Plaintiff C7a & Ors v Minister for Immigration and Border Protection & Ors [2017] HCATrans 169 (24 August 2017)

Last Updated: 24 August 2017

[2017] HCATrans 169

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Canberra No C7 of 2017

B e t w e e n -

PLAINTIFF C7a/2017

First Plaintiff

PLAINTIFF C7b/2017

Second Plaintiff

PLAINTIFF C7c/2017

Third Plaintiff

and

THE MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Defendant

THE ADMINISTRATIVE APPEALS TRIBUNAL

Second Defendant

Directions hearing
BELL J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON THURSDAY, 24 AUGUST 2017, AT 9.30 AM

Copyright in the High Court of Australia

MR H.R. FORD: Your Honour, I appear for Plaintiffs C7a, C7b and C7c. (instructed by Hugh Ford Solicitor)

MS T.L. WONG: May it please the Court, I appear for the first defendant, the Minister for Immigration and Border Protection. (instructed by Clayton Utz)

HER HONOUR: Mr Ford, you have seen the submissions from the first defendant suggesting the appropriate course is to remit the matter to the Federal Circuit Court.

MR FORD: Yes, your Honour.

HER HONOUR: Do you have anything to put in that regard?

MR FORD: Yes, I do, your Honour.

HER HONOUR: Yes.

MR FORD: Your Honour, the plaintiffs have commenced proceedings pursuant to section 75(v) of the Constitution. I should point out this is a constitutional right to seek review. While there may be a discretion as to the remedies which the Court may grant, there is a right to seek review and that right is a right to seek review by the High Court, not by the Federal Circuit Court. Now, while there may be - - -

HER HONOUR: There is, in some respects, a novel aspect to that submission, Mr Ford. The fact that proceedings are commenced in this Court to obtain the discretionary remedies that are claimed in your application to show cause may be thought to be putting it high to characterise as a right the issues in the submissions made on behalf of the first defendant are suggested not to be of the nature to engage the jurisdiction of the Court. Now, if there is something that you want to put to me in that respect that would be helpful, but I am not sure that I am greatly assisted by being told that you have a right to proceed in this Court regardless of the issues that the matter raises.

MR FORD: I accept that, your Honour, but that is the plaintiffs’ contention, that it is at that higher stage of being a right to seek review. While there may be a rule or a statute which authorises the remittal of the matter to the Federal Circuit Court, the Constitution does not contain authority or a power to remit. The power to remit comes from a statute or from the High Court Rules and if the High Court Rules were to be invoked to remit the matter then the Court would be acting beyond power because the Constitution does not contain a power to remit and here we are – the Rules are giving the Court the power to remit when that is not in the Constitution.

So if there were to be a remittal, it is the plaintiffs’ contention that that would be – the Court would be acting - in simple ultra vires it would be beyond power to do that. Your Honour, I do not propose to elaborate on those things. This is simply a directions hearing and I am conscious of the fact that we have other matters which are before the Court.

HER HONOUR: Mr Ford, I have before me this morning submissions by the first defendant that the appropriate course is that I remit this matter to the Federal Circuit Court for the reasons identified in Ms Wong’s written submissions. I propose to deal with that application. I just wish that to be clear to you.

MR FORD: Yes, your Honour. The plaintiffs contend, as was indicated, that there is no authority to remit. If the Court chooses to rely on a rule or a statute to authorise that remittal then the Court – the High Court would be acting beyond power. Now, another reason why the plaintiffs do not want this matter to be remitted is because the plaintiffs have real concerns about the bias of the Federal Circuit Court. The first issue about the bias of the Federal Circuit Court - - -

HER HONOUR: Mr Ford, that is a grave allegation to make - an unparticularised assertion that the members of the Federal Circuit Court are biased.

MR FORD: Well, your Honour - - -

HER HONOUR: Mr Ford, members of the profession enjoy a privilege in appearing before this Court and other courts and I just draw to your attention the need to be careful in the exercise of it.

MR FORD: Yes, your Honour.

HER HONOUR: I do not think I need elaborate on that, Mr Ford, but - - -

MR FORD: I suppose at the heart of this issue, your Honour – you are obviously aware that the Full Court of the Federal Court had reason to make – hand down its decision concerning the issue of the bias of one particular judge and the plaintiffs have disagreed with that Full Court Federal Court ruling and that is one of the issues which the plaintiffs seek to ventilate in this matter. The concern is that if this matter is remitted back to the Federal Circuit Court, there are some judges who have a very high dismissal rate. This is the basis for the reasonable apprehension of bias claim.

Now, the other reason why this matter should not be remitted is because this case and many thousands of other cases turned on the issue of credibility. In my submissions, your Honour, I pointed to the comments of his Honour Justice Kirby - in the SGLB Case - who made very strident and definite directions to the Court as to how they are supposed to deal with the issue of credibility.

HER HONOUR: Mr Ford, I think this submission is directed to a submission that you have previously put – I note on occasions amongst others in an application dealt with by his Honour Justice Nettle – just bear with me one moment.

MS WONG: SZUSH, your Honour.

HER HONOUR: Yes, that is the matter - in May of last year.

MR FORD: That is right, your Honour.

HER HONOUR: When his Honour dealt with what I was subsequently to observe appeared to be a misconception in the argument that you developed in SZUSH and later before me in MZAHH respecting the analysis in Minister for Immigration and Multicultural and Indigenous Affairs v SGLB - the same argument that has been rejected by Justice Nettle and by myself on earlier occasions is the matter central to an aspect of the relief that you claim on this occasion. Is that so?

MR FORD: That is right, your Honour. I suppose in response to that I would say that I do not accept that my views on the matter are misguided. I do not accept that these are matters – the issues which are raised by his Honour Justice Kirby are just as pertinent today as they were when you dealt with this matter; in fact, they are even more problematic.

Unfortunately, the Tribunal and the Minister have continually ignored the protestations of Justice Kirby in this regard. While I accept that the predominant legal view is that the comments of Justice Kirby are in a minority, as I have indicated in my submissions, the majority of the Court in the SGLB Case did not derogate from or did not disagree with, and in a number of other cases that have subsequently dealt with his Honour’s comments in SGLB they have not disagreed with the principles as enunciated by his Honour but they have disagreed on the facts of the particular matter.

So, the issue of credibility is an enormous issue, your Honour, and unfortunately the Tribunal and in particular the Federal Circuit Court seem to be condoning this approach that an inconsistency in the argument bases a finding that the applicant’s claims are to be rejected. As his Honour Justice Kirby has indicated, the fact that there is an inconsistency does not form a basis for the rejection of the rejection of the claims.

HER HONOUR: Is there anything else you wish to put, Mr Ford?

MR FORD: Yes, your Honour, two more issues concerning the issue of bias. Fairly recently the Minister has sacked a number of members of the AAT, and further, the Minister has described all of the refugees who are applying for a protection visa to be fake refugees. Now, the Law Council has had reason to comment that this has the effect of - - -

HER HONOUR: Mr Ford, what is this submission going to that is relevant to the matter that I am dealing with today?

MR FORD: Well, it provides further grounds for the claim of bias, your Honour. The comments of the Minister - - -

HER HONOUR: At the moment, as I understand it, Mr Ford, there is a contention in relation to the member who determined the review of the delegate’s decision and an assertion of bias, is that so?

MR FORD: Yes, your Honour.

HER HONOUR: Telling me things that have been reported as to statements made by the Minister would seem to me to hardly bear relevantly on any contention that you might wish to make concerning the reasons why this Court would deal with the matter rather than remitting it so amongst other things any factual questions touching on some aspects of the relief that you seek might be dealt with in a court, in the Federal Circuit Court.

MR FORD: Well, as I already indicated, the plaintiff cannot be satisfied that - - -

HER HONOUR: Well, I am not - Mr Ford, you have made that submission. If there is some further submission you wish to make, by all means do so.

MR FORD: Just the last thing in relation - - -

HER HONOUR: But, Mr Ford, I am not here to sit and listen to speeches concerning the Minister or other matters. Do you understand?

MR FORD: Well, I just think – yes, your Honour, I accept that totally. It is just I am saying that - - -

HER HONOUR: Yes, very well.

MR FORD: - - - these are matters which impact on the whole way the Tribunal and the court system operates and they are very serious matters, and that is why I have raised them. I have no further submission, your Honour.

HER HONOUR: Yes, thank you, Mr Ford. Ms Wong.

MS WONG: Your Honour, two more points have been made by Mr Ford this morning. One of those is novel, it was not raised in his submissions that were filed in support of the application to show cause.

HER HONOUR: Yes.

MS WONG: That point – I will endeavour to summarise it correctly - - -

HER HONOUR: Thank you.

MS WONG: - - - was that the right to seek review in this Court was not a right that could be delegated to another Federal Court and to remit this matter would be ultra vires. That was the nature of the submission made.

HER HONOUR: Yes.

MS WONG: Your Honour, in the matter of MZXOT v Minister for Immigration and Citizenship [2008] HCA 28; (2008) 233 CLR 601, this Court considered the validity of a provision which placed restrictions on the ability of this Court to remit matters to the Federal Circuit Court and other courts. Their Honours Justices Gleeson, Gummow and Hayne referred to the history of the creation of courts that were able to assist the High Court to deal with matters arising in its original jurisdiction and the constitutionality of those processes, in particular, that the jurisdiction conferred on other Federal Courts is appropriately supported by section 76(ii) of the Constitution.

HER HONOUR: Yes.

MS WONG: Your Honour is no doubt familiar with all of this. Suffice to say that the power of this Court to remit is indeed squarely within the scope of its jurisdiction under the Constitution and also under the Judiciary Act under section 44. Aside from that, your Honour, the second point that Mr Ford makes has been adequately dealt with in previous decisions of this Court that your Honour referred to a moment ago, and unless your Honour has something specific that I could assist with.

HER HONOUR: Thank you, Ms Wong.

MS WONG: If I could just identify, there are short minutes of order that are at the back of the Minister’s submissions, and I did speak to Mr Ford just before we came before the Court and I said to Mr Ford if the Court was not minded to accept his application – not suggesting that there may be a particular outcome – did he have any objection to the content of those orders, and I hope Mr Ford does not mind me stating that he had no objection to those orders.

MR FORD: I have no objection, your Honour.

HER HONOUR: Thank you.

The plaintiffs commenced proceedings by an application for an order to show cause on 18 May 2017. They seek relief by way of the prerogative writs in respect of a decision of the Administrative Appeals Tribunal made on 13 April 2017 not to grant protection visas to the plaintiffs.

The Minister submits that the unparticularised grounds in the application do not raise issues of public importance such as to require the consideration of this Court and notes, in light of an allegation that the Tribunal was biased, the real prospect that issues of fact will arise for determination. In the circumstances, the Minister submits that the appropriate course is to remit the proceedings to the Federal Circuit Court under section 44 of the Judiciary Act 1903 (Cth).

That course is opposed by the plaintiffs. Mr Ford, who appears on the plaintiffs’ behalf, has submitted that they have what he characterises as a right to the relief that he claims to be determined by this Court, and that this Court would be acting beyond power in remitting the matters.

Suffice it to say that I accept the Minister’s submissions as to why that contention is misconceived and I reject it. I accept that nothing in the way the issues are framed suggests that it is appropriate for the matter to remain in this Court. I accept that there is a real prospect that issues of fact will arise for determination in relation to one aspect of the relief claimed. The appropriate course is to remit the proceedings to the Federal Circuit Court and I make the following orders:

1. The application be remitted to the Federal Circuit Court of Australia, Australian Capital Territory Registry, pursuant to section 44 of the Judiciary Act 1903 (Cth).
   
2. The Deputy Registrar of this Court is to forward to the proper officer of the Federal Circuit Court of Australia copies of all documents filed in this Court.
   
3. The costs of the application in this Court are costs in the cause.
   

The Court will adjourn.

AT 9.51 AM THE MATTER WAS CONCLUDED