriate, your Honour, yes.

HIS HONOUR: Yes. Mr Donaghue.

MR DONAGHUE: I do not seek to be heard against those orders.

HIS HONOUR: You have heard and will no doubt convey to those instructing you what I have said.

MR DONAGHUE: Yes.

HIS HONOUR: Very well. Those orders are made. Adjourn the Court.

AT 10.38 AM THE MATTER WAS ADJOURNED