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High Court of Australia Transcripts |
Last Updated: 11 September 2014
IN THE HIGH COURT OF AUSTRALIA
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
Summons
FRENCH CJ
TRANSCRIPT OF PROCEEDINGS
FROM CANBERRA BY VIDEO LINK TO SYDNEY AND MELBOURNE
ON MONDAY, 8 SEPTEMBER 2014, AT 2.13 PM
Copyright in the High Court of Australia
MR S.B. LLOYD, SC: I appear with MR J.B. KING for the plaintiff. (instructed by Fragomen)
MR P.D. HERZFELD: If it please your Honour, I appear for the defendants. (instructed by Australian Government Solicitor)
HIS HONOUR: Yes, Mr Lloyd.
MR LLOYD: Has your Honour received the plaintiff’s outline of submissions with the two attachments?
HIS HONOUR: Yes, I have. I gather from that that you want to, in effect, plead to the return?
MR LLOYD: In substance, yes. The rules do not seem to quite have a procedure, but the procedure we have adopted seemed to be popular in the middle of the 19th century and there does not seem to be much since then that has picked up on this issue. I understand the Commonwealth is not concerned or upset or disagreeing with the procedure in that respect. There are, however, two areas of disagreement in relation to the proposed special case.
HIS HONOUR: Yes.
MR LLOYD: Can I direct your Honour’s attention to that?
HIS HONOUR: Just before we go to a special case, let us consider the scope of the plea to the return. There seem to me to be two contentions involved in that plea. One is that the Minister did not determine the application according to law because he refused it upon the basis of a national interest criterion which the plaintiff says is invalid. Secondly, if it were invalid, then the Minister either was or should be taken to have been satisfied that all other criteria for the grant of a protection visa engaging his obligation under section 65 were met. That is the aspect of the pleading that I would like to explore a little further with you. What is the basis upon which that is a proper answer to the return?
MR LLOYD: In the special case, in paragraph 15, it is agreed that – in substance, we say that the only criterion that my client failed on was the national interest criterion and, therefore, we say, if that national criterion was invalid the Minister was satisfied of everything he had to be satisfied of and having been satisfied of those things under section 65, a duty arises to grant the visa.
HIS HONOUR: Well, that depends upon whether or not it is common ground that the Minister was satisfied of all other criteria. If that were the case and the national interest criterion were invalid then, presumably, that would base your claim for peremptory mandamus, would it not?
MR LLOYD: Yes, a peremptory mandamus to compel the Minister to - - -
HIS HONOUR: To grant.
MR LLOYD: - - - to grant the visa, yes.
HIS HONOUR: Now, is there a dispute about the Minister’s satisfaction in relation to all other criteria?
MR LLOYD: Not that I am aware of.
HIS HONOUR: Perhaps I had better clear that up with Mr Herzfeld first. Mr Herzfeld.
MR HERZFELD: Your Honour, the answer, I think, that I can give to your Honour now is that paragraph 15 of the proposed special case is not one which is in controversy.
HIS HONOUR: So that the only thing preventing the grant of the visa or mandating its refusal from the Minister’s perspective was clause 866.226?
MR HERZFELD: Your Honour, I think the answer to that question is yes. The only reason for my hesitation is that that is not, as your Honour is perhaps picking up on, the way in which paragraph 15 is expressed. It is expressed by identifying particular things that the Minister was satisfied of, and I am not able, as I stand here, to confirm to your Honour whether that is an exhaustive list or not. I think it is intended to be, but I cannot confirm that as I stand here now.
HIS HONOUR: If the special case were to go forward, or – let us start with the pleading. If the pleading were able to be made on the non-contentious basis that all criteria other than the national interest criterion were satisfied, then the question whether the Minister had decided the application according to law would turn solely on the question whether or not he was correct in his assumption that the clause which he expressly adopted, clause 866.226, was valid.
MR HERZFELD: That is so, and as I understand it, that is the intention of paragraph 15, but I do not want to confirm to your Honour something that I cannot confirm to your Honour, and I am slightly inhibited by being
in Melbourne. I will attempt, by the magic of email, to try to clarify that during the rest of the proceedings this afternoon.
HIS HONOUR: Yes. If that is the case, then the rest of the pleading in relation to what the Minister was or should have been satisfied of in a sense falls away because it is not contentious. Presumably, we are not getting into a question of whether the Minister should or should not have been satisfied that it was in the national interest to grant the visa.
MR HERZFELD: I think I have said probably all I can to your Honour on this topic without seeking some instructions which, as I said, I will seek to do.
HIS HONOUR: Yes, I understand that. The latter part of that last question was really one directed to Mr Lloyd, I think.
MR LLOYD: Thank you, your Honour. I should just indicate that there are two tiers, as it were, to the plaintiff’s argument. The first one is that the national interest criterion is wholly invalid and that is referred to in the plea from paragraphs 8 to 13. Then paragraphs 14 to 21 deal with the notion that it is invalid only to an extent, but to the extent that it applies to my client, so it is put slightly differently.
In the second one, to summarise it, the essence of it is that the legislation has in substance exhaustively stated the position of unauthorised maritime arrivals and the extent to which they are excluded from applying, and the extent to which they are required to be sent out of Australia. It does not allow for the national interest to come back in later and exclude something. For example, if the Minister has - - -
HIS HONOUR: I understand the position. The point you make is that this is a second-string argument as to invalidity, confined in its application to unauthorised maritime arrivals?
MR LLOYD: That is so.
HIS HONOUR: Yes, all right. The first-string argument is that it is invalid because - in its application to protection visas generally.
MR LLOYD: Yes. The first one is a repugnancy with 501. The second one is, in substance, repugnancy either with other sections or more limited inconsistency.
HIS HONOUR: Yes, okay. What you are seeking – at this stage, you have not filed the plea to the return.
MR LLOYD: Your Honour, I think we tried to, but it was refused because it did not fit into the Court’s Rules, so we were seeking leave in that. If I might just advise your Honour as to where the difficulties lie on the proposed special case, because I think the parties would benefit from your Honour’s guidance on these two issues. In relation to paragraph 4 – the only two sticking points are one bit of paragraph 4 and one of the questions. In relation to paragraph 4, we propose that the last sentence stay in:
The facts stated and documents identified in the special case dated 22 April 2014 are to be taken to have been stated and identified in this special case.
We have done it that way for three reasons, basically. One is a matter of paper efficiency. That special case exists; the Court has it. It states a lot of underlying facts as to who my client is and how he came to Australia and all that sort of stuff, so it avoids us having to repeat it.
The second reason is it provides the background to how we got to the current position, including some issues that the Court did not have to resolve in its last judgment but which may be significant, at least for one of the answers in this judgment, which is the improper purpose material. As we apprehend it, those acting for the Minister believe that that material should be deleted from this proposed special case.
We say that this relies upon national interest, a matter relied upon, so far as we are aware, for the first time since this visa class was created. It is a continuation of the kind of improper purpose and the Minister’s stated position that he will never grant a permanent visa to people in my client’s category, and that we would wish to rely upon that material, at least in relation to an application for costs. We think that material should be in and the Minister thinks it should be out.
The other area of dispute is in paragraph 21 of the special case, which is question (3). There is no dispute about questions (1), (2), (4) and (5). As to question (3), we say that that is a question which conveniently crystallises the issue, whether on the facts agreed the Minister has a duty to grant the visa and, as I understand it - - -
HIS HONOUR: Would that be wrapped up in question (4) in any event, if you are arguing for peremptory mandamus?
MR LLOYD: It would. To a certain extent, all of questions (1), (2) and (3) would be wrapped up in question (4). The point of having it separately is so that it is clearly identified as an issue. We have asked the respondents if they accept that if we are successful on (1) and (2) that a duty to grant the visa arises and they have not to date accepted that. It seems to us that there is a question there - - -
HIS HONOUR: Well, you would, in any event, make that an aspect of your argument, would you not, in support of the relief you seek?
MR LLOYD: We would. It is just a matter of crystallising it more clearly as a question, but I am in your Honour’s hands in that regard. We agree that it would come up in any event in mandamus, but the same could be said about the first and second questions.
HIS HONOUR: Yes. Going back to the material from the former special case, and particularly to the improper purposes material, what relevance does that have to the legal question whether the criterion is either invalid generally or in its application to unauthorised maritime arrivals?
MR LLOYD: It does not have a relevance to whether the criterion is valid or invalid, but we say it would have a relevance if we seek an order for indemnity costs on the basis that this is part of an unreasonable process of the Minister to rely upon dubious arguments to delay until he is able to bring back temporary protection visas. The material would be relevant to that.
HIS HONOUR: Well, that seems to me to run the risk of muddying the waters of this special case.
MR LLOYD: All of that material was agreed last time. We are not seeking to put in any further material. When I say it was agreed, the documents were agreed to be true. I am not saying any underlying facts were agreed other than the Minister said what he said. I cannot put it higher than that. If your Honour does not want to include it, then your Honour will decide that way, but we say that my client is in a position whereby he was allowed to apply for a permanent visa. He was delayed by the cap; he was delayed by the regulation which was disallowed, by the cap which was found to be unlawful. This is the next thing, and it is in a process whereby the Minister has said, or at least submissions to the Minister indicate that there is a process of delaying, and if we want to say that, we need some evidence to say it.
HIS HONOUR: Now, at the moment, I think your client has a three-year temporary visa, does he not, humanitarian concerns visa?
MR LLOYD: He does, your Honour. Can I also indicate that if that sentence is deleted from paragraph 4, then there would have to be further work done on the proposed case to work out what materials from the special case need to be separately included in this special case, because some of it would still need to be in, even if the improper purpose material was not in.
HIS HONOUR: You have the previous judgment of the Court. You have the ministerial notifications and the decision record – which, I think, is all annexed to Mr Varess’ affidavit – indicating the Minister has placed reliance upon the national interest criterion and you are arguing that as a matter of law he could not for one of two reasons. I am just wondering what more you actually need to make that argument.
MR LLOYD: I did not bring with me the special case. As I apprehended it, the Minister’s objection was not to everything in the special case being in, but only to the improper purpose material being in - - -
HIS HONOUR: I am just wondering what is useful from the point of view of the Court and what is a distraction from the real issues.
MR LLOYD: This does not, for example, contain material, which I accept would be in the judgment, about my client arriving and the basis of his arriving and the fact that he is a UMA. That sort of material is not an agreed pleaded fact here. That was all in the special case, about him being a UMA, which makes at least the second-tier argument apply to my client.
HIS HONOUR: That is about two or three lines, is it not – that he arrived in Australia on such and such a day and that it is not in dispute that he was an unauthorised maritime arrival?
MR LLOYD: I am not suggesting, your Honour, that if your Honour is against us on the last sentence of paragraph 4 it could not be reasonably quickly done - the special case - but I am not sure that it would only be a sentence or two. It might be a cut and paste job of putting in two or three or maybe more paragraphs. If your Honour thinks the improper purpose material should be left out we can leave that out.
HIS HONOUR: Okay. The other thing, Mr Lloyd, is that if we go down this path, a special case has to have a procedural foundation. The procedural foundation, subject to the directions I give, would be your pleading to the return. That may need some attention because I am not sure that I would accept that the proper plea to the return would encompass anything other than the questions of validity, which you have raised in relation to the national interest criterion, the rest of it being assertions that the Minister was or must have been satisfied of various things – except, I suppose, to the extent that if there is an agreement I suppose that can be agreed and that can go in as an agreed fact, a fairly simple assertion in the pleading to the return. The Minister says “I have determined this
application, considered and determined this application, according to law”. If he is right about 866.226 that then is a sufficient answer.
MR LLOYD: That is true, if he is correct. The question is if he is not correct whether all that happens is it goes back and he gets to find another criterion and has another go. But we say - - -
HIS HONOUR: If he concedes on the special case, I suppose you will assert he was satisfied of all other criteria and if that is agreed you would say he was satisfied of all other criteria and that you are entitled on that basis to peremptory mandamus.
MR LLOYD: Yes, he was satisfied on all of the criteria that lawfully applied to my client and so therefore he was bound to grant us a visa.
HIS HONOUR: All right. I will hear from Mr Herzfeld now, thank you.
MR HERZFELD: Your Honour, can I address, first, paragraph 15, then paragraph 4 and then question (3)? Paragraph 15 is intended to be exhaustive. It sounds, from what has transpired, that there may need to be some further work on the special case in any event, and we can attend to making that clearer when we do that further work. Can I then turn to paragraph 4?
HIS HONOUR: Yes.
MR HERZFELD: For our part, we do not really understand why anything, in particular the documents in the previous special case, are relevant. The only matter which was identified by my friend was really as to a foreshadowed application for indemnity costs on the basis that this is a continuation of an improper purpose. As to that, the first point is that it is not pleaded. The second point is there was no finding of improper purpose in the previous special case, so that application would have wrapped up in it really quite a substantial dispute about whether previously there was, and whether there now continues to be, an improper purpose. That dispute would happen, as I say, without any pleading or particularisation in the plea in response to the return.
In my submission, it is a case where it would substantially muddy the waters to embark upon that kind of consideration and, for that reason, that sentence in the special case should not be included and that issue really should not be part of the special case which goes forward. If the consequence of that is that there needs to be some further uncontroversial facts asserted in terms in this special case then that can be attended to at the same time as attending to paragraph 15. Can I then turn to question (3)?
HIS HONOUR: Yes.
MR HERZFELD: Essentially for the reasons identified by your Honour, for our part we see that as being wrapped up in question (4) and that it is really an unhelpful distraction to elevate it in the way that it has been elevated. There may or may not be argument about question (4), but that is an argument that should be had in the submissions and, presumably, the plaintiff’s argument will be that there is a duty to grant the visa specified in question (3) and the argument will follow from that, but there is no need for it to be stated as a separate question. Unless there is anything else that I can assist your Honour with, that is the position of the defendants.
HIS HONOUR: It seems to me then the task before me is to make some directions in relation to the procedure to be followed in answer to the return by the plaintiff, and that is the filing of an appropriate plea, and in the course of that I will make some reflection on what that plea must be limited to and then on the basis of that plea, with a direction as to filing, some directions in relation to the content of the special case, having regard to what both of you have put to me. Then it seems to me that if the matter is confined to questions of validity and is appropriate for a special case then I can make directions as to the filing of that and perhaps we can then leave it to the parties to bring back a timetable for the filing of submissions or perhaps even settle that on the spot. So, subject to hearing what Mr Lloyd may say in response to you, I will be adjourning briefly to do that in a moment. Mr Lloyd, is there anything further you wanted to add?
MR LLOYD: No, your Honour.
HIS HONOUR: There was a subpoena, by the way. Is that now academic?
MR LLOYD: Yes, I think that has been answered.
HIS HONOUR: Thank you very much. I will adjourn briefly to consider the course I should take.
AT 2.38 PM SHORT ADJOURNMENT
UPON RESUMING AT 3.03 PM:
HIS HONOUR: On 4 July 2014, a writ of mandamus issued out of this Court to the Minister for Immigration and Border Protection commanding that he consider and determine the plaintiff’s application for a Protection (Class XA) visa according to law or stating why it has not been done. The Minister was further required to make a return to the writ by filing a notice on or before 21 July 2014 stating whether he had done what he was commanded to do by the writ or stating why it had not been done.
The orders so made gave effect to the judgment of this Court on questions referred to it by way of special case in proceedings brought by the plaintiff against the Minister and the Commonwealth. The Court was asked whether a determination made by the Minister on 4 March 2014 limiting the number of protection visas that could be granted in the year ending 30 June 2014 was invalid. That question was answered in the affirmative in each case.
A further question on the special case was what relief should be granted to the plaintiff. The Court identified the appropriate relief as a writ of mandamus directing the Minister to consider and determine the plaintiff’s application for a Protection (Class XA) visa according to law. Rule 25.08.5 of the High Court Rules 2004 (Cth) provides that:
The person or persons to whom a writ of mandamus is directed shall within the time allowed by the writ, file the writ or a copy of it in the office of the Registry from which it was issued, together with a certificate indorsed on or attached to the writ or copy signed by that person or those persons certifying that the act commanded by the writ has been done or stating the reason why it has not been done.
On 21 July 2014, the Minister filed a certification as to compliance with the writ of mandamus which stated:
I certify that I have done what was commanded of me by the Writ of Mandamus, dated 4 July 2014, to which this certification is attached.
It is not in dispute that by a letter from the Department of Immigration and Border Protection dated 18 July 2014 the plaintiff was informed that the Minister had refused the plaintiff’s application for a Protection (Class XA) visa. The letter of refusal included the following statements:
After careful consideration of all of the information you have provided, the Minister for Immigration and Border Protection, the Hon Scott Morrison MP (the Minister), was not satisfied that you met all of the relevant criteria for the grant of this visa as set out in Australian migration law.
In particular, your application was refused because you did not satisfy clause 866.226 of Schedule 2 of the Migration Regulations 1994 (the Regulations) which requires that the Minister is satisfied that the grant of the visa is in the national interest.
After careful consideration of the facts and information relevant to your case, including the information provided by you, the Minister has decided that he is not satisfied that it is in the national interest to grant you a Protection visa, therefore your application for a Protection (Class XA), Subclass 866 (Protection) visa has been refused.
By the same letter the plaintiff was informed that the Minister had decided that it was not in the national interest for his refusal decision to be changed or reviewed by the Refugee Review Tribunal. The Minister had therefore decided to issue a conclusive certificate under section 411(3) of the Migration Act 1958 (Cth). This meant that the decision to refuse the application for a protection visa could not be reviewed by the Tribunal in accordance with section 414(2) of the Act.
A detailed decision record was attached to the letter. The decision record indicated that the Minister found that the plaintiff had been assessed as engaging Australia’s protection obligations as found by the Tribunal. The Minister was satisfied that the plaintiff met health, security and character requirements. The decision record indicated that the plaintiff had been invited to comment on the possible refusal of his application on the basis of not satisfying the national interest criterion as well as the possible issuing of a conclusive certificate in the event of a decision to refuse.
The Minister stated that he had regard to the plaintiff’s response, which was Attachment C to the decision record. The response was summarised. The Minister’s reasons for decision in relation to the application of clause 866.226 was set out in part by way of response to the plaintiff’s submission that the national interest criterion was not valid, and if valid, should not be applied.
On 25 August 2014, the plaintiff filed a summons seeking an order that the matter be listed for directions and that the parties confer with a view to agreeing a special case. In the plaintiff’s submissions filed on 5 September 2014, the plaintiff observes that there is no specific procedure prescribed under the High Court Rules for a challenge to the sufficiency of a return made to a writ of mandamus. The plaintiff indicated that he wished to adopt the procedure of pleading to the Minister’s return and denying that what was done was in compliance with the writ. Annexed to the written submissions was a pleading which the plaintiff proposes to file in this proceeding.
As appears from the answers to the questions given by the Full Court, and its reasons for judgment, the direction that the Minister decide the plaintiff’s application according to law was made to give effect to the Court’s finding that the Minister’s refusal to consider and determine the plaintiff’s application was based upon the invalid determination of a cap, purportedly pursuant to section 85 of the Act, on the number of protection visas that could be issued in the year ended 30 June 2014.
On the face of it, the Minister has considered and determined the plaintiff’s application for a protection visa. The plaintiff says, however, that the Minister has not done so according to law because he has invoked an invalid criterion as a sufficient basis for his refusal. He contends also that it may be inferred for various reasons that the Minister was satisfied that he met all other relevant criteria for the grant of the visa.
It appears from statements by the Minister’s counsel that that contention is not in dispute. The lawfulness of the refusal therefore turns entirely for present purposes on the validity of the national interest criterion. The plaintiff contends that the criterion is invalid generally in its application to the grant of protection visas and specifically in relation to an application for a protection visa by an unauthorised maritime arrival within the meaning of the Migration Act.
The proposed pleading is, as presently framed, more expansive than is necessary, particularly having regard to the common ground that the plaintiff satisfied all criteria for grant other than the national interest criterion. The relief sought on that basis is a peremptory writ of mandamus. The pleading in the circumstances could be substantially contracted, particularly with respect to paragraphs 22 through to 53, which plead matters supportive of the evidently uncontroversial proposition that the plaintiff satisfied all other relevant criteria.
Rule 25.08.7 deals only with the case in which the return does not certify that the act commanded by the writ has been done. In that event, any further proceeding in the matter, whether for peremptory writ or otherwise, is to be as directed by a Justice. In this case, the return, on its face, does certify that the act commanded by the writ has been done. The plaintiff’s contention in the present case is therefore not one which appears to be covered by rule 25.08.7. However, rule 6.01.1 of the High Court Rules provides that:
Where the manner or form of procedure for commencing or taking any step in a proceeding or exercising the jurisdiction of the Court is not prescribed by these Rules or there is any doubt about the manner or form of that procedure the Court, a Justice or the Registrar shall determine what procedure is to be adopted and may give directions.
In the circumstances, that rule may be applied to support a direction that the plaintiff plead to the return. The pleading would be directed to the proposition that the Minister’s refusal was not done according to law by reason of the asserted invalidity of the national interest criterion and that the decision to refuse the application based upon that criterion was therefore not a decision made according to law as required by the writ.
The plea of satisfaction of all other criteria is also appropriate on what should be undisputed facts. The pleading raising a question of law, a special case is appropriate to enable the question to be determined by the Full Court. A proposed special case has been attached to the plaintiff’s submissions.
That special case is appropriate for referral subject to the following: firstly, there is no basis for bringing in the facts stated and documents identified in the earlier special case dated 22 April 2014, the reason for their proposed inclusion in this special case being evidently to support an argument that the Minister was actuated by improper purposes, an argument said ultimately to support a claim for indemnity costs. The last sentence in paragraph 4 ought to be deleted. Secondly, paragraph 15 will be amended as indicated as reflective of the common ground that all other relevant criteria were satisfied. Thirdly, question (3) in paragraph 21 should be deleted as it simply goes to the basis for the particular relief and is subsumed in the question as to that relief.
I propose therefore to make the following directions, subject to what the parties have to say about the particular timing:
Now, Mr Lloyd, do you have any difficulty with the dates?
MR LLOYD: No difficulty with the dates, your Honour.
HIS HONOUR: Yes.
MR LLOYD: Can I ask one question of clarification? In relation to ruling out the licence at paragraph 4, does that preclude the agreement of other facts – I mean not to improper purpose facts but other facts that do not go to improper purpose or is that ruling out any other facts at all?
HIS HONOUR: If you can agree other facts and they are relevant to the questions to be determined - - -
MR LLOYD: Certainly.
HIS HONOUR: I have reserved, as you will see, the referral of the special case until it has been filed so if you are able to agree other facts and you both agree that they are relevant to the question to be determined, then unless there is an evident problem from my point of view, there should be no difficulty with that.
MR LLOYD: Thank you, your Honour.
HIS HONOUR: Yes, Mr Herzfeld.
MR HERZFELD: No difficulty with the dates from our perspective. I am not sure if your Honour is able to give us this indication, but in terms of agreeing a minute of further directions, it might be helpful to know when this special case might be listed before the Full Court, even in terms of sitting periods.
HIS HONOUR: Yes. I think at the moment we are listed up to and including November. I would think it would be the December sittings would be the earliest - - -
MR HERZFELD: Thank you, your Honour. That is helpful.
HIS HONOUR: All right, thank you. The Court will now adjourn.
AT 3.15 PM THE MATTER WAS ADJOURNED
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