Plaintiff S205/2013 v Minister for Immigration and Border Protection [2013] HCATrans 306 (12 December 2013)

Last Updated: 18 December 2013

[2013] HCATrans 306

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S205 of 2013

B e t w e e n -

PLAINTIFF S205/2013

Plaintiff

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Defendant

Directions hearing

BELL J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON THURSDAY, 12 DECEMBER 2013, AT 9.30 AM

Copyright in the High Court of Australia

MR M.A. ROBINSON, SC: If the Court pleases, I appear for the plaintiff with my learned friend, MR L.J. KARP. (instructed by Legal Aid Commission of NSW)

MS A.M. MITCHELMORE: If the Court pleases, I appear for the defendant. (instructed by Australian Government Solicitor)

HER HONOUR: Yes, Mr Robinson.

MR ROBINSON: Your Honour, we move on a summons for directions filed on 8 November this year, and I take it your Honour has the submissions that we have filed in relation to that matter.

HER HONOUR: Yes, I do. In addition, I understand it is sought to move on an amended statement of claim. Is that the position?

MR ROBINSON: That is true. I might hand it up in one package if your Honour pleases.

HER HONOUR: Yes, by all means.

MR ROBINSON: I seek leave to file in Court an amended statement of claim and the affidavit of Elizabeth Mary Biok of 11 December. That supports the application, basically on the delay question, your Honour.

HER HONOUR: Yes, this is prayer for relief under 486A of the Act.

MR ROBINSON: Correct, your Honour.

HER HONOUR: Yes. Is there any difficulty with that, Ms Mitchelmore?

MS MITCHELMORE: There is no difficulty with the documents being filed, your Honour, no.

HER HONOUR: Yes, all right. Yes, you have that leave, Mr Robinson.

MR ROBINSON: Thank you. While I am doing this, a second affidavit of Ms Biok of Legal Aid sworn, again, on 11 December going to the 78B matters, your Honour.

HER HONOUR: Yes, very well. Yes, thank you. Now, Mr Robinson, you would have seen the submissions filed by the defendant.

MR ROBINSON: Yes, your Honour.

HER HONOUR: The contention being that there is no good reason why this should not be remitted.

MR ROBINSON: Well, I have a few things to say to that, your Honour.

HER HONOUR: Well, now might be a good time to say them.

MR ROBINSON: Indeed. Firstly, this matter is of some significant public importance and your Honour has seen our written submissions in relation to that. It involves pretty much everyone in immigration detention in Australia. They only need to commit the smallest offence, for example, stealing a paper clip, and they are liable to deportation and possible refoulement while this law is in place. So a ruling on the validity of the new section, 501(6)(aa) which commenced in April of 2011, we say it is interest of the Minister as well as our client’s interest to have the validity of this section finally determined and so, sooner rather than later, whilst my client and whilst all the other people, the subject of these deportation orders, are waiting in limbo.

HER HONOUR: One challenge is based on an asserted absence of power?

MR ROBINSON: Yes, your Honour. We say that the Commonwealth does not have the power to render a minor offence, an inconsequential offence, to be so serious as to deem the person to be bad character for the purposes of deportation decisions. That only then leaves the Minister’s discretion, and that is what occurred here. My client twice spat in the face of a security officer in immigration detention. He was convicted of those crimes and he has now been ordered to be effectively held in limbo and to ultimately be deported.

HER HONOUR: Yes, I think I understand that factual background, Mr Robinson. I am having considerable difficulty understanding why this matter should not proceed in the usual way. As the defendant points out, the Federal Court has jurisdiction. In the ordinary course, one would expect the matter to proceed before that court and then you would have your avenues, including an application for special leave should that necessity arise.

MR ROBINSON: I am only warming up, your Honour.

HER HONOUR: Very well. What is the good point?

MR ROBINSON: The next point is that the matter consists of a constitutional question. It is a discrete question, and there is also a small judicial review point that travels with it. A special case under rule 27.8 or a

reference to the Full Court under section 18 of the Judiciary Act would not be problematic because the facts of the matter are uncontentious and readily ascertainable. The facts are very likely to be agreed and the questions of law agreed so the matter can be readily sent up to the Full Court.

The underlying issue here is Australia’s compliance with the international conventions and particularly the Refugee Convention and the protocol, and these are not matters that, with respect, ought to lie in the courts at various levels for a number of years. They are matters which are appropriately dealt with sharply and quickly. An alternative, your Honour, might be, if your Honour were to consider sending the matter back or sending the matter to the Federal Court, is to only send the judicial review point back and to leave the constitutional point in this Court.

HER HONOUR: The Federal Court is well able to deal with the constitutional point and you have your avenues open to you in the event the determination is not to your liking, Mr Robinson.

MR ROBINSON: I hear your Honour. I cannot say any more than I have.

HER HONOUR: Yes, I understand, Mr Robinson, but some points not lacking in cogency are made in the defendant’s submissions. In my view, it is an appropriate matter for remittal, and unless there is something further you want to put, Mr Robinson, it seems to me that that is the course to be followed. Now, I will give you leave to – I think I have given you leave to file in Court your amended statement of claim. There is no difficulty, the Federal Court has power to make an order extending time.

MR ROBINSON: It will have this Court’s powers, yes, your Honour.

HER HONOUR: Yes. That being so, is there any reason why I should not make the directions that are proposed in the defendant’s submissions? It is paragraph 9 and then subparagraphs 1 to 4. I think Mr Karp might be just querying the issue concerning the power of the Federal Court to extend the 35-day time limit. As I would apprehend it, under section 477A(2), the court does have a power in terms relevantly similar to the power conferred on this Court under 486A(2). Ms Mitchelmore, is that your understanding or not?

MS MITCHELMORE: It is, your Honour. The only difficulty may be this.

HER HONOUR: Yes.

MS MITCHELMORE: It is in relation to the Court’s power to remit. Under section 44 of the Judiciary Act there has to be a matter and there was

a decision of Justice Gummow in the matter of Ahmed where there was a question – there was an extension of time application in that case and my recollection is that his Honour held that in order to do something with the matter that the extension of time had to be granted first, so that there was a matter that could perhaps then be remitted. So it may be a matter that your Honour has to deal with in terms of extending time.

HER HONOUR: That might be the prudent course. Thank you for that, Ms Mitchelmore.

MS MITCHELMORE: Perhaps, your Honour, while I am on my feet, if I could indicate the Minister’s position on the extension of time.

HER HONOUR: Yes, that would be of assistance, thank you.

MS MITCHELMORE: Your Honour, the extension of time is not opposed. Obviously the considerations the Court looks at is the reasonable explanation for the delay and the merits of the case. The Minister does not dispute, in light of the plaintiff’s evidence, that there is a reasonable explanation for the delay. It is not a lengthy delay. As to the merits, the Minister’s position is that the grounds are weak, at least one of them. Certainly the question of whether there is an absence of Commonwealth legislative power appears to the Minister to be considerably difficult. I have heard what my friend says this morning, but in circumstances where this is one of five cases that raises the same issues and all of those other matters are within time, the Minister considers it is an efficient use of this Court’s time to not oppose the extension.

HER HONOUR: Thank you for that, Ms Mitchelmore. Mr Robinson, it does seem that perhaps the prudent course would be for me to deal with your claim for an order extending time.

MR ROBINSON: We would be grateful.

HER HONOUR: Yes. Well, in light of the helpful submissions by Ms Mitchelmore on that and the indication of the Minister’s attitude, taking into account the matters set out in the affidavit of Elizabeth Mary Biok made on 11 December 2013, it is accepted that an adequate explanation for the delay in commencing these proceedings has been given. Taking into account Ms Mitchelmore’s submissions, I am of the opinion that it is in the interests of the administration of justice to make an order under section 486A(2) of the Migration Act 1958 extending the time in which to bring this proceeding to - - -

MR ROBINSON: To 6 November, your Honour.

HER HONOUR: - - - 6 November 2013 and I so order.

MR ROBINSON: If the Court pleases. Your Honour, we are happy with the draft orders that are proposed in the respondent’s submissions.

HER HONOUR: Thank you, Mr Robinson. I make the following further orders:

1. The matter be remitted to the Federal Court of Australia, New South Wales District Registry pursuant to section 44(1) of the Judiciary Act.
   
2. The matter proceed in the Federal Court as if the steps taken in the matter in this Court had been taken in the Federal Court.
   
3. The Deputy Registrar of this Court forward to the proper officer of the Federal Court photocopies of all documents filed in this Court.
   
4. The costs of the summons filed by the plaintiff on 6 November 2013 be costs in the cause.
   

Thank you.

MS MITCHELMORE: If the Court pleases.

MR ROBINSON: If the Court pleases.

AT 9.43 AM THE MATTER WAS ADJOURNED