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High Court of Australia Transcripts |
Last Updated: 21 July 2014
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Melbourne No M150 of 2013
B e t w e e n -
PLAINTIFF M150 OF 2013 BY HIS LITIGATION GUARDIAN SISTER BRIGID MARIE ARTHUR
Plaintiff
and
MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Defendant
COMMONWEALTH OF AUSTRALIA
Second Defendant
Office of the Registry
Sydney No S297 of 2013
B e t w e e n -
PLAINTIFF S297/2013
Plaintiff
and
MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Defendant
THE COMMONWEALTH OF AUSTRALIA
Second Defendant
Directions
FRENCH CJ
TRANSCRIPT OF PROCEEDINGS
FROM PERTH BY VIDEO LINK TO SYDNEY AND MELBOURNE
ON THURSDAY, 3 JULY 2014, AT 12.29 PM
Copyright in the High Court of Australia
____________________
MS S.M. KEATING: May it please the Court, I appear for Plaintiff M150. (instructed by Allens Lawyers)
MR F. VARESS: I appear for Plaintiff S297, your Honour. (instructed by Fragomen)
MR P.D. HERZFELD: Your Honour, I appear for the first and second defendants in each matter. (instructed by the Australian Government Solicitor)
HIS HONOUR: Now, as I understand it, there are really two issues. One is in relation to the return date of the writs of mandamus which are to issue pursuant to the orders that were made by consent the other day giving effect to the answers to the questions put to the Court on the special case, and secondly the question of costs. Obviously, the most pressing matter is the orders in relation to the writs of mandamus.
First of all, so far as the issue of the writs and service is concerned, it seems to me that the writs should be able to issue no later than close of business tomorrow and that service could be effected simply by delivery to the Australian Government Solicitor’s Office. Does anybody have any difficulty with that, Ms Keating?
MS KEATING: No, your Honour, and our colleagues have been kind enough to advise that they are prepared to accept service on that basis. I think as a matter of conformity, your Honour would need to make an order under rule 25.
HIS HONOUR: No, that is what I propose to do.
MS KEATING: Yes, thank you.
HIS HONOUR: Mr Varess?
MR VARESS: No, your Honour.
HIS HONOUR: Mr Herzfeld, you are content with that?
MR HERZFELD: Yes.
HIS HONOUR: Yes, all right. So the issue then focuses on the question of the return date for the writs. Under rule 25.08.3 the return date is ordinarily 14 days after service unless the Court otherwise orders. I have read the affidavit material and as I understand it the position is that letters have been sent on behalf of the Minister to both plaintiffs inviting comments on the Minister’s possible application of item 866.226, the national interest criterion, to ground a refusal of the grant of protection visas and associated with that the issue of a conclusive certificate pursuant to section 411(3) of the Migration Act.
Now, I understand that in relation to Plaintiff S297 – that is your client, Mr Varess – the latest time for response, on the Minister’s view of it anyway, would be – is it Monday, 7 July? I am looking at five working days from the deemed notification on 30 June.
MR VARESS: That is so, your Honour.
HIS HONOUR: Yes, and in your case, Ms Keating, I think you have 28 days from 30 June.
MS KEATING: That is so. I can tell your Honour two things at this point. The first is that our submissions will be provided by close of business tomorrow, and the second is that we in fact seek that the time for compliance with the writ be shortened from the period set out in the Rules to a period of seven days.
HIS HONOUR: You want seven days. Can you say why?
MS KEATING: Two reasons, your Honour. The first is that some 13 days have elapsed since judgment was handed down on the special case. The second is this: the special case proceeded on the basis of two relevant agreed facts. The first was that Plaintiff M150 had done all things necessary for the purpose of having the Minister consider his application.
The second was that in relation to the first decision made in respect of his application, the only criterion that excluded him from the grant of the visa was those set out in regulation 866.222. That being so, the matters that are raised in the letter are wholly new and somewhat controversial, and we say in light of the agreed facts that were included in the special case, the Minister is in a position to make a quick decision – I withdraw that, a short - - -
HIS HONOUR: Do you accept that criterion 866.226 is a criterion the Minister is required to consider?
MS KEATING: Yes, your Honour.
HIS HONOUR: Now, I notice - - -
MS KEATING: The short point is simply that to the extent there was an agreed fact and the delegate had considered all relevant matters including 866.226, that that is a consideration that had occurred prior to the conclusion of the hearing of the special case.
HIS HONOUR: I noticed the Minister has invited comment from both plaintiffs but I think there was the suggestion that that was done pursuant to section 57 of the Act. Is that section applicable to that kind of comment? It does not seem to relate to information particular to the applicants for visas.
MS KEATING: Indeed, your Honour. The letters do two things. They ask for comments in relation to the particular considerations set out in the correspondence as to the Minister’s concerns in relation to the national
interest, but in addition to that, any particular circumstances of the plaintiffs as they might relate to his Honour’s state of satisfaction. So it is potentially that part of the information that has been asked for does fall - - -
HIS HONOUR: You mean the Minister’s state of satisfaction?
MS KEATING: Yes, indeed.
HIS HONOUR: Yes, well, I think he invited comment on matters personal to them which might impact on that national interest consideration.
MS KEATING: Indeed, he did, and that is potentially a matter to which 57 then applies but, as I indicated to your Honour, we will provide a full response to both the broad national interest criteria and also the specific criteria pertaining to Plaintiff M150 by close of business tomorrow, which we say then means that the timetable set out in those letters is irrelevant for the purposes of determining what should be the return date for the writs.
HIS HONOUR: Yes, all right. Thank you. I will hear from Mr Varess then.
MR VARESS: Your Honour, Plaintiff S297 obviously adopts the position being taken by M150. Equally, there was a similar agreed matter in the special case for Plaintiff S297, the difference being that there is not the 28 day period.
HIS HONOUR: That is because your client is in detention.
MR VARESS: Yes, your Honour. Our position is that the Minister should have until next Thursday to make a decision on our client’s protection visa application and that we would provide a response to the invitation by Monday. Next Thursday would be 14 days from when the proposed writ was brought to the attention of the defendants and correspondence was set alerting them to the fact that 14 days from now we would seek for the writ to be returnable and that the earliest occasion that we would apply to the Court for the relevant time to be shortened such that it would be returnable 14 days from when that notice was given.
That was before the invitation was received. It is a matter of 11 days, the difference between us, 21 July versus the 10 July date we seek, but that is for our client 11 further days in detention in circumstances where he has been in detention already since May 2012. The other aspect of why the Minister should not be allowed the additional time he seeks to make a decision is that we apprehend that the more time there is the more likely there will be further measures taken to prevent our client from being granted a permanent protection visa. You will note that that was a matter
that was claimed by our client during these proceedings, that there would not be a decision on his application until and unless he could be refused or was no longer entitled to the protection visa he sought.
The thing that concerns us further that that may well be the case is that since the Court handed down its judgment in the special case the Minister has made a number of public statements and if I could please read the affidavit of Adnan Adil Hannan of 2 July 2014 and turn to the exhibit, your Honour.
HIS HONOUR: I take the affidavit as read but what is the relevance of the Minister’s public statements to the question I have to determine?
MR VARESS: Your Honour, the relevance is that the Minister has made it clear in those statements that there are a number of contingency measures in place to ensure that persons like my client will not ever be granted a permanent protection visa. The longer the Minister has to make a decision on my client’s protection visa applications, the greater the chance of the current measures and other measures being implemented to reach that policy objective. So we would ask that the Minister be required to make his decision - - -
HIS HONOUR: Well, it is not the function of the Court to become involved in making judgments about policy objectives or making decisions which might either frustrate or facilitate them. The relief that we are talking about requires the Minister to act according to law and that is my only concern. The Minister is required to act according to law in considering and determining your client’s application for a protection visa and that is really all we are here about and it is a question of the timeframe which is appropriate to enable the Minister, with adequate time for you to respond to his letter, to discharge that function.
MR VARESS: Your Honour, the matters that are raised in the invitation are matters which have been known to the Minister since the commencement of these proceedings and, indeed, prior to that time. They are not new matters. They are not matters which the Minister would require extensive time to consider. Indeed, that would require two weeks to consider in circumstances where the plaintiff is going to provide his response within five working days of receipt of the invitation. We would say that receiving the plaintiff’s response three working days in advance of when a decision would need to be made would be reasonable in those circumstances.
HIS HONOUR: Yes, all right, thank you. Yes, Mr Herzfeld.
MR HERZFELD: Your Honour, it may not have been clear, but to make sure that it is, the Minister intends to make these decisions personally, that is the first point - - -
HIS HONOUR: Yes.
MR HERZFELD: - - - and has identified in the letters that a 14 day period is required. Turning to Plaintiff M150’s position, your Honour may recall - - -
HIS HONOUR: When you say “is required” you mean the Minister wants that amount of time?
MR HERZFELD: Yes. Your Honour may recall in relation to Plaintiff M150 that there were consent orders made by the Court quashing the delegate’s refusal decision - - -
HIS HONOUR: Yes.
MR HERZFELD: - - - on 22 April 2014, and the 90 day period prescribed under section 65A for the making of a decision therefore runs from that date. That period does not expire until 21 July 2014, so acting according to law the Minister would not be required to make a decision until that date, in any event. That fits happily with the position which has been put by my friend, Ms Keating, that if the Plaintiff M150 provides his response by close of business tomorrow, 14 days after that by my reckoning is 18 July and that will fit with the 21 July date which, in my submission, would be the earliest date that the Court would set for the return of the writ of mandamus, in any event, because of the position under section 65A. So just to finish that point, the writ should not be made returnable on 9 July, which was the position put by Plaintiff M150, because that would be before the date that the Minister is, in any event, required according to law to make a decision on that application.
HIS HONOUR: Yes.
MR HERZFELD: In relation to Plaintiff S297, the position is a little different. There is no section 65A period that I am going to put to your Honour. The position is simply that having regard to the fact that the decision is to be made personally by the Minister, and also having regard to the fact that though the matters that the Minister has raised for the plaintiff’s comment are ones which the Minister is aware of, the points that the plaintiff may seek to make in response, of course, are not known to the Minister and that is the point of the letter.
In those circumstances, the period of 14 days has been identified as required, in the sense that your Honour put to me a few moments ago, as being necessary to give proper consideration to the plaintiff’s application. I should also add that I am instructed that so far as the particular date chosen by or sought by Plaintiff S297, the Minister is to travel overseas from 8 to 11 July. I apologise that I am telling your Honour that from the Bar table but it is only instructions that I have just received.
HIS HONOUR: Yes, thank you, Mr Herzfeld. Ms Keating, do you have any answer?
MS KEATING: Two short points, your Honour. The first is that in the case of Plaintiff M150, the criterion under 866.226, as we understand it, is the only outstanding criteria, and it strikes us that six days from the date of the receipt of the submissions in relation to Plaintiff M150 is ample time. The second point is this: in relation to 65A, that sets an outer limit for the Minister to make his decision under section 65. It is not necessary that the Minister take the whole of the 90 days that is afforded by section 65. He can make a decision in conformity with 65 - - -
HIS HONOUR: If he has no legal obligation to make the decision earlier than that, what is the basis upon which mandamus would require him to do so?
MS KEATING: We say that the writ of mandamus can sit comfortably within it, your Honour, in that if it prescribes a period shorter than the 90 days set out in 65A, the Minister can in fact comply with both.
HIS HONOUR: Yes.
MS KEATING: Your Honour, I might at this juncture just flag to you one additional point that I will not necessarily go into, depending how your Honour would like to deal with it, but it is this. The writ of mandamus when it issues will compel the first respondent to consider and determine the plaintiff’s application in accordance with law. We foreshadow that if the Minister were to refuse the plaintiff’s application on the basis of the national interest as set out in the correspondence that is before your Honour, we would say that that would not discharge the duty under the writ for the reason that it would not be determining our client’s application in accordance with law. That would necessitate, if that were to occur, further steps by the plaintiff to enforce the writ of mandamus. For that reason, what we - - -
HIS HONOUR: That is an argument for another day, is it not?
MS KEATING: It is, your Honour - - -
HIS HONOUR: Presumably you draw the Minister’s attention to any such consideration in your submissions back to him.
MS KEATING: Indeed, your Honour. I raise it for only one reason and that is this. If it were the case that that occurred, then there is a matter already on foot in this Court, S89, in which substantially the same issues that would arise in the event of the circumstance I am describing and it may be convenient in the event that the Minister proceeds to refuse Plaintiff M150’s application on the foreshadowed grounds, that those matters be heard together. Now, of course your Honour is right that that is a matter for another day. I raise it only because it seems convenient that the matter come back on before you shortly after the return of the writ so that that issue, should it arise, can be appropriately dealt with.
HIS HONOUR: Yes, all right, thank you.
MS KEATING: Thank you, your Honour.
HIS HONOUR: Mr Varess, anything in response?
MR VARESS: Your Honour, just two points just to make it clear that in the case of Plaintiff S297 the relevant 90 day period is long expired, having expired in August 2013.
HIS HONOUR: I understand that.
MR VARESS: At present the Minister is seeking that the Court extend the usual 14 day period by a period of three or four days, whereas the plaintiff is seeking a reduction of the period by approximately seven days. Your Honour, if you are not minded to grant the plaintiff application for a return date next Thursday for a reduction of the 14 day period, we would ask that the period at least not be extended in the manner sought by the Minister and that the usual period of 14 days be permitted. That is all in relation to that matter.
HIS HONOUR: Thank you, Mr Varess. Just bear with me for a moment.
On 20 June 2014, the Court delivered its judgment on questions referred to it by way of special case in separate proceedings brought by Plaintiffs M150 and S297 against the Minister for Immigration and Border Protection and the Commonwealth. The Court was asked whether a determination made by the Minister on 4 March 2014, limiting the number of protection visas to be granted in the year ended 30 June 2014, was invalid. In each case that question was answered in the affirmative. The remaining questions concerned the relief to be granted to each of the plaintiffs, the costs of a special case and the costs of the proceedings.
The Court has identified the appropriate relief in each case as: “writ of mandamus directing the first defendant to consider and determine the plaintiff’s application for a Protection (Class XA) visa according to law.”
In each case, the Court said that the defendants should pay the costs of the special case. In relation to Plaintiff S297, the Court stated that the costs of the balance of the proceeding should be determined by a single Justice. The orders of the Court left unresolved the question of the costs of the balance of the proceeding brought by Plaintiff M150.
On 1 July 2014, I ordered, by consent, in each matter, that:
In the case of Plaintiff S297, I also ordered that the costs of the balance of the proceedings be determined by a single Justice.
Both matters have now come back before me sitting as a single Justice with further orders being sought as to the return date for the writs of mandamus and the costs of the balance of the proceedings.
Rule 25.08.3 of the High Court Rules 2004 (Cth) provides that:
Unless otherwise ordered by the Court or a Justice a writ of mandamus shall be returnable within 14 days after service.
Rule 25.08.4 provides:
Unless otherwise ordered by the Court or a Justice a writ of mandamus shall be served personally.
As to the latter rule, I shall direct that in each case the writ of mandamus issue by close of business tomorrow, 4 July 2014, and that service of the writ of mandamus may be effected by delivery to the Australian Government Solicitor.
The Minister seeks an extension of the return date, in the case of Plaintiff S297 to a date shortly after 21 July 2014, and, in respect of Plaintiff M150, to a date shortly after 18 August 2014. Those extensions are sought because of the Minister’s need to consider the criterion for the grant of a protection visa Subclass 866 set out in clause 866.226 in Schedule 2 of the Migration Regulations 1994 (Cth). That criterion, to be satisfied at the time of decision, is that: “The Minister is satisfied that the grant of the visa is in the national interest.”
On 30 June, the Minister sent to each plaintiff a letter by email, inviting their comments on the possible adverse application of cl 866.226. Each plaintiff was invited to make comments, specifically relating to his personal circumstances, that he would like the Minister to take into consideration in determining whether it would be in the national interest, despite the factors listed in that letter, for him to be granted a Subclass 866 visa. Plaintiff M150 will be providing his comments to the Minister by close of business tomorrow and it is not in dispute that Plaintiff S297 will have to provide his comments by 7 July 2014.
In each case the Minister also foreshadowed the possibility that, if he refuses to grant a Subclass 866 visa, he may issue a conclusive certificate under section 411(3) of the Migration Act 1958 (Cth) on the basis that it would be contrary to the national interest to change the decision or for the decision to be reviewed. Again, each plaintiff was invited to provide comment on that foreshadowed decision.
Each plaintiff seeks a direction that the writ of mandamus issued in his case be returnable by a date earlier than the return date of 14 days prescribed by the Rules.
It is important to observe that the writs of mandamus to be issued pursuant to the Court’s order of 26 June 2014 do no more and no less than require the Minister to consider and determine each plaintiff’s application for a Protection (Class XA) visa according to law. The Migration Regulations, as they presently stand, require the Minister to consider the national interest criterion in cl 866.226. On the other hand, the Court’s answer, in each special case to the question of appropriate relief and the terms of the consent order, suggest that a reasonable return date of the writ can be assessed at least by reference to the date upon which the consent orders were made.
It would be reasonable in the circumstances to direct the issue of writs of mandamus by close of business tomorrow with a return date of 10 July 2014. On the other hand, it is desirable that the Minister, who will decide the applications personally, have adequate time to consider each plaintiff’s response before making a decision.
In my opinion, the writ of mandamus to be issued in each case should be made returnable on 21 July 2014. The orders in relation to the writs that I propose to make are therefore as follows:
Now, on the question of costs, there seems to be some complexities about the debate here. Ms Keating.
MS KEATING: Thank you, your Honour. Does your Honour have the written submissions provided to you in relation to the question of costs?
HIS HONOUR: Yes, just a minute.
MS KEATING: Somewhat optimistically suggested that that was the only issue remaining before your Honour.
HIS HONOUR: Yes, I have your submissions.
MS KEATING: Thank you, your Honour. The Plaintiff M150 is the beneficiary of an order in relation to the costs of a special case.
HIS HONOUR: Yes.
MS KEATING: That leaves the balance of the proceeding. The proceeding concerned three substantive issues and your Honour will see those set out at paragraph 19 of our written submissions. Now, in respect of the first, your Honour will recall that there was some history to the making of an earlier determination under section 85.
HIS HONOUR: I am sorry, just a minute, Ms Keating. You referred to paragraph 19?
MS KEATING: Paragraph 5, I am sorry, your Honour.
HIS HONOUR: Yes.
MS KEATING: Thank you.
HIS HONOUR: Your submissions just go, I think, to paragraph 16.
MS KEATING: Indeed they do.
HIS HONOUR: Yes, go on.
MS KEATING: I am going to deal with it in two sections, your Honour. The first is that part of the balance of the proceeding as dealt with the first determination made by the Minister under section 85 of the Act. Your Honour will recall that that was made on 2 December 2013 and was the subject of challenge in this proceeding as originally brought, and the plaintiff sought a declaration, prohibition and certiorari in respect of that determination.
That determination was subsequently revoked on 19 December last year and by reason of that revocation the plaintiff’s claim was amended to remove the challenge to that first determination. Of course, it was ultimately reinstated when the second cap was put in place and that was ultimately the subject matter of the special case put before the Full Court a short time ago.
Now, what we say in respect of that part of the balance to the proceeding as concerned the challenge to the first cap is this. The plaintiff acted wholly reasonably in bringing that challenge. While the first cap had purported operation, it was a complete bar to the plaintiff being granted a protection visa in the 2013/2014 financial year. The plaintiff had no reasonable alternative but to commence the litigation on that basis.
Now, that is one of the categories that his Honour Justice McHugh referred to in Qin [1997] HCA 6; (1997) 186 CLR 622, where he referred to cases in which a part of a proceeding does not proceed to final determination and in which:
although both parties have acted reasonably, one party was almost certain to have succeeded if the matter had been fully tried.
Now, in this case, your Honour, it necessarily follows from the decision of the Full Court handed down on 20 June that the plaintiff would have been wholly successful in his challenge to the first cap had it ultimately gone to a final hearing, and that is so because the issue for determination is identical to that that was determined by the Court in the special case and, of course, determined wholly in the plaintiff’s favour. For that reason, your Honour, we say that the plaintiff should be entitled to his costs in respect of the whole of the proceeding as it relates to the exercise of power under section 85.
HIS HONOUR: Yes.
MS KEATING: Thank you. That leaves the balance as it relates to the validity of clause 866.222 as it applied to the plaintiff. Now, as regards to that part of the claim, again, that regulation while it was in force was a complete barrier to the plaintiff being granted a protection visa and his interest in bringing that claim was to have that criteria removed from application to him in order that he might be granted the visa sought.
Again, as it was a total bar to him being granted the visa, he acted reasonably in bringing that challenge by reason of its prohibitive effect on him, and again, he had no reasonable alternative but to do so. Your Honour will recall, and my learned friend took you to it a short time ago, that the Plaintiff M150 is the beneficiary of an order for certiorari in relation to the first decision made in relation to his application and that - - -
HIS HONOUR: That consent order was based not upon any concession as to the validity of the relevant regulation but rather as to jurisdictional error in its application, was it not?
MS KEATING: That is so, your Honour. The jurisdictional error arose by reason that the decision maker erroneously found that the plaintiff was an unauthorised maritime arrival when he did not, in fact, have that status. That was a jurisdictional error that went directly to the application of clause 866.222 to the plaintiff. The relevance of him being a UMA was that one of the disentitling criteria in that clause then applied to him. The effect of the certiorari that issued was that, by reason of the jurisdictional error identified, the decision was quashed.
Now, as I said, your Honour, that jurisdictional error went directly to the application of clause 866.222 to the plaintiff and once that concession had been made by the defendants, the plaintiff achieved substantially the whole of the relief that he was seeking and consequently pressed that part of his claim no further. For that reason, your Honour, it can be distinguished from the type of case that arises where there is an external event that means that it would be futile or unnecessary for the plaintiff to press for the relief sought. In that type of proceeding, the ordinary course would be for there to be no order as to costs. That is not what occurred here. The plaintiff was able to achieve substantially the whole of the relief that he sought by reason of a concession, appropriately made by the defendants, as to the existence of jurisdictional error.
It falls, your Honour, within another of the categories described by his Honour Justice McHugh in Qin where he said that such a case arises where it appears that a defendant has acted unreasonably in exercising a power and the plaintiff had no reasonable alternative but to bring the proceeding. The unreasonable exercise of power arises because of the
jurisdictional error I have identified and, of course, the plaintiff did have no reasonable alternative but to bring the proceeding because it was a complete bar to him being granted the visa that he sought. For that reason, your Honour, we say that the plaintiff should be entitled to the benefit of a cost order for the whole of the proceeding as it relates to his challenge to clause 866.222.
HIS HONOUR: But what is the actual order that you are seeking?
MS KEATING: An order that the defendants pay the cost of and incidental to the whole of proceeding in 150.
HIS HONOUR: Well, you have already got a costs order in relation to the special case, have you not?
MS KEATING: Indeed, your Honour, we do.
HIS HONOUR: All right. Yes, Mr Herzfeld.
MR HERZFELD: Your Honour, I am happy to address your Honour now but some of the matters that I will address will cover both proceedings, so it may assist your Honour to hear from my friend, Mr Varess, first, but I am happy to address your Honour if that is convenient.
HIS HONOUR: All right, I will hear from Mr Varess then, thank you. Yes, Mr Varess.
MR VARESS: Your Honour, Plaintiff S297 also relies upon the decision in Lai Qin, but before I turn to that decision, if your Honour has the supplementary special case book before you, which is the smaller book that was filed, on page 16 there is the - - -
HIS HONOUR: Just wait a minute, Mr Varess, I need to get the book.
MR VARESS: Yes, your Honour.
HIS HONOUR: Yes, all right, page 16?
MR VARESS: Your Honour, page 16, at paragraphs 82 to 86 which are of the further amended statement of claim which was filed in this proceeding, you will notice, your Honour, that those paragraphs are not single or double underlined. They are the original basis upon which the plaintiff challenged the December 2013 determination, the cap, the first cap.
Your Honour, those reasons for challenge, those grounds, remained in the statement of claim from beginning until now and they were, indeed, the very reasons which the Court found the March 2014 determination to be invalid. So, to that extent, any work done in relation to the challenge to the December 2013 determination would have needed to be done, in any event, and formed the basis of the challenge to the March 2014 determination.
In relation to the challenge to the UMA regulation as it has been called in this proceeding, if your Honour turns to page 20 of the same book, there is paragraphs 111 and 112, those paragraphs were originally the basis of a challenge to the UMA regulation. Over the previous page you will see that the UMA regulation has been struck through and in its place a reference has been made to the March 2014 determination.
So far as the challenge to the March 2014 determination related to inconsistency with the sections which are identified in paragraph 111, again they were matters which the plaintiff would have otherwise needed to do for the purpose of the March 2014 determination, in any event. So, again, to that extent, it cannot be said that the March 2014 determination, the successful challenge to that is so discrete from the balance of the proceedings. In fact, the improper purpose aspect of the challenge which was brought by Plaintiff S297, all the work that was done in relation to the challenge to the December 2013 determination provided appropriate background and context and assisted in the challenge to the March 2014 determination.
If only for those reasons, the plaintiff contends that he should be awarded his costs for the balance of the proceedings. If that is not accepted and we turn to the decision of Lai Qin to see if that can be applied in the plaintiff’s favour in this case, so it becomes necessary to consider whether or not the Minister acted so unreasonably as to leave no alternative to litigation, as well as whether or not the plaintiff was almost certain to succeed.
The almost certain to succeed aspect, if I could turn to that first, again, as I have identified in relation to the December 2013 determination, the very error that was claimed in relation to that was accepted in relation to the March 2014 determination. So to that extent, it cannot be said otherwise then the plaintiff was almost certain to succeed. Of course, there is a further error which was obvious in relation to the December 2013 determination and that was that the cap was set at a number which was over the number of visas that had already been granted, which is a matter that has been conceded in the documents before your Honour in the special case on page 459 of this special case.
HIS HONOUR: So far as the UMA regulation was concerned, you were never the subject of a decision under that regulation, were you?
MR VARESS: No, your Honour.
HIS HONOUR: You were at risk but you were not actually the subject of a decision.
MR VARESS: Your Honour, in fact we successfully avoided that risk. If I could ask your Honour to turn to - - -
HIS HONOUR: Yes, I know, you have got an undertaking from the Minister.
MR VARESS: Yes, your Honour. From the commencement of the proceedings until the time shortly after the UMA regulation was disallowed, we were subject of an undertaking which prevented without notice the application of the UMA regulation to our client. Once the UMA regulation was disallowed, having successfully avoided its application, we released the Minister from that undertaking as well as removed the challenge to the UMA regulation from our statement of claim.
HIS HONOUR: Well, on the face of it, that is a matter the outcome of which was determined by external events, namely the disallowance of the regulation beyond the control of the Minister, and accepting the undesirability of trying to embark upon some sort of hypothetical assessment of your chances of success, it would seem to me that as to that aspect of the case at any rate, being a discrete matter, the best course would probably be that each party bear its own costs.
MR VARESS: Your Honour, as I have indicated, our position is that we were certain to succeed in relation to that. Obviously, because of the proceedings in S89, your Honour would not likely make a finding of that sort at this point, but leaving S89 aside, we were actually wholly successful in relation to our challenge to the UMA regulation because our client prevented its application to him by obtaining appropriate undertakings and had those undertakings not been granted applications for interlocutory and interim injunctions would have been made and perhaps a finding would have been made earlier in relation to those matters.
So to the extent of whether or not we were certain to be successful, we would say that in light of the inability or decision to not apply in the circumstances to our client the UMA regulation we were certain to succeed. Of course, if I can turn to address your Honour on the matter of whether or not the Minister acted unreasonably, if I may, your Honour.
HIS HONOUR: Yes.
MR VARESS: Our contention is that for - - -
HIS HONOUR: What is this relevant to?
MR VARESS: The relevance of this is that in the decision of Lai Qin, it was identified that if the defendant acts so unreasonably as to leave the plaintiff with no alternative but to commence litigation, that even if there is not a hearing on the merits, the plaintiff may be entitled to costs of the proceedings. We would say that there are - - -
HIS HONOUR: Well, you say the Minister has acted unreasonably in exercising power under section 85. Now, you won on section 85 and you say, quite reasonably, that but for the revocation of the December determination you would have won on that. That deals with the question of the cap. Now, is there any other matter to which the Minister’s alleged unreasonableness is relevant?
MR VARESS: We would say there are six matters, your Honour. Firstly, that the Minister failed to grant - - -
HIS HONOUR: No, I am not asking about the ways in which the Minister was unreasonable. I am asking about the aspects of the proceedings outside the framework of the special case, in respect of which you say you should get costs because the Minister acted unreasonably. Now, let us put to one side the temporary cap, you won on that.
MR VARESS: Yes.
HIS HONOUR: How does it bear on any other aspect of the case?
MR VARESS: Your Honour, what I was intending to say was that we consider that in the circumstances where there was community based processing arrangements in place in circumstances where our client was referred to the Minister for consideration of grant of a bridging visa, for favourable consideration of the grant of a bridging visa, the decision to not grant him a bridging visa and the decision to not provide any reasons for that, despite there being three inquiries in that regard, was not reasonable. Again, our client was in detention for over two years, our client was subject of a favourable referral from the Minister’s department for the grant of a bridging visa and, your Honour, that referral is set out - - -
HIS HONOUR: I am sorry, I do not understand. What relevance does that have to the scope of any costs order in relation to the balance of the proceedings?
MR VARESS: Your Honour, if our client had been granted a bridging visa he obviously would not be in immigration detention and perhaps in that
circumstance he may have had an alternative, or may have decided not to challenge.
HIS HONOUR: Well, you are asking me to speculate on, as it were, counterfactuals.
MR VARESS: Your Honour, I do not have more to say about the matter of the bridging visa. The other factors that I would say demonstrate unreasonableness was, first of all, the failure to make a decision on our client’s protection visa application within 90 days by 15 August 2013 which was a date before the December 2013 determination and before the UMA regulation, indeed, well before those matters. Had that obligation been reasonably complied with, our client would not be in the circumstances he was.
With regards to improper purpose and the improper purpose arguments, we say that the exercise of power to make the December 2013 determination and to cause the UMA regulation to be made, that those powers were exercised for an improper purpose, leaving our client with no alternative but to commence litigation. I will not go into those matters because your Honour has heard extensive submissions in that regard already in the special case and it is a matter that the Court did not make a ruling on or did not see it necessary to make a ruling on in light of having found the determination already invalid.
The only last point I would make is that following on from the Court’s decision on the special case, the Minister has made a number of remarks in relation to the Court’s decision being - - -
HIS HONOUR: Well now, what has that got to do with the costs?
MR VARESS: Well, the fact that the decision of the Court was unexpected suggests that perhaps it should not have been defended in the first place. The fact that it was a tactical measure perhaps suggests that it should have been made in the first place. This is - our client is in immigration detention and a tactical measure to prolong that detention is not reasonable in the circumstances, your Honour. That would be the plaintiff’s submission.
HIS HONOUR: Yes, all right. Thank you, Mr Varess.
MR VARESS: Yes, your Honour.
HIS HONOUR: Yes, Mr Herzfeld.
MR HERZFELD: Thank you, your Honour. As your Honour knows, the special case concerned the March 2014 cap and there were two other issues ventilated. First of all, the validity of the UMA regulation, and second of all, the validity of the December 2013 cap. Can I take those issues in turn and then make some brief submissions about the additional matters that my friend, Mr Varess, has just raised.
HIS HONOUR: Well, can you please focus first upon M150. I would like to take these two cases distinctly. What is your submission in relation to M150?
MR HERZFELD: Yes. In relation to M150 so far as the UMA regulation is concerned, it is true that much work was done on both sides concerning the UMA regulation, including pleadings and submissions to prepare for the hearing on 7 March, and as your Honour will recall that was vacated in circumstances, as I think your Honour put it, to give greater clarity to the position of the disallowance motion which was then scheduled for 27 March and that, in fact, led to the disallowance of that regulation. None of that was in the control of the defendants and there has been no determination on the merits of the competing cases put in relation to the UMA regulation and as your Honour knows that is listed for hearing in another matter in August.
HIS HONOUR: Nevertheless, Mr Herzfeld, I suppose it is not unusual that you get in litigation perhaps a mix of issues thrown up and the successful party may win on some, lose on some, or it may be that some issues are not determined for a variety of reasons and then it becomes a matter in the discretion of the Court as to whether it, as it were, slices out some of the issues insofar as the application of costs orders are concerned. Now, so far as M150 is concerned, my impression is that they have been substantially successful, including in relation to the grant of certiorari which went, of course, not to the validity of the regulation but to its application in their particular case, thus the question of validity, as it were, fell away at that point. Why should they not have the whole costs of the proceedings? This is just in 150 I am talking about.
MR HERZFELD: Yes, I understand, your Honour. Your Honour, in a case where a plaintiff obtains substantially the relief as a result of consent orders which constitute a capitulation to the challenge which has been brought, namely, an acceptance of the arguments that have been made, what your Honour puts to me would have much force. But, with respect, in a case such as M150 where the reason for the consent orders was completely unconnected with any of the matters raised in the challenge to the UMA regulation, it is really not accurate to characterise the matter in that way.
Nothing in the consent orders justified or had any relationship to the expenses which were incurred in relation to the challenge to the UMA regulation. So the fact that the order that they sought was ultimately obtained by consent does not demonstrate, if I can put it this way, a win by Plaintiff M150 which bears upon or justifies the expense in relation to the UMA regulation challenge. So my submission to your Honour is that the position of M150 is relevantly identical to the position of S297 because the grant of those consent orders does not lead to a distinguishment between the positions.
HIS HONOUR: Yes.
MR HERZFELD: That is really underscored by the fact that the point upon which Plaintiff M150 succeeded, if I can put it that way, was not – when I say succeeded, I mean justified the consent orders, was not one which had been identified by Plaintiff M150 because if it were it would have been a simple point that would not have necessitated any of the challenge to the UMA regulation.
So in both cases – and I appreciate your Honour’s question to me sought to distinguish between the two cases – in both cases, in my submission, the UMA challenge really fell away because of external events relating to the disallowance motion, and for that reason in both cases the appropriate disposition in relation to the UMA regulation challenge is that each party bears its own costs because it is, in truth, very much a discrete issue from that which was the subject of the special case, namely, the regulation-making power under the Migration Act on the one hand versus the construction of section 65 and related provisions on the other.
They were the submissions that I would seek to put about the UMA regulation. Can I turn to the December cap? In light of the reasons of the Full Court, plainly it was invalid, but your Honour will know that the proceedings in S297 were commenced on 16 December and in M150 on 19 December, both involved challenges to the December cap which was then revoked on 19 December. That was not in response to these proceedings and in the affidavit of Louise Buchanan filed 2 July in M150 your Honour should see exhibit LBB1.
HIS HONOUR: Yes.
MR HERZFELD: Your Honour will see there the submission which led to the revocation of the December cap and your Honour will see that the reason for the revocation of the December cap was to allow processing to resume after the UMA regulation had been made, and that was the reason for the revocation of the cap. That then led within days to the amendment of the pleadings so as to remove the challenge to the December cap, and those pleadings nevertheless were then substantially reinstated when it came to the challenge to the March cap and the cost of the reinstated pleadings will therefore form part of the costs of the special case.
So in truth, in my submission, there will be little or no costs associated independently with the challenge to the December 2013 cap that are not already covered by the costs order in relation to the special case and, in my submission, your Honour should not make a specific order relating to that issue because it will become extremely difficult to untangle what those costs orders are and in the result will end up being very small.
Can I make some very brief observations about the additional matters raised by my friend, Mr Varess, at the conclusion of his submissions to your Honour? The basic submission relating to unreasonableness is that it cannot be said that the Minister has acted unreasonably, at least in relation to the UMA regulation. I will not - - -
HIS HONOUR: I do not need to hear you on that.
MR HERZFELD: No, I was about to say I will not canvass that any further. In relation to the UMA regulation, it cannot be said that the challenge was almost certain to succeed. As your Honour knows, there is a live challenge due to be heard on that point and the obtaining of an undertaking does not demonstrate that the challenge was almost certain to succeed. There is a further matter - - -
HIS HONOUR: The challenge is based upon, at least in part, the operation of the Legislative Instruments Act, is it not, and the relationship - - -
MR HERZFELD: In relation to the UMA regulation, yes.
HIS HONOUR: Yes, and the relationship between that regulation and the earlier regulation in relation to temporary protection visas and its disallowance within a period of six months, I think.
MR HERZFELD: Yes. In part, it is based on that. In part, it is based on the regulation-making power under the Migration Act; that is so. The final matter I wanted to address is that in Plaintiff S297’s written submissions there are some submissions about public interest litigation and - - -
HIS HONOUR: Normally they are put up if you lose the case, I think.
MR HERZFELD: That was the one observation that I was about to make. I am not aware of a case in which they are put up to justify getting a costs order in your favour where it is not otherwise justified and, in my submission, in this case it is not otherwise justified. Unless there is
anything further that I can assist your Honour with, those are the submissions of the defendants.
HIS HONOUR: Thank you. Ms Keating. I think, Ms Keating, the main issue for you is the question of whether there should be a carve-out for the challenge to the UMA regulation.
MS KEATING: Indeed, there is one short point in reply on that matter only, your Honour. My friend raises the question of the disallowance as being the operative factor that ultimately led to that issue falling away. In response to that we say this. The focus needs to be on what the interest was of the plaintiff in bringing the proceeding. As I set out to your Honour earlier, Plaintiff M150’s interest in bringing that part of the proceeding was to ensure that the criteria in 866.222 did not apply to him with the effect that he was rendered ineligible for the grant of a visa.
At the time the proceeding was brought no decision had been made and so there was only prospective operation. For that reason – and as your Honour noted earlier – the proceeding threw up a whole range of matters, the ultimate disposition of which will occur in S89, but what then ultimately occurred was that a decision was made in relation to the plaintiff’s application for a visa – he was refused - and at that point the criteria took effect and they prevented him from being granted the visa.
What followed then was the concession by the defendant that that decision had been made contrary to law, the jurisdictional error I took your Honour to earlier, as a consequence of which the plaintiff ultimately got the whole of the relief that he sought and his interest in bringing the proceeding was ultimately vindicated. For that reason, your Honour, litigation takes many courses and many paths, but Plaintiff M150 was wholly successful in achieving the outcome that he set out to achieve and the ultimate success was not caused by an external factor but by something inherently and intrinsically connected to the conduct of the proceeding.
HIS HONOUR: But that was an error which was quite unrelated to the validity of the regulation, was it not? It is an error that could have been raised on an inspection of the regulation and the plaintiffs’ status.
MS KEATING: That is so, your Honour, but the issue was – as I just indicated – at the time the challenge was brought the plaintiff’s interest in the proceeding, which was to have the criteria not applied to him with the relevant disentitling effect, was prospective, and ultimately when it took effect it took effect in a particular way, and the effect of the jurisdictional error that existed was the criteria, or part of the criteria, applied to him with the disentitling effect that he was seeking to be relieved from.
So the distinction can be drawn between that circumstance, which means that there is ultimately no final hearing on the merits, and the circumstance, for example, of the disallowance which was a matter wholly outside the direct personal interest of the plaintiff, and it is that distinction that is picked up in Qin and that distinction that we say applies directly to these circumstances.
HIS HONOUR: Yes, thank you, Ms Keating. Yes, Mr Varess.
MR VARESS: Your Honour, just three points. First of all, this matter - the challenge to the UMA regulation was listed for a Full Court hearing and three days prior to that Full Court hearing the March 2014 determination was made and that caused that Full Court hearing to be vacated. Had the March 2014 determination been made well in advance of that Full Court hearing, then the hearing may have been vacated and the parties would not have gone to the expense of preparing submissions in relation to that hearing and, indeed, travelling to Canberra for that hearing. The timing of the making of that determination is what has caused the UMA regulation to not have a final hearing. The disallowance is not the matter that caused that final hearing not to occur because the disallowance was not until later in the month of March.
In relation to the matter of relief, in the case of Plaintiff S297 the mandamus which has been granted has been sought since 24 December 2013, very early in the proceedings at a time when the March 2014 determination had not been made, and to that extent the relief that was sought from the very beginning is the relief that has been granted. It is not a case where we have abandoned a proceeding or given up claims for relief. We have obtained the relief we originally set out to obtain.
Finally, your Honour, if in light of the pending matter of S89, if your Honour is not minded to grant costs in relation to the UMA regulation, Plaintiff S297 would be content for the issue of costs in Plaintiff S297, so far as the UMA regulation is concerned, for your judgment to be reserved pending a judgment being handed down in the matter of S89. Thank you, your Honour.
HIS HONOUR: I am not inclined to delay making an order as to the costs in these matters, pending the outcome of proceedings in Plaintiff S89/2014 v Minister for Immigration and Border Protection, nor to engage in some proleptic process of assessing the chances of success of a challenge to the validity of the Migration Amendment (Unauthorised Maritime Arrivals) Regulation 2013 (Cth).
It seems to me that that particular issue in each case fell away for reasons extraneous to the conduct of the parties, and that as an event which in a sense was beyond the control of all parties, it is a matter in respect of which the parties should bear their own costs. The order I therefore propose to make in each case is as follows:
In addition to the costs of the special case, the defendants are to pay the plaintiff’s costs of the balance of the proceedings, save as to the challenge to the validity of the Migration Amendment (Unauthorised Maritime Arrivals) Regulation 2013 (Cth).
Hopefully the parties will be able to agree an appropriate basis to reflect that excision in the costs rather than having to slug it out in front of a taxing officer. I do not think there are any further matters. The Court will now adjourn.
AT 1.42 PM THE MATTER WAS ADJOURNED
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