Plaintiff M47/2018 v Minister for Home Affairs & Anor [2018] HCATrans 221 (23 October 2018)

Last Updated: 23 October 2018

[2018] HCATrans 221

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M47 of 2018

B e t w e e n -

PLAINTIFF M47/2018

Plaintiff

and

MINISTER FOR HOME AFFAIRS

First Defendant

COMMONWEALTH OF AUSTRALIA

Second Defendant

GORDON J

TRANSCRIPT OF PROCEEDINGS

FROM MELBOURNE BY VIDEO LINK TO SYDNEY

ON TUESDAY, 23 OCTOBER 2018, AT 9.29 AM

Copyright in the High Court of Australia
MR J.W.K. BURNSIDE, QC: If your Honour please, I appear with MR I. CHATTERJEE, who is in Sydney, for the plaintiff. (instructed by Human Rights for All Pty Ltd)

MS Z.C. HEGER: If the Court pleases, I appear for the defendants. (instructed by Australian Government Solicitor)

HER HONOUR: Mr Burnside.

MR BURNSIDE: Your Honour, I do not know if you have seen some proposed consent orders. Can I hand up a copy because

HER HONOUR: No, I have them, thank you. They were emailed to my chambers. Can I raise some questions, both of you and Ms Heger, about the special case?

MR BURNSIDE: Yes.

HER HONOUR: I understand from the proposed minute of orders that it seems that you are in agreement that the matter should be referred to the Full Court. Can I raise four concerns I have with the special case? One concerns factual matters which are minor. I will deal with those first because they are relatively straightforward and then deal with the second substantive matter and come to what I propose, at least initially, and see where we get to. Do you have a copy in front of you, Mr Burnside?

MR BURNSIDE: Yes.

HER HONOUR: Do you have one, Ms Heger?

MS HEGER: I do.

HER HONOUR: Thank you. When I read it I got concerned that there was an inconsistency in the way in which this issue had been addressed. I raise this only because when it gets to the Full Court this will be the first time the other Judges will see it. There seemed to be a leap in the logic in circumstances where points were sought to be raised in one paragraph which seemed to me, on looking at the documents, had been raised earlier. This was a minor point.

Can I raise, by way of an example - if you go to page 4 at paragraphs 20 and 21 the point raised in 21 is that the plaintiff came to be [YaY] as opposed to [YeY]”. That seemed to be referable to paragraph 20 because when I looked at the documents in the special case that supported it that seemed to be the position on the face of the document. I do not seek to recraft this, but if that is really the point that seems to be raised then it seems to me that that point should be dealt with consistently throughout and not for the first time raised in paragraph 21.

Now, I may have read the documents incorrectly, Mr Burnside, but it seems to me that it needs to be revisited in order to make good that proposition. In other words, if it is truly a point that wants to be made, then it seems to me it is first raised in paragraph 20, not in 21, and when one reads 20 on its face it looks as though the application had been made in the name of the plaintiff. I do not know what that name is. So you have this difficulty, I think, without ploughing through the documents, where the agreed facts on their face do not seem to be selfcontained.

Now, that may not be a difficulty, but I raise it because the same issue then arises, it seems to me, when one gets to paragraphs 33 and 34. In other words, it again says “the plaintiff”. When I go to the documents I am dealing with a named person, who is obviously the plaintiff, but dealt with, I think again, as [YaY] on its face. So I think as a matter of ease of reference of the document, maybe that should be addressed.

The second and third matters which I seek to raise are these. In paragraph 42 there is the application for a bridging visa determined to be invalid, but that is not in the special case book. Does that matter? I raise these, not for you to answer now, Mr Burnside or Ms Heger, but to at least consider it because if I was looking at this as a Judge on the Full Court that would be one of my questions.

The third thing is that when one gets to 44 one has no idea why the ITOA has been suspended. I think I am up to number 4. Then when I get to – there are other questions on the way through but these ones are the most important. When I get to paragraphs 75 and 76, this is where both the factual analysis is short but gives rise to questions in my mind about what it is you are actually asking this Court, if I refer it in, to do.

It arises in this way. If, as I understand your contention, Mr Burnside, that you seek to challenge the lawfulness of the plaintiff’s ongoing detention, then if one goes back and looks at AlKateb or S4 or others, there has at least been a finding or an agreement between the parties about the reasonable likelihood of the plaintiff’s removal or there have been sufficient facts and matters put before the Court by way of special case – and I have S4 as an example – where the Court has, in effect, been in a position, it would seem on the authority, to reach a conclusion of itself.

Here, having regard to what is set out in 75 and, more importantly, 76, I am in a position where there is no lower court finding as there was in AlKateb, there is an agreed fact that the defendants are presently taking steps to identify countries that they may send the plaintiff to, there is no statement about statelessness as there was in AlKateb and although there are facts agreed whereby the Minister has refused to exercise his noncompellable powers, including under the new section 195A which came after AlKateb – and having regard to paragraphs 35, 37, 39, 45 and 46 – we have no details. So it may be that there are no details to be given but that would seem to be another matter of inquiry that may be necessary if the Court is being asked to consider, as I understand, what your legal submission is.

I am driven back, having regard to those four or five factual matters, to raise the question about whether or not this is currently in a form which is appropriate to go forward, having regard to the argument you seek to address.

MR BURNSIDE: I think, your Honour, it may – and this is probably a matter for the defendant to deal with, but I think the fundamental difficulty might be this. The defendant is not yet satisfied of the identity of the plaintiff and a lot follows from that, for example, if they can identify who he is to their satisfaction that may change their attempt to find a place where he can be sent. Given the circumstances of the case it may be that he does not know who he is.

HER HONOUR: That raises another question, so my second question is that – I do not know whether those two propositions follow from what you just put to me so I am not seeking to suggest that I accept or reject that contention, but it does seem to me to raise, regardless of whether or not identity is solved or not solved, there are still questions about prospect of removal and statelessness. But I will put that to one side. We have no evidence before this Court on this material about his medical position.

MR BURNSIDE: His medical or mental?

HER HONOUR: Medical – that would extend to include mental.

MR BURNSIDE: Yes.

HER HONOUR: That may not be a factor relevant – I do not know – but it just seems to me to be not in a sufficiently detailed form for it to go forward. Do you want me to hear what Ms Heger has to say about these matters, Mr Burnside?

MR BURNSIDE: Yes, I do not think I can say anything useful about his mental condition or his medical condition

HER HONOUR: No, I am not asking

MR BURNSIDE: which probably for the most part turns on his mental condition. Having been in detention now for eight years in Australia he is anxious, and that is putting it mildly.

HER HONOUR: You have heard what I have said, Mr Burnside.

MR BURNSIDE: I have.

HER HONOUR: Ms Heger.

MS HEGER: Your Honour, as for the more minor matters that you addressed at the outset certainly we can consider those and seek to address them in a revised special case. As for the matter of what I will call substance relating to paragraphs 75 and 76 and your Honour’s observation that we have no lower court finding about reasonable practicability and no agreed fact as to that matter, certainly the defendants’ intention was to submit on the basis of the facts set out in the special case the Court should make a finding that we have not yet reached the factual position that obtained in AlKateb, namely we have not yet reached the position where there is no real likelihood or prospect of removal in the reasonably foreseeable future.

We thought the facts contained in the special case were sufficient for us to put that submission. If the Court would be assisted by further detail surrounding paragraphs 75 and 76 that is certainly something I can take on board and seek further instructions about.

HER HONOUR: At the moment it is a bald assertion, that is bald assertion is nothing more than presently taking steps and I do not know that that gets the Court anywhere. We do not know what those steps are. We do not know how long they have been going on. So you will make that submission and my concern is it would go to a court and the court would not be in a position to make and to accept that submission. It may be right and it may be that you are agreed between you that that is sufficient, but if this is truly a vehicle, as I apprehend it, to seek to reopen AlKateb, then I am not minded at the moment for it to go forward in this form given the paucity of the detail.

It may be that it cannot be agreed and it may be that it has to be remitted and we have proper evidential findings. There is a final issue I want to raise with you, Ms Heger, and that is this. You will know, I hope, that there is another matter that is currently before me in terms of management, S111a which is coming back for directions on 21 November at 9.30.

MS HEGER: Yes, I am aware of that matter.

HER HONOUR: It seeks itself to challenge AlKateb as I understand it. It would seem to me that if both matters are going to go up, that is go forward to the Full Court, it would be useful if they were either heard together or sequentially because they would provide appropriate vehicles to test the proposition that they both seek to raise in quite different circumstances. Now, if that is to be the position, then both would need to be in a form factually where the facts are sufficient to enable the Court to address it. At the moment I am not convinced that it is currently in a present form that enables the Court to do that given the matters I have raised with you.

MS HEGER: Yes, I will certainly take on board your Honour’s comments about the current state of the special case and seek some instructions about that and confer with the other side. As for S111a, yes, my understanding is that it does seek to reopen AlKateb. I am not sure that on the present state of affairs it is a suitable vehicle for that but we will certainly give consideration to what your Honour says about whether they should be heard together.

HER HONOUR: What I propose to do, subject to what Mr Burnside says, and of course I will hear his submissions, is that I think the preferable course would be to adjourn this matter to 21 November at 9.30 for two purposes – it is really three. One is so you can revisit the questions I have raised with you about the special case; second is to – and that is both what I will call the factual underpinnings of the matters raised as well as the legal question which is of concern to me – and then thirdly whether or not and how it should sit with S111a. I know you are not in that matter, Mr Burnside, but you may wish to speak to counsel about that. I understand Mr Williams of counsel in New South Wales appeared last time.

MR BURNSIDE: Thank you, your Honour. That does sound like a very sensible way of dealing with the matter. It gives us time to see whether we can adjust the facts in the special case and we will have to have a careful look at the facts raised in S111a.

HER HONOUR: I know your client has been in detention a long time, but we need to get it right. It needs to come up in a proper form.

MR BURNSIDE: Yes, I understand.

HER HONOUR: Is there any difficulty with 21 November at 9.30, Ms Heger?

MS HEGER: I have no difficulty with that, your Honour.

HER HONOUR: Mr Burnside?

MR BURNSIDE: I am just checking, if I may.

HER HONOUR: Of course.

MR BURNSIDE: No, that looks all right.

HER HONOUR: Perfect. What I will do is this. I will adjourn this directions hearing until 9.30 am on 21 November 2018 and you can, of course, appear by video link, Mr Chatterjee and Ms Heger. What I would suggest – and you can tell me how long you need – is that if you are able to agree an amended special case and can provide it to the Court, you do so. I do not seek to impose a particular time on you but maybe you could let me know how long you think you might need to adjust it.

MR BURNSIDE: Your Honour, I think for our part we would be able to deal with the first two matters quite simply and quickly. The matters about paragraphs 42 and 44 – 44 depends on the defendants.

HER HONOUR: Yes.

MR BURNSIDE: I think 21 November should be adequate.

HER HONOUR: All right. No, no, 21 November is the hearing. This is for the

MR BURNSIDE: We should have it comfortably before that.

HER HONOUR: I see. It would be useful for my own planning purposes if we could have a date so at least I can have time to think about it. How much before then do you think you will be in a position, because it is not just 42 and 44? I think 75 and 76 need looking at.

MR BURNSIDE: Yes.

HER HONOUR: As I said, you may need to give some consideration to the plaintiff’s medical position as well.

MR BURNSIDE: My instructor is in Sydney but if

HER HONOUR: Would you like me to go off the Bench for a while, while you have a conversation with your instructor?

MR BURNSIDE: No. I was going to ask if we said 14 November, would that be sufficient for your purposes?

HER HONOUR: That is fine for me. Is that fine with you, Ms Heger?

MS HEGER: Yes, I think that is suitable, your Honour.

HER HONOUR: Mr Chatterjee, would you mind checking with your instructor that Mr Burnside has not adopted a course which is not useful?

MR CHATTERJEE: I am instructed that that is suitable, your Honour.

HER HONOUR: Thank you very much. I will direct that any amended special case is filed by 14 November 2018 and otherwise adjourn the directions to 21 November 2018 at 9.30. Anything else, Mr Burnside?

MR BURNSIDE: No, your Honour.

HER HONOUR: Ms Heger?

MS HEGER: No, your Honour. Thank you.

HER HONOUR: Adjourn the Court.

AT 9.45 AM THE MATTER WAS ADJOURNED