Plaintiff M47/2018 v Minister for Home Affairs & Anor [2019] HCATrans 9 (13 February 2019)

Last Updated: 19 February 2019

[2019] HCATrans 009

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

THE COMMONWEALTH OF AUSTRALIA

Second Defendant

KIEFEL CJ
BELL J
GAGELER J
KEANE J
NETTLE J
GORDON J
EDELMAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 13 FEBRUARY 2019, AT 10.06 AM

Copyright in the High Court of Australia
MR R. MERKEL, QC: If the Court pleases, I appear with my learned friends, MR L.T. LIVINGSTON, MR E.M. NEKVAPIL and MS C.G. WINNETT, for the plaintiff. (instructed by Human Rights for All Pty Ltd)

MR S.P. DONAGHUE, QC, SolicitorGeneral of the Commonwealth of Australia: May it please the Court, I appear with MR P.D. HERZFELD and MS Z.C. HEGER for the defendants. (instructed by Australian Government Solicitor)

KIEFEL CJ: The parties will have received a letter from the Registrar of the Court written at the direction of the Court inquiring as to a preliminary question of fact and, in particular, what inferences the plaintiff seeks to draw from the facts concerning his alleged statelessness and the length of time which he might be detained and whether such inference is available. The parties would appreciate that that issue must necessarily be addressed before the questions in the special case are addressed and the Court would therefore appreciate and would be assisted by argument in that regard before we move to the questions in the special case. Mr Merkel.

MR MERKEL: If the Court pleases. We will address the three questions of the inferences as your Honours have requested. We say in respect of the first inference that we would say can and should be drawn is that there is no real prospect or likelihood that the plaintiff will be removed from Australia potentially in his lifetime, alternatively during his natural life. I will explain the basis for why we are putting it in this way shortly, your Honours.

KIEFEL CJ: The distinction is not entirely apparent to me but perhaps you can come back to that.

MR MERKEL: Yes, your Honour. The second inference is that there is no real prospect or likelihood that the plaintiff will be removed from Australia within the reasonably foreseeable future. Can I ask your Honours to note that we have deleted from both formulations the word “possibility” on the basis that we say real possibility and prospect are superfluous and “prospect” encapsulates what we mean by real possibility as distinct from a mere possibility. I should say that the first two formulations of inferences are based upon the way in which the Court approached the Act in AlKateb.

KIEFEL CJ: The first inference that you seek to draw, just to be clear, is that there is no real prospect or likelihood that the plaintiff will be removed from Australia potentially or during the course of his natural life – is that the terminology?

MR MERKEL: Yes, your Honour potentially in his lifetime, which picks up the wording used in some of the overseas cases to look at the potential removal in his lifetime, rather than try and have to predict what his natural life might be. I can understand why there may not be a substantive difference but we did not want the Court to have to be distracted by asking the question of what the plaintiff’s natural life might be.

KIEFEL CJ: I see.

MR MERKEL: “Potentially in his lifetime” encapsulates the nature and extent of the detention that he is currently confronting.

KIEFEL CJ: The alternative inference is that there is no real prospect or likelihood he will be removed from Australia within the reasonably foreseeable future.

MR MERKEL: Yes, and that is the finding upon which AlKateb was based

KIEFEL CJ: AlKateb was based.

MR MERKEL: by Justice von Doussa. I should say we have handed up to your Honours his Honour’s judgment in the book of authorities. It does not have paragraph numbers. We have handed up the judgment with paragraph numbers which we have referred to in our submissions.

The third inference we would ask the Court to make is that the plaintiff’s removal from Australia is no longer practically attainable and I should say, your Honours, just by way of explanation, that formulation picks up the approach of the United States Supreme Court on what we say, properly understood, is an analogous question and that comes from the decision of the court in Zadvydas [2001] USSC 64; 533 US 678 (2001), which is tab 29.

KIEFEL CJ: Just to be clear, that is no longer practically maintainable.

MR MERKEL: Practically attainable.

KIEFEL CJ: Attainable. Thank you.

MR MERKEL: I should say we have handed up to your Honours

KIEFEL CJ: Is that not really a premise for the other two inferences?

MR MERKEL: Your Honour, it is but we say that the difference between our third and fourth inference is that the first and second are endeavouring to look ahead and in effect anticipate what might happen in the future. The third and fourth inferences are founded on the facts as they now exist and put what we say is an appropriate formula - may be a more appropriate formula than the way it was approached in AlKateb based upon Justice von Doussa’s finding and is based upon authorities that really have approached the same question and we say that it – forensically, it is a more practical and realistic way of trying to look at what the situation is at present, and it picks up – sorry, your Honour.

GAGELER J: Embedded in it by saying “no longer”.

MR MERKEL: Yes.

GAGELER J: You are embedding a temporal element that is somewhat obscured by that rather cryptic phrase. What is the temporal element? You cannot be just looking at this point in time.

MR MERKEL: Or sorry, is not practically attainable, your Honour.

GAGELER J: In some sort of timeframe? Is there a timeframe built into question (3), or are we looking at the moment?

MR MERKEL: We are looking at the moment, but within a timeframe, your Honour, that practically attainable looks at the facts now and asks is it attainable not just at the moment, but is it attainable, and we say as a matter of fact there is nothing in the current circumstances that would suggest it is practically attainable.

KIEFEL CJ: But does that accept - and you will develop this obviously - as Justice Gageler points out, is it accepted that that might change?

MR MERKEL: Yes, every one of these formulations accepts that there could be a possibility, a mere possibility of change. But the way in which we ultimately approach the case is that we say that the duty to remove is merely suspended if these criteria result in the custodial detention becoming unlawful, that the mere possibility is not sufficient to have the necessary link between custodial detention and the purpose of removal, but the purpose of removal is maintained.

Can I just indicate to your Honours the Supreme Court’s holding in Zadvydas was the following year affirmed and summarised in a case we have handed up to your Honours, Demore v Kim [2003] USSC 3274; 538 US 510 (2003), and the relevant page is 527, where they have endeavoured to summarise what Zadvydas stands for, but in a way very analogously to our law, which requires that the custodial detention have the requisite and sufficient connection with the purpose of removal.

KIEFEL CJ: And that is your fourth inference?

MR MERKEL: The fourth inference is based upon the Hardial Singh line of cases in the United Kingdom, and it is that it has become apparent that the defendants have not been able to effect the plaintiff’s removal within a reasonable period. That is based upon Justice Dixon’s analysis of – again, analogous provisions in Lau v Calwell [1949] HCA 65; (1949) 80 CLR 533 at 581, which is tab 12. There is a Hardial Singh line of cases, but the encapsulation comes directly from R (O v Secretary of State) 1 WLR 1717 (2016), which is tab 26, and the relevant summary of the principle in those terms is at page 1734 in paragraph 46.

We have also handed up to your Honours the most recent formulation of the Hardial Singh principles in B (Algeria) v Special Immigration Tribunals [2018] AC and the power to detain in the terms of it are in paragraph 17 and the relevant principles are stated at paragraph 25.

KEANE J: Mr Merkel, does that mean that if it is now practicable to remove the plaintiff, the circumstance that he had not previously been removed within a reasonable period means that you win?

MR MERKEL: I am not sure I would say that, your Honour. We are looking at the state of affairs at present – there is a

KEANE J: I am just wondering what the utility of the fourth inference you are putting to us is?

MR MERKEL: I am looking at it as at present and that it has become apparent that the defendants have not been able to effect the plaintiff’s removal within a reasonable period.

KEANE J: Sure.

MR MERKEL: I am looking at it as at present not in respect of a past default. If there is a past breach, your Honour, that might take us to a different question which we are not putting before this Court as to whether the removal and the steps for removal have been taken with due diligence and if, for example, for three years the Commonwealth do nothing there might be an argument which we are not putting before this Court that that brings the right to detain to an end.

KEANE J: If you are not putting the argument do you really need to entertain us with the fourth inference?

MR MERKEL: Your Honour, it is just that in the Hardial Singh principles the question your Honour has put to me arises as an anterior principle - have they taken reasonable steps to effect removal that may render that detention unlawful? But we are only looking at the endpoint. We are not seeking to do any more than look at the situation as at present and say that on any of those inferences the relevance of which will ultimately depend on the Court’s holding about what is the question of construction and how it is to be determined in the present case - but ultimately on any of those four inferences we say the requisite link between custodial detention and purpose of deportation or removal is not sufficient to justify the custodial detention.

So, we do not want to look backwards other than for the purpose of determining what the situation is at the moment. We say all four criteria or inferences do that – look at all the circumstances and ask today is the link made out in the way that the constitutional requirement is expressed in respect of the Act in Lim.

We would be contending that all four inferences are open and should be drawn on the evidence but the drawing of any one of them, we would say, is sufficient to sever the link that it identified with the result that the detention is no longer effecting or being – effectuating the plaintiff’s deportation.

NETTLE J: That just cannot be right because if there is a prospect, a reasonable prospect that he be removed tomorrow it cannot be right because there is not move with reasonable speed until this point. It is enough. You must look forward. It does not matter whether you take 1, 2 or 3 formulation – all 4 can ever be at most is some basis from which to draw the inference identified in 1, 2 or 3.

MR MERKEL: Your Honour, I accept that so we would say that the fourth inference - are not able to effect the plaintiff’s removal within a reasonable time, so it unambiguously

NETTLE J: It is not an inference, it is a fact that you would have to prove and from which you might be able to draw an inference in 1, 2 or 3.

MR MERKEL: That is so, your Honour, but we do not want to abandon the analogy that we say can properly be drawn with the Hardial Singh line of cases.

NETTLE J: You are not arguing that he should be released because there has been a past breach.

MR MERKEL: No.

NETTLE J: You are arguing he should be released because there is no real prospect or likelihood that he will be deported.

MR MERKEL: Yes, and all four ways, your Honour, are different ways of expressing that.

NETTLE J: No, the fourth is not. It is unlike all the others because it looks back rather than forward and what is back can be proved as a matter of fact rather than as a matter of inference.

MR MERKEL: Your Honour, I accept that distinction. Could I reformulate the fourth, is that it has become apparent that the defendants are not able to effect the plaintiff’s removal within a reasonable period.

KIEFEL CJ: I thought you had narrowed it further to simply the defendant is not able and that would be is not presently able, is it not?

MR MERKEL: Yes, your Honour. We would say that draws the distinction your Honour Justice Nettle has raised with me, which we accept. There are facts and then there is inference that may be drawn.

NETTLE J: So we are looking forward for some period of time.

MR MERKEL: Yes, yes. We are not trying to cut off a line arbitrarily as at the date of this hearing.

GAGELER J: So is the only real difference between your formulation 2 and your formulation 4, that formulation 2 is looking to the foreseeable future and formulation 4 is looking to a reasonable period.?

MR MERKEL: Yes, your Honour, I think that is a fair comment. The reason for it is the AlKateb looks at “reasonably foreseeable future”, Hardial Singh principles look at “within a reasonable period” and that is precisely what Justice Dixon found in respect of a removal as soon as practicable in Lau v Calwell.

So, your Honours, we say that the drawing of any one of those inferences is sufficient for our case. We endeavour to explain why that is so, and I will come back to this later, in paragraphs 9 to 12 of our outline. But we want to make it quite clear that which of the findings, if any of them are made, or which of the inferences are to be drawn if any, is relevant – but whether it is relevant or determinative will depend on the Court’s construction of sections 189, 196 and 198 of the Act, and in particular, whether it accepts our submissions on the operation of proper construction of the Act of those – the relevant sections in the outline and in our plaintiff’s submissions at paragraph 47 and our reply submissions at paragraph 9.

Can I turn now to the second aspect of the questions that your Honour the Chief Justice asked us to address which is the factual basis on which those inferences are being asked to be drawn, but can I first do so in the relevant context. There are just a few facts that we say need to provide the context for the more detailed evidence we will go to.

The plaintiff arrived in Australia and was placed in, and has continued to be in immigration detention, that is custodial detention, as from 28 January 2010. On 29 March 2010, he made a written request to be removed from Australia. That comes in the special case at paragraph 57.

Putting to one side the periods since 29 March, in which the plaintiff’s full protection and safe haven applications have been determined, the Commonwealth has been under a duty to remove the plaintiff as soon as – as reasonably practicable under section 198(1) of the Act. The Commonwealth commenced its extensive investigations, which I will go to shortly, in relation to the plaintiff’s identity with a view to establishing a country to which he may be sent on 10 February 2010.

So the context in which these facts are to be considered have been both the custody, which has now exceeded nine years, and investigations which have been carried on by the Commonwealth, and very extensive investigations, throughout that nineyear period.

The other matter we would like to mention at the outset is that in M96A, which is at tab 20 at page 594 at paragraph 22 – and I do not need your Honours to go there – it was accepted by the Commonwealth, and it would appear the Court, that the purpose of immigration detention is to assess objectively by reference to all the circumstances of the case.

We have endeavoured in our submissions at paragraphs 4 to 13 and our reply submissions at paragraphs 2 to 7, and in our outline handed up today at paragraph 2, to set out what your Honours can find as a matter of fact from the circumstances. Can I now go to those circumstances in order? Given the time available, I will give your Honours case book references and take your Honours to some of the detail in some of them.

The first point we would wish to make is that the Court can infer that establishing the plaintiff’s identity is necessarily anterior to procuring any other country’s agreement to receive him via some resettlement arrangement. The basis for that inference is twofold. The Department has raised the plaintiff’s potential resettlement with the United States – that is at special case, paragraph 78.3 and the supplementary special case which America, it shows, has declined to consider that resettlement at paragraph 4.7.

The United Kingdom, in the special case at paragraph 78.4; New Zealand, in the special case at 78.5 and the rejection in the supplementary special case at paragraph 4.5; and Canada, in the special case at 78.6 with the rejection in the supplementary case at paragraph 4.5 all have responded that the inability to positively confirm the plaintiff’s identity would likely preclude the plaintiff’s settlement – that is in the supplementary case, 4.7; the special case concerning the USA at 78.3 and the supplementary case at 4.6, concerning Canada.

The second matter we would seek to take your Honours to is that the Department’s position on making any headway on the issue of the plaintiff’s identity can be discerned from the most recent report of the Department. Can I take your Honours to that relevant paragraph? It is in the special case book at pages 507 to 508. I just particularly want to address, your Honours, paragraph 55 at page 507 which refers to the plaintiff’s information raising issues of his credit concerning his identity and then the conclusion drawn:

Any determination as to his identity must be made exclusively on independently verifiable information, of which there is little at present. It is possible that the results of the investigative avenues specified under the heading Information Gaps may generate further leads to verify or confirm the Client’s identity, but currently there is nothing in his interactions with the department that is capable of definitively establishing his identity.

Then, at paragraph 57, the conclusion is that the plaintiff’s:

identity continues to be assessed as not supported and is likely to remain so until new, verifiable information emerges –

and the investigation is to continue. Of course, those conclusions are also to be considered in the context of paragraph 76 of the special case, which says that – is an agreed fact:

The defendants are presently unable to point to any particular avenue of inquiry that is likely to succeed in establishing the plaintiff’s identity.

And:

In the absence of new information, the defendants will likely remain unsatisfied as to the plaintiff’s identity.

The third point we would make is that there is no real prospect of uncovering additional, independent identifying information that could resolve the defendants’ concerns about the plaintiff’s identity or, put another way, could satisfy the Court objectively that there is a third country that is either under an obligation to or is willing to resettle the plaintiff.

KIEFEL CJ: Mr Merkel, what clearly sets this case apart from other cases, including AlKateb, is that a large part of the difficulty, it would seem, in establishing his former residence, his nationality or his identity is the plaintiff has not – well, it cannot be said that he has not volunteered information; he has volunteered many, various, inconsistent, conflicting accounts. The report to which you have referred at page 503, paragraph 39, entitled “Credibility”, suggests that the basic details the plaintiff gave of his movement around Europe may likely true, but it is:

likely he is concealing details as his memory is extremely strong in some aspects and extremely weak when it comes to areas that are more pertinent to confirming his identity.

That puts this case in quite a different light from others. What is the Court to make of drawing an inference where the plaintiff does not assert that he has no information pertinent to himself, but he is not divulging it.

MR MERKEL: Your Honour, there are a number of answers. That is one of many circumstances that are relevant to the objective determination ultimately to be made that he has been found by the Department properly and reasonably to lack credibility in much of what he said; not necessarily everything. But the second and more important matter, your Honour, is whether objectively there are any circumstances which it can be established that he is concealing that could possibly fall within what has been defined as independently verifiable information.

I will take your Honour through all of the facts, but ultimately the conclusion which we ask the Court to come to is that this credibility issue ultimately comes down to no more than that the Department suspects – and this is borne out in some of the delegate’s decisions that the plaintiff has concealed some information which might assist. But the Department is not able to identify what that information is and

KIEFEL CJ: Well, that is chicken and egg, is it not?

MR MERKEL: Well, except, your Honour, we will go to the information that was derived from Norway. There is objectively identifiable information about who he is, which has been established by his

KIEFEL CJ: Which he contradicted later.

MR MERKEL: No, not the objectively identified information that shows his identity in Norway, your Honour, which was where he went to school in 2004 until he left in 2010. It was his country of residence. It has been independently verified that he went there as a schoolboy.

KIEFEL CJ: Although there is some doubt about his age. I mean, there are doubts all the way through. Could I just clarify two aspects, Mr Merkel, and I shall leave you of course then to develop your argument about the facts and how the Court approaches this rather unusual case. It is not suggested - I do not understand from your written argument and submissions that the plaintiff asserts that he has no memory at all from whence he came, where he was before Norway, connections he has had with certain countries; I do not understand that to be the case.

Rather, he has given conflicting stories. Each of them, there has been an attempt to verify, and there have been difficulties. And I do not understand that it is suggested that the plaintiff suffers from any mental health issue. The transcript of directions before Justice Gordon indicates that that matter was raised with the plaintiff’s legal advisers, and the Court was informed that there were effectively no issues. Am I correct in that?

MR MERKEL: Can I answer it in a more neutral way, your Honour?

KIEFEL CJ: It was raised directly with you, Mr Merkel.

MR MERKEL: No, I was not at the directions hearing.

KIEFEL CJ: I am sorry, it was Mr Burnside. I do apologise.

MR MERKEL: Whatever the answer is, I accept, but the shorter answer is that we have not put in the special case anything that would come into the category your Honour has put to me.

KIEFEL CJ: But the question of whether there should be some examination or whether it was suggested that there were any mental health issues were raised directly with senior counsel then appearing for the plaintiff. So we must proceed on the basis that there is nothing. It is not suggested that the plaintiff suffers from either a lack of memory or any mental health issue which would prevent him from volunteering information which he has personal to himself.

MR MERKEL: Your Honour, he has volunteered conflicting information, we accept that. We have not put forward a mental health explanation for that, we accept that. But we also

KIEFEL CJ: Nor asserted any problems with memory.

MR MERKEL: I do not think we have – I think we go by what is in the special case, your Honour.

KIEFEL CJ: Yes.

MR MERKEL: And I do not think we can say that.

KIEFEL CJ: No.

MR MERKEL: So we accept that credibility issue has arisen. But ultimately, your Honour and this is why I wanted to take you through this material quite comprehensively to the extent I can in the time – ultimately, credibility alone and suspicion that something may not have been forthcoming is not a substitute for identification of any facts that could possibly change the current situation, or any facts that have a real prospect of changing the current situation.

Those facts necessarily are something relating to where he may be born or something identifying his parents in a way that some third country would recognise him to be a parent of its nationals and, therefore, open a gateway towards resettlement or if it be put that other countries might consider resettlement, some facts of that kind that would overcome the present problem.

GORDON J: Can I ask a question, Mr Merkel, and that is this? I would be very grateful if you would address the contention, as I understood the Commonwealth’s submissions and the facts, that he is not cooperating.

MR MERKEL: We say that is not a fair view of the facts and I will take your Honour to it. The only thing he is not cooperating – has not put within that category is the failure to go, as it turns out while he is in Canberra, to the Moroccan and Algerian embassies. His solicitor wrote a letter – that is the only failure to cooperate. I should say there is a finding by the delegate of the Minister that the plaintiff had - and I will take your Honours to it - given all relevant information and used reasonable endeavours within the statutory test to give any information that would be verifiable about his identity and his past.

KIEFEL CJ: In particular, whether or not he is potentially Algerian, which would require him to speak Arabic so that it can be assessed.

MR MERKEL: Yes, but again that takes us on a certain merrygoround, your Honour, because what happened is - and I will take your Honours to it - but jumping ahead for your Honour Justice Gordon’s question

GORDON J: I do not seek to take you ahead. I just seek to say that I think that when you get to the assertion that it is just conflicting stories you will need to address the contention which seems at least arguably live on the facts that he has not cooperated at points and is currently not cooperating.

MR MERKEL: Your Honour, cooperation in the past has to have an outcome. The evidence is that he had interviews in 2012, which I will take you to, with the Moroccan Embassy where they said he is Algerian and declined to accept him as Moroccan. He went to the Algerian Embassy. They listened – they had his fingerprints and had recordings - and I will take your Honours to this passage – they then said he is not Algerian.

The Commonwealth stopped going on the basis of some late view of accent and got an expert linguistic analysis done of his early recording which was the time it was most relevant rather than now affected by nine years of detention and that concluded with 80 per cent confidence or accuracy that he did not have an Algerian dialect but spoke with a Moroccan accent and he did not have – he could not speak Hassaniya.

That sent the Commonwealth back to say, well, he should now go back to the Moroccan Embassy but the Moroccan Embassy has declined any recognition of him and we wrote and said in respect of the invitation - and it is set out in the supplementary special case - is there any basis that the Moroccans have put forward that they might change their mind, is there any information you specifically want and can you put any questions that you would wish to raise in writing so we can answer them. The Commonwealth did not respond to that. They just called off the interview and brought both the Algerian and Moroccan Embassy inquiries to an end.

What we are left with ultimately, and this is the bottom line of the facts that I propose to take your Honours to, is that there are no objectively or independently verifiable – there is no independently verifiable information the Commonwealth is able to point to that the plaintiff has failed to present, or that he could have a capacity to present

GORDON J: Is that right, given paragraph 75 of the special case? I just choose one example, Mr Merkel. I just want to make sure I understand what you have just put to the Court.

MR MERKEL: Yes, your Honour, because

GORDON J: But that is not – the Algerians are not saying he is not Algerian. They are just saying until you speak Arabic we cannot work out whether you are Algerian. Is that not the position?

MR MERKEL: Yes. But, your Honour, I will take you to the passage. They were given the recordings of his original interviews, which the linguistic analysis said did not have an Algerian accent. So they had those recordings, and I will take your Honour to that.

NETTLE J: But it is true he refuses to speak Arabic in the interview, does he not?

MR MERKEL: That is true, your Honour.

NETTLE J: Why does he refuse to speak it, if he has nothing to hide?

KIEFEL CJ: Particularly when the day prior to his interview he claimed to be from Algeria.

MR MERKEL: Your Honour, I can only go on what the record shows, which is that irrespective of whether he refused or not, the Algerian Embassy had the most reliable recording they could ask for.

NETTLE J: Well, you have said that. But obviously for him to speak it would be more valuable.

MR MERKEL: With respect, the linguistic analysis says that the best time to check is the recording, which was taken at the time of his arrival in Australia in 2010. Your Honour, that linguistic analysis has firmly said he is not Algerian. It is one thing to say he refused to speak Arabic to the Algerian Embassy. It is an entirely different thing to say that that could have had any consequence; because the consequence is that the Commonwealth, in its most recent submissions, have dropped any claim, in effect, or substituted a claim that he should go to the Moroccans again, because he has a Moroccan accent. There is no basis for

KIEFEL CJ: I thought it was an Algerian accent.

GORDON J: Algerian, I think, Mr Merkel.

BELL J: Mr Merkel, if you go to the supplementary special case at paragraph 4.2.2, it is stated that:

The Department advised the Plaintiff’s solicitor that it considered it crucial that any proposed meetings with the Moroccan and Algerian Embassies take place in person, in order to provide Embassy officials an opportunity to speak to the plaintiff in Arabic.

Now, whether your contention be right or wrong respecting the superiority of a recording taken nine years ago, the evidence would seem to be that, in the view of the Commonwealth, in its endeavours to establish identity, it is crucial that the plaintiff cooperate by going to each of the Moroccan and Algerian embassies and agreeing to speak in Arabic. The refusal to do so does tend against support for the inferences since, on one view, it is in the plaintiff’s hands to take steps that the Commonwealth considers crucial to the resolution of matters bearing on whether there are countries that would receive him.

MR MERKEL: Your Honour has addressed the supplementary special case. At paragraph 4.2.1, we say the response of the Solicitor to the Commonwealth, particularly in view of the 2012 situation, which I think I do need to take your Honours to because this matter was covered comprehensively in 2012 and it is not suggested any further facts or information would be relevant. But at 4.2.1 what is really put there is that to check – can I just go back one step. The Commonwealth has generated a great deal of activity since early 2018, after a great deal of inactivity over a long time, once it was foreshadowed that these proceedings would be pursued and commenced.

One needs to have a certain degree of caution about looking at what is being asked for during that period, having regard as to what has happened over the last eight years prior to that period, and it is in that context that the Solicitor had written to the Commonwealth asking that the reason for declining to attend is that:

the utility of such a meeting has not been demonstrated by the Commonwealth, because there is no evidence: (i) that the Embassies have expressed a willingness to reconsider the positions they respectively adopted in 2012 as to the Plaintiff’s identity or nationality (specifically, the Moroccan Embassy’s position that the Plaintiff is not Moroccan, and the Algerian Embassy’s position that it could not confirm the Plaintiff’s identity and nationality); (ii) that the Embassies consider that a further interview with the plaintiff in Arabic could of itself provide evidence that might change their respective positions; or (iii) that further interviews between the Embassies and the Plaintiff could overcome the matters stated at paragraph [76] of the revised special case.

The Department advised the Plaintiff’s solicitor that it considered it crucial that any proposed meetings with the Moroccan and Algerian Embassies take place –

But the solicitor for the plaintiff offered to respond to any written questions.

BELL J: But no request for written questions was made. A request was made which may not have been productive of an outcome that cast light on identity, but plainly arguably might have assisted, and no explanation is offered for the refusal to comply.

MR MERKEL: When you say no explanation is offered, if your Honour regards that as not an explanation, then I cannot say any more was offered than I have just read out to your Honours.

NETTLE J: What is to lose by going to the interview? Why write back artful letters? Why not just say, “All right I will go”, and go through it, and then say, “Well, that didn’t help very much”.

KEANE J: It is the taking of the adversarial position when, as has been said, there is nothing to lose.

NETTLE J: Unless, of course, there is something to hide which it is feared might be found out were there cooperation.

MR MERKEL: Your Honours put the explanation – I suppose I should take you to what happened in 2012, in fairness to the plaintiff, because I think that does raise the question

KIEFEL CJ: Yes, Mr Merkel, please.

MR MERKEL: It raises the basis for the questions the Solicitor had asked. It is in the special case book at 327, your Honours. At page 327 it has got the interview with the Moroccan Embassy on 31 May 2012. It starts off with an email from Elvir Tupkovic and it talks about organising the meeting and it is:

The following is noted:

- Moroccan officials confirmed that the client is not Moroccan.

- The officials advised that the client is not from Western Sahara.

- The officials advised that the client appears to be from Algeria, being an Algerian Berber

KIEFEL CJ: You are being careful about redacted material are you not, Mr Merkel? This is confidential material.

MR MERKEL: Your Honour, is that redacted from the

KIEFEL CJ: Well, it is coloured on our copy.

MR MERKEL: Would your Honours excuse me? No, it is not redacted, your Honour. I think it is highlighted because that is what the record is.

KIEFEL CJ: Very well.

MR MERKEL: My understanding - and I hope I am corrected if I am wrong - is that is the plaintiff’s name is not mentioned - I will not mention in open court.

KIEFEL CJ: I see. Well, names, plural. Yes.

MR MERKEL: Yes, your Honour:

- The officials advised that the client appears to be from Algeria . . .

- The officials stated that the client speaks fluent (and not childlike) Algerian Berber dialect.

- The officials are able to speak Berber, Algerian and Moroccan -

and so forth. They used those languages as part of the interview:

- The officials stated that the client could not confirm that he is from Las Palmas

Further down:

- The officials stated that the client did not speak Hassani (language used in the region of Western Sahara).

- The officials advised they are happy to conduct a fingerprint check . . .

- The officials stated it would be useful to contact the Algerian Embassy . . .

We now know that there was a fingerprint check. Can I just say to your Honours, when your Honours put the context of the topic of cooperation in context, at paragraph 74 of the special case you have the foundation for the delegate’s finding that the plaintiff has taken reasonable steps to provide objectively a verifiable information of the kind that might lead to his identity, and 74 sets out the extensive checks that have been made. Can I go then, your Honour, to paragraph

GORDON J: Just before you leave that though, the next paragraph of that email is, in a sense, of equal importance about this cooperation which we are now looking at, because it goes on to say that the Moroccan Embassy received a call from someone whose name was set out there, which was one, as I understand, of the names used by the plaintiff, advising that he was detained, that he spoke fluent Algerian Arabic as well as Algerian Berber. So we have this, in effect, issue from this time, from 2012, being an issue which is now the subject of the request.

MR MERKEL: Then it goes on to say that this was presented to him and he claimed it was not him. But I can only

GORDON J: I accept that, but

KIEFEL CJ: But that the story was very similar to a story he had previously told under another name. It is going to take a while to get through these facts, you realise, at this rate, Mr Merkel.

MR MERKEL: Your Honour, I appreciate that. I was going to take your Honour next to the Algerian Embassy

KIEFEL CJ: Yes. Where is that?

MR MERKEL: which is at 328 on 28 June, and I will not read it all to your Honours, but it sets out, say, starting from twothirds of the way down:

Mr Hadj Moussa mentioned on the way home that he would at a minimum need to know the [plaintiff’s] true date of birth and the name of his parents in order to follow up with authorities in Algeria. [The plaintiff] did not provide these details during our interview and maintains his assertion that he simply does not know. I know this is not the outcome we were hoping for

This is the internal memorandum:

but nevertheless, I think this was a very worthwhile exercise –

Then over the page

BELL J: Just before one goes to that, one sees there reference to the plaintiff’s unwillingness to speak in Arabic on that occasion.

MR MERKEL: That is so, your Honour.

BELL J: So that has been - in 2012 his cooperation did not extend to speaking in Arabic, and that continues.

MR MERKEL: Your Honours, I cannot dispute that had the plaintiff taken every possible step ever asked of him whether reasonably or unreasonably to try and cooperate that that has not – I cannot say that has occurred but ultimately the question becomes not his cooperation but what are the facts and what are the prospects of any facts emerging that can solve this

KEANE J: What makes that so difficult is absent his cooperation one cannot know what the prospects are. I mean, you are surely not suggesting that your client can, by noncooperation, make it impossible to know who he is and where he is from.

MR MERKEL: No, we do not suggest that, your Honour. We suggest

KEANE J: Then that is the relevance of the absence of cooperation, is it not? But absent cooperation, one cannot know, one cannot seek to know, but with cooperation one may know. But what you cannot ask us to infer is that absent cooperation it is impossible to know.

MR MERKEL: Your Honour, what we are endeavouring to do – not all that successfully up to date is to show that the information gap that the Commonwealth Department is seeking to close at the subjective level is not matched by the evidence objectively of what circumstances or information is able to be produced and is available to be produced if we change the current situation.

KIEFEL CJ: No. Is not the correct view of evidence in the context of the courts when inference – particularly when inferences are sought to be drawn and we are looking at the strength of the evidence - you look at the evidence that it was in the power of one person to give and the power of the other to contradict. That is the area we are in. You would be familiar with that statement, I think, Mr Merkel.

MR MERKEL: I am, your Honour.

GORDON J: The way the US Ninth Circuit put it is does he have the keys in his pocket, that is, are there steps that could be taken that would assist him. I know it is in the context of due process but it is, in effect, a question which begs an answer and that is why the cooperation is relevant. Does he have the keys in his pocket to get himself out?

MR MERKEL: I appreciate the force of what your Honour is putting to me. We have approached the submissions, possibly wrongly, but we have approached the submissions on the basis that objectively the only matter that might – information that might come forward that could produce a change in circumstances is independently verifiable information based upon what the Department’s criterion is and there is no basis in any of the material to identify any independently verifiable information that is prospectively available.

In other words, over nine years we have had interviews of the kind I have taken you to, fingerprint checks, follow up on social contacts, every possible line of inquiry one could imagine and I had not yet taken your Honours to but if I can just summarise it as to the significance of it - I have not taken your Honours to Norway because there is objectively verifiable information in Norway which is at pages 92 to 93 of the special case book where, particularly at 93, the information which falls into the category of independently verified information says that the report from the Norwegian Embassy said that the plaintiff’s date of birth, which was accepted in Norway, was the date there set out and that he has a residence permit valid until 24 September 2010. So it is not accurate to say that the plaintiff has no identity. He has a clearcut and established identity in respect of Norway, and a place of residence.

Then a photo is produced, so it is the same person, and in “Identity Confirmation” it is said in April 2010 Interpol in Canberra forwarded a response from Interpol Norway confirming that the fingerprints from the databases matched the identity of the plaintiff and the fingerprints were registered in the files and obtained in Oslo in April 2004. Then they say that the Norwegian police have concluded that the right date of birth is the date there set out and that date is then verified.

Later on in the papers, the Department spoke to a woman who was at school with the plaintiff in Norway. So we know that he went there to school, and in the reports of the RRT, in the first Refugee Tribunal case at special case book 165, at paragraph 94, the Tribunal found his place of habitual residence is Norway:

where he has lived from 2004, and where he has attended school, done work experience and participated in sporting events.

Then at paragraph 95, at special case book 165, from 2004 to 2010 the plaintiff:

lived in Norway as the holder of a humanitarian visa . . . he attended vocational schools there, found a work experience placement, participated in sports events and established a circle of friends.

Then at special case book 506, paragraph 51, there is an interview with a woman by telephone from Norway who confirmed she knew the plaintiff in high school. So that what we say needs to be taken in the balance as well, your Honours, is that none of that independently verifiable information provided by Norway contradicts the identity claimed by the plaintiff but also, in light of that objectively verifiable information, there is no suggestion in any information coming from Norway that the plaintiff has any identifying information about his parents or his place of birth or any third country that could provide him with country of nationality.

We know that on the special case books he had been removed from other European countries back to Norway, Norway was his place of habitual residence. So it is not as if we have a person who has no background whatsoever. He has that period from 2004 to 2010 in Norway, which does not suggest that any of the information the Commonwealth is now seeking is available. That is one part of the total information.

NETTLE J: Did you say there is no information to suggest that he has no information about his parents?

MR MERKEL: That is a double negative, I suppose, your Honour. What I am really saying is that, notwithstanding the capacity and the investigations the Commonwealth has made with Norwegian authorities and the plaintiff having been granted a humanitarian visa and having gone to school and resided there for six years, nothing has emerged that suggests there is information available as to his parents or his background other than in Norway.

NETTLE J: Has he not changed his story at least once about his parents’ identity?

MR MERKEL: He has, your Honour, which goes back to the credibility issue, but I am looking at information that was available from Norway and it is not suggested in any of the material or the Commonwealth’s investigations during that sixyear period, when on the face of it he had nothing particularly to hide, that he knew of his parents or had any information about his parents.

KIEFEL CJ: Well, you cannot really say that he had nothing to hide.

MR MERKEL: I suppose, your Honour, all I can say is that on that

KIEFEL CJ: He was then what he said he was and he later contradicts it and says he was not, so that does not take us terribly far.

MR MERKEL: No, the credibility issue I cannot quarrel with, your Honour, but I am taking your Honour to information that comes up independently of what he said.

NETTLE J: But you are asking us to draw an inference from objective fact that there is no basis to suggest that he knows the identity of his parents. There is a basis to suggest that he knows the identity of his parents, which is that he has told falsehoods about it.

MR MERKEL: As I said, your Honour, I cannot resile from the Department’s suspicions and its belief which I have said is properly founded that there is the credibility issue the Department has indicated.

NETTLE J: I do not mean to stretch the point, Mr Merkel, but unless it is suggested that what is contended for by the Commonwealth is not soundly based in the facts - and as at present advised, it appears to me that it is - I cannot see what the point is of saying that the objective evidence does not establish that he does not know.

MR MERKEL: Could your Honours just excuse me for a moment?

NETTLE J: Certainly.

MR MERKEL: Your Honours, could I ask for a slightly earlier break to see if I can assist your Honours further on this?

KIEFEL CJ: Yes, Mr Merkel, we will take our morning break now.

AT 11.02 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.19 AM:

KIEFEL CJ: Yes, Mr Merkel.

MR MERKEL: If the Court pleases. In view of the matters your Honours have raised with me we have raised those matters with the plaintiff and he has instructed us that he is prepared to go to interviews with the Moroccan and Algerian embassies and speak in Arabic to them. He has also instructed us that he is agreeable to cooperating with any reasonable request that the Commonwealth may make.

In those circumstances, we would ask if the Court would adjourn the current proceeding to enable the steps that have been foreshadowed by your Honours with me to be able to be carried out and if the parties can agree on it, a further supplementary special case be created to bring the matters up to date and the Court will then determine what the future conduct of the matter would be. I understand my learned friend opposes that request for an adjournment. We can explain

KIEFEL CJ: It is hard to know what the shape of the future – what shape this now takes and whether or not – what is going to be involved with full cooperation. That might mean factfinding.

MR MERKEL: Your Honour, that is why we would ask for an adjournment and it no doubt could come back for directions before a single Judge to see whether it is appropriate at that point to go to a Full Court. Our real problem, your Honour, at this stage, is that the facts have been dynamic, in the sense that the matter was fixed for hearing. There were requests to attend the Moroccan and Algerian Embassy. We had to agree on a special case, which meant that we had to agree on the facts as they then were, and this issue obviously has come up as a significant issue. But on the other hand, the case obviously raises very important questions about the Act in its current form.

The plaintiff has been in detention for nine years and on the way the Commonwealth is putting its case that could continue indefinitely. Your Honours, we would say that in those circumstances an adjournment is appropriate. The alternative would be for the Court to continue to hear the matter on what it would appear to be on the matters at least five of your Honours raised with me are incomplete facts which are able to be supplemented. Whether they are sufficient or not is a question that remains to be seen.

But that is far preferable, given what has occurred in the case, the expense that has occurred and the issues, to what the alternative would be; would be for the case to have new facts and added facts and reissued when, really, all that is extant are these matters that your Honours have raised with me. We say that is the appropriate way for the matter to proceed. Also it gives us the opportunity, your Honour, of if need be presenting explanations, which have not been able to be agreed in the agreed special case or the supplementary special case to date, which we would have to consider.

KIEFEL CJ: We should hear from the SolicitorGeneral for the Commonwealth in relation to the request for an adjournment.

MR DONAGHUE: Your Honour, that application is opposed. Your Honours will have noted, as is common in a special case of this kind, paragraph 1 commences with the statement:

This special case states the facts and identifies the documents considered by the parties to be necessary to enable the Full Court to decide those questions.

When the matter was referred, I mentioned to Justice Gordon that we might need to update the special case beforehand and her Honour pointed out the matter would be referred on the basis of the special case. If we agreed further facts so be it. We did that in the form of the supplementary special case which squarely dealt with the matter that is now in issue.

We wrote to the plaintiff on 8 November asking for these further interviews and no good explanation was provided as to why cooperation was now forthcoming. To say – when your Honours make what is, in our respectful submission, the obvious point that noncooperation must bear on the application of AlKateb to the facts of this case - to say now that is a course that justifies adjourning when the parties are assembled to argue the point we submit is not to grapple with the fact that the relevance of these facts has been apparent for months.

Perhaps, more importantly, the problem is much deeper than just whether or not the plaintiff goes and speaks Arabic to the Algerian and Moroccan embassies. When one talks about the extent of the cooperation that has occurred, the critical facts are those your Honour the Chief Justice identified that there is no basis to think that there are memory problems and that there is no basis to think there are mental health problems.

So, the situation is that we have a plaintiff with neither of those explanations who has given completely different accounts over a long period of time and one of those accounts, in particular, I want to – I will not take your Honours through all of the facts – but there is one document I think I need to take your Honours to.

If you could go, in the special case book, to page 266 – and this all goes to a factual case I would develop in more detail if it becomes necessary to do so. But it is impossible for your Honours to infer or to exclude the prospect that it is within the plaintiff’s power to give information that would allow him to be removed to Algeria. Your Honours have already noted the phone call where he said he was Algerian to the Moroccans. Your Honours may not have picked up that while he denied making that call at the time and walked out of the Moroccan Embassy, six months later he admitted that he did make the call, although he disputed some of the details.

So, we have a plaintiff who has rung the embassy and on an account he subsequently admitted – said he was Algerian – and given some background facts. But if your Honours then look at this fact in light of that, at 266 you will see that sometime after the embassy interviews in 2012 there was an interview with the departmental case officer – this is in 2014 – it is 24 September 2014. If your Honours look at about point 4 on page 266, next to paragraph 1, there is an interview where the new case officer was getting to know him and he said he was ready to provide:

new information with the proviso that “I won’t tell you everything. I’m not ready for it. . . I need (to keep) some secrets because I’m scared (about) what happened to me all my life”.

Then he gave an account of he and his older brother being born in Algeria in a refugee camp and he gives some memories of that. He says in the last bullet point on page 266 that he is in Skype contact with his older brother who lives in Algeria. He initially gave the impression that his parents were living in Dakhla, which is in Western Sahara, but later said they lived:

somewhere in Algeria where they are “most safe”.

On the top of the next page, some facts about the parents in Dakhla:

in the southern coastline of the Moroccancontrolled region of Western Sahara. His father is still working and moves around –

in Algeria and Mauritania. There is a suggestion in the next bullet point that:

His mother “loves (his wife) -

This is a woman he married in an Islamic ceremony in Australia, suggesting there was some contact between the family and the mother and then he said:

He does not know his parents’ names, or the names of his brothers -

and he was challenged on that, on the basis that it “beggars belief” and it was put to him that this was the kind of information he was withholding that he had intimated at the start of the interview that he was going to withhold. He said at the bottom of that page, about point 9 on page 267, that he was giving them new information, as he had finally grown up and was no longer fearful of what may happen if he was returned to Norway. Then he was told he should not get up his hopes about that. Then at paragraph 4, the middle of 268, he acknowledged it would be hard to go to Norway:

He was adamant, however, that he would not countenance removal to his birth region of Algeria or Morocco or surrounding countries such as Mauritania.

He said he wanted to visit the family. But then later in that paragraph:

his family members in Morocco and Algeria have no resources and he did not want to put them in danger by suddenly appearing . . . he had not seen his family for “about twenty years” . . . and his life is now tied to Australia.

In our submission that is just one, we say, very important fact within a realm; we have listed I think nine or 10 in the oral outline we gave your Honours, so I could take you through. But that at least provides a strong foundation to think that there is information available to the plaintiff that is being withheld and that, if provided, might well have the consequence that he could be removed to Algeria. I do not say it would definitely have that consequence, but it cannot be excluded to the level necessary to engage AlKateb.

The kind of cooperation, in our submission, that would need to be forthcoming, is not just going to the Algerian Embassy, but giving information that he must have as to the names of his parents, and further information of the very kind that is demonstrably lacking in the statement that I have just read.

Now, yes, there have been many different statements given, many different stories; this is only one of them. But this is a story that ties in with a lot of other facts that tie the plaintiff to Algeria, including protection visa facts about being born in Algeria, speaking fluent Algerian Berber, calling the embassies, matters of that kind.

So that if your Honours were to adjourn the matter on the basis of the embassy interviews, the likelihood is that, unless further information is forthcoming, we will be back having much the same argument that is raised on the special case as it currently stands before the Court; and that is the basis for my opposition.

BELL J: I understood, perhaps wrongly, that the application was not only advanced on the basis of the willingness now to go the embassies of Morocco and Algeria and speak in Arabic, but also to cooperate more fully with any

MR DONAGHUE: Hopefully that will happen, your Honour, but that is really

GORDON J: The submission was they would, as my notes are, cooperate with any reasonable request.

MR DONAGHUE: Your Honours, if there is cooperation of the kind that I have been talking about, then the factual basis for this application will change so completely that it will be a different case. In my submission,
your Honours should dismiss this case – this special case and these sets of facts unless – if my friend seeks to press on, notwithstanding the impediment your Honours have identified, then your Honours will need to decide the case. But the impediment is a substantial one.

If there is cooperation then your Honours might never be troubled with this matter again and if you are troubled with the matter again you will be troubled with it on the basis of a factual record that is quite different to that now before the Court.

KIEFEL CJ: Yes. Thank you, Mr Solicitor. Mr Merkel, as I understand your position, if the adjournment is not granted you wish to proceed with the matter to determine the first issue about inferences and then, if necessary, proceed to the other questions raised – to the questions raised in the special case.

MR MERKEL: Yes, that is what we would do, although your Honour Justice Gordon did encapsulate what we did say, that the concern we would have is that if we did proceed the facts are incomplete and it is obviously in the interests of justice that this

KIEFEL CJ: No, that means it is your decision on instructions from your client.

MR MERKEL: Yes. Well, as I understand it

KIEFEL CJ: If the adjournment is refused then it is a question – the ball is in your court, as they say.

MR MERKEL: Yes. If the adjournment is refused we would obviously proceed because one of our grounds is that the current statutory scheme is unconstitutional and we have standing to bring that claim. It is only if there is a reading down of the statutory scheme that we get into having to determine and make these inferences to show that we fall within the readingdown provisions

KIEFEL CJ: There is the preliminary issue about the inferences, though, which means that, depending on the view the Court takes, those questions may not be reached.

MR MERKEL: Well, we would say that is not so, your Honour, because there is an alternative basis which is that if the provisions are not read down, and if they have the capacity to operate in the way in which we have set out in our outline, then they are unconstitutional and the detention that is currently being engaged in is unlawful. So the constitutional question will arise irrespective of the inferences, because the only basis on which he could be challenged for raising those constitutional questions, your Honour, are that he does not have standing, but he clearly has standing because he is in custody.

So we say that in the current form of the statute as it operates, and the way in which the Commonwealth are saying it operates, it does not meet the Lim test. But that would be putting half of the case with the hurdle on the second half being that if it is read down, then we have to get caught up in the fight over the factual inferences and we say it is obviously in the interests of justice that the whole matter be heard at one hearing on the facts, as they are best able to be put.

It is not correct for my learned friend to say, with respect, that when we come back we will necessarily be in the same position. We will not. If the instructions that I have are carried through we will have two further different circumstances. One will be the completion of the interview process that your Honours have raised with me as a matter of concern, with the Moroccan and Algerian Embassy. Two is the cooperation to meet any reasonable request. If the outcome of that is that the Commonwealth is still unable to identify a third country, then we will have to determine the issues that we say are the other half of the present case.

KIEFEL CJ: If you have finished your submissions the Court will adjourn briefly to decide the course it will take.

AT 11.34 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.39 AM:

KIEFEL CJ: Mr Merkel, the adjournment is refused by the Court. The Court wonders whether you would appreciate a further short adjournment to consider the position of your client in the event that you proceed on the facts as they are presently before the Court. It may well be, of course, in the future, as you would be aware, that it is contended that an issue estoppel arises on the facts and that your client’s position to put forward a different case might be foreclosed.

The Court offers no view on that but is concerned about the position of your client and the possibility that you and your instructing solicitors may not have had sufficient time to turn your mind to those possibilities. Would you appreciate some further time?

MR MERKEL: Yes, your Honour.

KIEFEL CJ: All right. Would you advise the Court when you are ready to proceed further?

MR MERKEL: Thank you, your Honour.

KIEFEL CJ: The Court will adjourn.

AT 11.41 AM SHORT ADJOURNMENT

UPON RESUMING AT 12.39 PM:

KIEFEL CJ: What is the position, Mr Merkel?

MR MERKEL: Your Honours, thank you for the time. Can I explain the position as best I can as follows, your Honours. We have been talking with our learned friends and on the basis of those discussions we have sought instructions from the client to agree to an order that the order referring the special case to the Full Court be set aside; and I understand that the Commonwealth does not oppose that.

The reason why we have had the delay that we have is we have been in a position where we have been unable to get informed instructions for that course to be taken, and we have that difficulty confronting us which we are still trying to overcome, but it is a bit of a hurdle at the moment for us, your Honours. But if the case were set aside on that basis, subject to any – the orders referring the matter, the special case were set aside.

KIEFEL CJ: Would it be that, or leave to discontinue?

MR MERKEL: Well, that is not the basis on which we have been discussing it with our learned friend. The order that we are hoping to get instructions for, which will not be opposed, or would be agreed to by the Commonwealth if we can get those instructions, is the order referring the special case be set aside. My learned friend would, I understand, make an order for costs and we would not have anything to say in opposition to that to the Court.

KIEFEL CJ: How long do you think you need, Mr Merkel?

MR MERKEL: I think, if we are unable to get informed instructions by 2.15, we are not going to do any better any later than that, your Honour.

KIEFEL CJ: All right.

MR MERKEL: I apologise for that position, but that is the position we are confronted with, your Honour.

KIEFEL CJ: Yes. The Court will adjourn until 2.15 pm.

AT 12.42 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.15 PM:

KIEFEL CJ: Yes, Mr Merkel.

MR MERKEL: Can I express my gratitude to the Court for the time that your Honours have given us. The situation is as follows, your Honours. We have not been able to get informed instructions to apply to the Court on behalf of the plaintiff for the order made by your Honour Justice Gordon on 21 November 2018 remitting the matter to a Full Court to be set aside. But having regard to our duty to the Court, we would see it as a situation where, if the Court would of its own motion make that order, I understand the SolicitorGeneral will agree to it, or not oppose it, and that would enable further steps to be taken if that is able to be achieved.

KIEFEL CJ: We are getting a little exercise today. The Court will adjourn.

AT 2.17 PM SHORT ADJOURNMENT

UPON RESUMING AT 2.19 PM:

KIEFEL CJ: Absent an application by the parties to take courses of action earlier indicated by the plaintiff, the Court proposes to proceed to hear the matter. The parties have one hour each to argue their case and by that I mean, as foreshadowed at the outset today, Mr Merkel, we would like to hear argument as to how the inferences outlined by the plaintiff can be drawn and, given your comments this morning, how you contend that the questions on the special case are reached without those inferences being drawn.

MR MERKEL: If the Court pleases. I think I had taken your Honours, before I asked for the matter to be adjourned, to the information upon which we rely. I think I had got to the information from Norway. Essentially what we say, after looking at that information, that the evidence and the material before the Court has got to the stage where any relevant inquiries that are likely to be able to substantiate the plaintiff’s identity have been exhausted and there is nothing in the material that suggests that there is any independently verifiable material that would be able to be provided that would resolve the problem that the Commonwealth has confronted.

Over the last nine years that material has not been forthcoming. The only material which realistically could be provided that would change that situation is that the plaintiff provide to the Commonwealth the identity of his two parents in a manner that would identify them as nationals of another country and would be able to identify them at present either as alive or as his parents through some form of testing and there is no evidence whatsoever that that material has been withheld.

The fact that his credibility has been challenged and the fact that he has given inconsistent accounts and inconsistent information can cast doubt on all of the material that has been put forward by him but it does not fill what we say is the criterion required by the Commonwealth of having independently verifiable material as to their identity in a way that could affect a judgment of the Commonwealth that he has access to a third country.

That is why we have made the point that the inquiries about his identity are all anterior to any outcome of that investigation which would show his parents’ nationality. In truth, that is all that this is really about. He cannot prove his birth. There is no evidence that he could prove his birth, it is really his parents’ identity that is said to be the information that is missing.

We do emphasise the Commonwealth’s position has been that to further his investigation it must be exclusively on independently verifiable information. There is no suggestion that an interview with the Moroccan or Algerian embassies would change their position merely because of his dialect or accent. There is no evidence about what steps those countries wish to take before they would even consider his application to be taken there as a third country to which they might be taken.

We rely on the Minister’s delegate’s decision of 2 January – which is at special case book 460. Can I take your Honours to that? I say to your Honours that that case was conducted under the rubric of section 91WA(2) of the Act. It was a safe haven application. Subsection (2) says that he would be disqualified from making that application if the Minister was satisfied that he had:

a reasonable explanation for providing the bogus document –

and:

(i) provides documentary evidence of his or her identity . . . or:

(ii) has taken reasonable steps to provide such evidence.

The delegate conducted the inquiry into that matter. The finding of the delegate at page 460 – at page 463 – sorry, the decision starts at 460 but the relevant finding at 463, in the fourth paragraph, is that:

The applicant is unable . . . to provide any documentation to confirm this claimed identity. I accept as plausible that the applicant may have been aware due to his various attempts to travel to other countries to seek asylum of the need to dispose of [his] passport . . . The applicant claimed at his SHEV interview that he threw the passport away as he had been scared he would be returned to Norway. Checks conducted by the Department using the applicant’s fingerprints confirm the applicant attempted to travel to Canada, Denmark, Iceland and Germany using counterfeit or fraudulently obtained passports and false identities. On the basis of the applicant’s unsuccessful migration experiences I consider the applicant’s explanation for disposing of [his passport] reasonable. The applicant has provided information as outlined above regarding the steps he has taken to obtain evidence of his nationality and citizenship. I am therefore satisfied that the applicant has subsequently taken reasonable steps to provide evidence of their identity, nationality or citizenship and that subsection 91WA(2) of the Act does not apply.

We say that is a significant finding on the basis – then over at page 464, in the middle paragraph, there is a reference to the fingerprints and so forth. Then the delegate goes on to discuss the Algerian Embassy, and in fairness to my learned friends, there is a suspicion at the top of page 384 that he may have been concealing information from the Algerian Embassy. But the point we make from that report is that objectively or independently verifiable material of the kind that could lead to an outcome that discloses the plaintiff’s identity, was found by the delegate to have been provided to the extent that the plaintiff could do so. So we say that is an important point.

I think I need to take your Honours, on the Algerian point at 329 to 330 which I think I had briefly taken your Honours to this morning, at the bottom of 329 – or 328, we go to the information being provided from Algeria, and the information that was being said at the top of 329 was the problems confronting identity, parents’ names and dates of birth were being asked for, and then at the bottom of the page it said that:

I’ve listened to the interview –

That is the recorded interview:<

& also had an Arabicspeaking officer listen to it – & I’ve reassessed what part/s of the recording should be made available to the Algerians. Please copy only the part . . . This is the only section where the client is speaking Arabic and there are no questions or responses which might give rise to sur place claims or any other sensitivities. As requested below, please pass one disk to Tim & send the other to me.

Then at the next paragraph over at page 330:

I just got back from the Embassy of Algeria. I have provided the interview recording and transcript -

Then on 18 December, which is just below halfway down page 330, it says:

Email from Algerian Embassy to . . . unable to confirm ID:

Following your request for confirmation of Algerian citizenship of [the plaintiff], the Embassy has to regret to inform you that based on the provided document by your department, we are unable to confirm the identity and nationality of the abovementioned person.

So at each point in 2012 the inquiries from the Moroccan Embassy and the Algerian Embassy did not lead anywhere and nothing has emerged since that date to suggest that any further inquiry will result in any advance on the current situation.

We next say that it is relevant in the context to the Court to determine that on the facts, the plaintiff is stateless – is a stateless person, and in our volume 5 of the list of authorities at page 1871, which is tab 35, we have set out the relevant portions of the Convention Relating to the Status of Stateless Persons. The definition in Article 1 which is in paragraph 13 at page 1885, is:

“stateless person” means a person who is not considered as a national by any State under the operation of its law.

And can I just draw your Honours’ attention to paragraphs 23 and 24 which refers to state practice and this Convention is not just part of conventional international law, it has become part of custom international law and it looks to, not necessarily a strictly legal analysis alone, but in practise whether a state has recognised a person as having nationality and we say, notwithstanding the position taken by the Commonwealth, it is abundantly clear that the facts are that no state – that the plaintiff is not considered to be a national of any state, and therefore he is a stateless person.

We need to explain the relevance of that, and that is that it is a starting point for an understanding of the problem that has arisen concerning his identity and his origins. We would say that the starting point, being stateless, means that we start from the point that there is not entitlement on the plaintiff’s part to be sent to any nationality or any country as a citizen, and we say that helps explain the problems that have occurred.

We say that, in respect of the Department’s attempts to find a country to take the plaintiff, I have taken your Honours to the extraordinary investigations that had been taken and were set out in the special case at paragraph 74. I do not need to take your Honours back to it. But after nine years, no country that the defendants have asked to take the plaintiff has agreed to do so. The identity assessment report at special case book 440 shows the extensive fingerprinting that has been done and finally, in the supplementary special case, Morocco has come back and said that there are no matching fingerprints.

The ultimate position that is reached with the plaintiff is his credibility has been damaged to the point that the Commonwealth will not accept anything he says about himself, so that the reality is progress is only possible if he provides information that can be independently verified. Save for Norway, where we do have evidence of his identity, there is no material before the Court that could satisfy the Court that he is in a position to, by independently verified evidence, show and establish his place of birth, the nationality identity of his parents, in a manner that would satisfy a third country that he is a citizen or is, under their law, entitled to go to that country.

So we say that the essential problem that has confronted the plaintiff - the credibility problem - has got to the stage where, assuming we are correct, that there is nothing he can say to the Moroccans or to the Algerians at their embassy that will identify his parents’ nationality in a way that is independently verifiable, that there is nothing about his failure to go to those interviews that is likely to fill that gap; nor is there anything, after nine years of that information not having come forward, that is likely to fill that gap or that there is a real prospect of that gap being filled.

We say that that raises the most difficult question in the present case. The Commonwealth fairly and appropriately refers to conflicting information which suggests he can identify his parents and other information which suggests he cannot. The credibility of both conflicting statements is a central issue. The Commonwealth no doubt will like to refer to the statements that he could identify them, but that cannot be reconciled with the statements that he cannot identify them.

The real conflict this case raises in this area of fact and inference is that given the extraordinary period of nine years that has passed, if he does not reach that threshold at this stage there is no – and that is the four inferences of fact we are inviting that take us into the threshold on any reading down – on any reading of the relevant sections we are contending for, then those sections effectively put him in detention – custodial detention subject to the discretion of the Executive for life because there is no proper basis for considering that the current situation is going to change.

EDELMAN J: Do you accept that if he were to identify his parents that there would be a real prospect that his parents may have independently verifiable information as to his identity and nationality?

MR MERKEL: Your Honour, the starting point of that has to be that he is in a position to identify his parents in an independently verifiable way and having told conflicting stories there is no material, in spite of nine years of investigation, to suggest that he can identify his parents in an independently verifiable way. That is the credibility problem.

EDELMAN J: It could be independently verified by his parents.

MR MERKEL: Assuming, your Honour, that he is in a position to identify his parents but if his credibility is so damaged, as it has been by the Commonwealth’s position, that it cannot fill the gap because he said he does not have his parents, he does not know who they are - he said on another occasion he does and he has conflicting stories in between, we say that the gap that needs to be filled is the Court has to be satisfied that he is withholding information that could or would lead to the identification of his parents in a way that could identify their nationality.

We say that after nine years of failing to do so and after all the investigations, including the six years or so that he resided from schoolboyhood through to his early adulthood in Norway, there is not one skerrick of evidence in the 500 pages of the Court book that the Court can look to to show that he is withholding identifiable information.

The credibility gap effectively becomes a life sentence subject to the discretion of the Executive about whether they will say, well, we will not keep him in detention any more, which is one of the constitutional problems that this scheme throws up, and we say that that effectively converts a scheme for the purpose of deportation as a scheme for punishment on credibility.

We do need to confront the credibility issue and we do need to confront the requirement of independently verifiable information but we have got to the stage now where effectively after nine years neither has been produced that we say there is no real prospect established anywhere that it will be produced.

Your Honours, they are the submissions that we would – I am reminded by my learned junior that at paragraph 2.7 of the Commonwealth’s submissions - in the outline, sorry, that was handed up today – it says the plaintiff’s fatherinlaw alleged that the plaintiff’s parents and brother are in Algeria and he has contact with his mother. Can I draw your Honours’ attention to 496 of the Court book, paragraph 22, which is the Department response concerning the person who made that statement. The Department response at paragraph 22 is:

It is noted that the source of the allegation has a lengthy criminal history in Australia and has been implicated in migration fraud on several occasions, including the use of a false Australian birth certificate.

So, if that be the only independent information that the parents are known, other than the applicant’s own statements, the Commonwealth’s own material would show it is a wholly unreliable basis for saying that such information is able to be provided by the plaintiff. Your Honour, on the basis

GORDON J: What about 43 and 44 – the other reference relied upon by the Commonwealth on page 504?

MR MERKEL: Would your Honour excuse me for a minute?

GORDON J: Is that the same person?

MR MERKEL: I am told it is the same person, your Honour. Your Honours, that is the factual material that we would draw the Court’s attention to to support the inferences that we would invite the Court to draw from those facts. I am not sure whether your Honours wish to hear me further on – I will go on to address, if your Honours wish, the substantive case on the Act as well.

KIEFEL CJ: No, I thought the other proposition that you were putting forward this morning – put aside for the moment whether it actually appears in the pleaded case or the written submissions – was that you need not rely upon factual inferences that you have with the plaintiff’s standing that that might be sufficient to mount an argument. But I do not pretend to have completely understood the proposition for which you are contending.

MR MERKEL: Yes, your Honour.

KIEFEL CJ: Was it a departure from your written submissions and your pleaded case?

MR MERKEL: I do not think so, your Honour, because

KIEFEL CJ: Could you summarise your position for us?

MR MERKEL: The position is as follows, your Honour. Under the current regime, the legislative framework which we have set out in detail, which effectively makes the custodial detention essentially unconstrained and unreviewable by the Minister who makes a choice when a person is authorised to be detained under section 189, suffers from two sources of invalidity. The first is it does not satisfy the test in Lim because, as the present case shows, the purpose of deportation is no longer linked sufficiently

GORDON J: You mean detention.

MR MERKEL: Detention, sorry. Detention is not linked with the purpose of deportation. I would take your Honours to Lau v Calwell and Lim where it was made clear – but, particularly, in Lim – that merely having an obligation to remove, as soon as practicable, standing alone without other limitations on the power to stop it from being misused for a purpose other than deportation, was invalid.

The second level of invalidity arises from the detention now, under the current regime, being unconstrained and essentially unreviewable because the choice made at the point at which 189 operates depends entirely on a wholly unconstrained, unreviewable and unascertainable opinion of the Minister.

The decisions under Subdivision B and section 195A are privative clause decisions. They are made in the public interest, and essentially that immunises them from any review, so that it suffers from the vice identified by the Court in M96A that many cases where, if detention is made to depend upon the opinion of the Minister in a way that is essentially unconstrained and unreviewable, that offends the Lim principle.

Just to explain that further step, we say that Justices Hayne and McHugh were very conscious of the problem of the link between custody and deportation becoming very tenuous in situations where, as happened in AlKateb, it had to be contended that potentially the detention could continue for life. Their Honours, in passages we have sought to identify in our submissions, found an alternative, additional purpose of detention, being segregation from the Australian community, and your Honours have had this put in other cases.

KIEFEL CJ: Do these arguments mean, and do you contend, that all detention in circumstances such as this, all detention is unlawful?

MR MERKEL: These arguments mean that custodial detention is unlawful under the current statutory regime unless it is read down in the way in which we are contending. So that we have put the submission, your Honours, at paragraph 12 of our outline, and we have said in our submissions and reply submissions where those submissions are put, but perhaps going to our outline, if the construction in - we have put in paragraph 11, in other words, if there is no reading down, but if the AlKateb criterion still applies under the current regime, if there is no reading of it down as we suggest, then they are invalid to the extent they authorise the plaintiff’s present detention, as they contravene the principles described in 8 and 9 above where we have

KIEFEL CJ: Is this to do more than reopen AlKateb, seek leave to reopen AlKateb?

MR MERKEL: No, your Honour, because our primary position is that the statutory scheme has fundamentally changed and that the definitions of “immigration detention”, “detain” and “detainee” need to be considered in a changed statutory context so the

KIEFEL CJ: So you do not need to address AlKateb any more?

MR MERKEL: We do address AlKateb, but not based upon an intractable and unambiguous requirement of custodial detention that existed in AlKateb. There is no longer any such requirement because if your Honours go to

KIEFEL CJ: That is to distinguish AlKateb.

MR MERKEL: Yes. Well, it is to distinguish AlKateb, but to say that the question arising in the present case requires the Court to interpret the current statutory scheme, the Act as now enacted, informed by the principles in Al-Kateb. For example, your Honour, at 197A, which authorises a residence determination which is non-custodial and therefore not within the Lim principle, its residence in the community, that subdivision applies to a person who is required or permitted to be detained.

So at the point of authority to detain under 189, there is a choice created by Parliament under this scheme that a person may be taken into custodial or non-custodial detention. So the requirement in Al-Kateb which said there was mandated custodial detention, that that was mandatory and intractable, simply no longer exists under this statutory scheme.

KEANE J: Mr Merkel, looking at paragraphs 11, 12 and 13, all of them seem to involve acceptance of one or other of the inferences that you have been inviting us to draw. I understood that you were arguing that, quite independently of those inferences, you had a case of invalidity, but paragraphs 11, 12 and 13 all seem assume that we accept the inferences.

MR MERKEL: Your Honour, we would put it differently. We would say that in paragraph - your Honour is referring to our outline?

KEANE J: Yes.

MR MERKEL: We would say that if the construction in 11 is rejected - and that is the question - we rely in our submissions on the necessary - in section 3A of the Migration Act and section 15A and well–established principles - that if the operation of a statutory scheme has a valid constitutional operation but an invalid constitutional operation - that means there are two constructions open - the Court will choose a construction in favour of validity. That is why we say in paragraph 11 that 196(1)(a) should be read such that the mandate to keep an unlawful non-citizen in a form of immigration detention, consisting of custodial detention, suspends when his or her removal is not practicable.

GORDON J: That is the point. You have the reliance in 11, 12 and 13 upon this condition which is the subject of the inferences.

KIEFEL CJ: I think you need to be clear, Mr Merkel, about what your argument really is. Are you contending for a position which does not rely upon any of the four inferences you outlined at the commencement of the hearing?

MR MERKEL: We do, your Honour, but it is in the first sentence of paragraph 12, that is, that if there is no reading down then those sections are invalid for the reasons we have said they have to be read down, so that

GAGELER J: Mr Merkel, can I try to capture what I think might be this argument? You have the primary strand of your argument where you say because the position of the plaintiff falls within one of the four categories you identified, the provisions are invalid in their application to him. Then, you seem to have a secondary argument where you say, well, even if he does not fall within one of those four categories, somebody might, and the provisions would be invalid in their application to them and incapable of being read down in their application to the plaintiff. Is that the way you put it, or not?

MR MERKEL: We do, but subject to one qualification, your Honour. We say the assumption is that the sections are not read down and that an AlKateb reading, which is that they provide for indefinite detention until removed, is the operation of those sections terminable only on the unconstrained opinion of the Executive. If there is no reading down, we say those sections are invalid and that the plaintiff is entitled to challenge them because he is being held in custody pursuant to those sections.

EDELMAN J: That is effectively, as the Chief Justice put to you earlier, a submission that (a) the provisions cannot be read down and (b) all detention is therefore unlawful.

MR MERKEL: Yes, your Honour, but our primary position has been that they need to be read down.

EDELMAN J: Yes, this is your alternative position?

MR MERKEL: Yes, it is an alternative position.

GORDON J: That requires AlKateb to be reopened.

BELL J: It requires Lim to be reopened.

EDELMAN J: It does not appear in any of your submissions or your pleaded case.

MR MERKEL: Sorry, your Honour?

EDELMAN J: It is not a submission or part of your pleaded case.

KIEFEL CJ: It is a new argument, is it not, Mr Merkel?

MR MERKEL: Your Honour, we have said that we addressed validity in our primary submissions at paragraphs 56 to 65 an\d our reply submissions at 12 to 16. We do not believe we have not put this alternative

KIEFEL CJ: Where does the argument appear in the pleaded case?

MR MERKEL: Can I come back to your Honour on that? Can I come back to your Honour on that in a moment?

KIEFEL CJ: We cannot really take it further until you do, and we are not having another adjournment.

MR MERKEL: I had understood that it was always being put, your Honour, as part of our case to require a reading down for constitutional validity.

KIEFEL CJ: This is a special case which depends upon pleadings, Mr Merkel.

MR MERKEL: Would your Honour excuse me just for a moment? At paragraph 58, your Honour, at page 20 of the application book, we have said as an alternative case - we say that the section no longer authorised the detention.

KIEFEL CJ: I am sorry, paragraph 58 of the statement of claim?

MR MERKEL: Yes, your Honour.

EDELMAN J: That is not a pleading that the sections are invalid in their entirety. That is a pleading that they are invalid only to the extent that they apply to the plaintiff.

MR MERKEL: The only way they apply to the plaintiff, your Honour, is that they are maintaining his custody in the - detention in custody of the Commonwealth, and we say that that is the operation that gives him standing. But we say that those sections in the alternative, if they are not read down, result in them exceeding the legislative power of the Commonwealth, and therefore they must be read down.

KEANE J: But that is all in the premises of what is pleaded in paragraphs 50 to 57, which include the allegations about impracticability of removal and lack of any reasonable possibility of removal. These are all dependent - this allegation in 58, alternative as it is, is an alternative based on the pleaded premises, which are concerned with the inferences that you invite us to draw. But they do not stand independently of those inferences. You have not got a pleaded argument that stands independently of those inferences.

MR MERKEL: Your Honour, all I can say is that the paragraph 58 pleading is the foundation for what we set out in 56 to 65 of our primary submissions and 12 to 16 of our reply submissions; which have always been part of the case, to say that if they have the operation contended for by the Commonwealth they are invalid, and as a result they need to be read down.

KEANE J: But that is because the Commonwealth is talking about their operation in respect of the plaintiff in the factual circumstances of the case.

MR MERKEL: With respect, your Honour, the Commonwealth’s position is AlKateb authorises his indefinite detention and the criterion of “no reasonable prospect” is not sufficient to justify his release. This is the problem we have tried to address in our submissions, which is critical to an understanding – and we say, with respect, what Justice Bell put earlier is right; it is Lim that needs to be reopened, not AlKateb. There is a fundamental problem seen by Justice Hayne and Justice McHugh in AlKateb that the potential for a person to be held in detention for life resulted in the connection between the detention and the purpose of removal becoming so tenuous that it was, in all likelihood, unsustainable.

EDELMAN J: Assuming you are right about all of that, then as I understand your pleading in your submissions, the legislation is then invalid to that extent, to the extent that it encompasses those circumstances. But you still then need to show the inferences that would bring the plaintiff within those circumstances.

MR MERKEL: With respect not, your Honour, because there is a question of a person’s standing to challenge provisions for invalidity, and there is a separate question in this case - if the sections are read down, does the plaintiff satisfy the criteria in the read down sections? But logically, putting the principle of legality to one side, the starting point of that inquiry is what is the constitutional limitation?

We say in reliance of Lau v Calwell and Lim, there is no authority for the indefinite detention authorised in or said to be authorised in AlKateb. What we were going to say, that the indefinite detention authorised in AlKateb was specifically justified by Justice Hayne and Justice McHugh - that is three of the judges of the majority - by saying there was an independent and additional purpose of segregation from the community, which was not affected by the effluxion of time, and we have set out paragraphs where their Honours have made that point.

We say that on S4, that was never regarded as a separate – or a purpose of the Migration Act. Still less so can it be a purpose of the Migration Act with residential detention in the community. We say if it were found to be a purpose, it is beyond constitutional power for the Commonwealth to retain persons in custody, to segregate them merely because they are aliens, and that is a threshold point that their Honours used to justify indefinite detention.

Absent that, one is back into the Lim problem which is where Lim – the Court did not accept to remove as soon as reasonably practicable as a sufficient criterion. Their Honours said very specifically that there needed to be more and there was a time limitation in that case and that was not even sufficient. Their Honours went on to say ultimately what was sufficient was the person could ask to be removed themselves, and therefore their removal time depended on them.

At that time there was obviously an assumption that that would bring detention to an end. As we now know with stateless persons, and we now know with the plaintiff and the AlKateb type of category of person, that that assumption can no longer be made. So, absent the Court’s finding that there is a constitutionally authorised power to place persons in custody, custodial detention, because they are aliens or unlawful noncitizens, which Justice Gummow put very strong reasons in both Re Woolley and in AlKateb itself, there is no warrant for that step under the Constitution.

The reasoning of their Honours Justice Hayne, Justice McHugh, and Justice Heydon who agreed with Justice Hayne, fails at that hurdle and we are back into the Lim test, and we say that is squarely raised at two levels under the current regime.

GORDON J: But it is raised in the context of an individual. How do we deal with it at a hypothetical level?

MR MERKEL: Because there is nothing hypothetical about the plaintiff facing the risk of custodial detention by the Commonwealth in the discretion of the Minister for the rest of his life. That gives him standing.

GORDON J: But that is the question. You put four inferences to us. That statement is a statement which, absent the inferences, we are to accept, are we? This is the second limb of your argument. Your argument is if you fail on the four inferences there is some independent basis for invalidity?

MR MERKEL: Your Honour, the answer is yes but I need to put the inferences in context. The inferences only arise on our case if, by the principle of legality and the constitutional principle, the sections were read down to operate in a way which we contend for which is that there must be a real prospect of removal. We put it in four different ways. We say that ultimately the principle that reading down would bring about would then attract one or other, or all, of those factfindings to say that we either fall within or fall outside the reading down.

But if, as is contended for by the Commonwealth – and there should be absolutely no doubt about this – AlKateb is binding that means AlKateb authorises indefinite detention potentially for the rest of a person’s life – is the plaintiff entitled to challenge that? The answer is yes. He is in custody under these provisions and if not read down we say that he is entitled to have them declared invalid in their application to him.

We say that is raised in paragraph 58 and put forward in our submissions and raised fairly and squarely by the Commonwealth’s strongly put position that the legislative changes, upon which we rely are only minor qualifications on the power, contrary to the second reading speech which they regarded as very significant changes, and the change, in particular, to have this detention end in the discretion of the Minister on a public interest test which has no positive criteria, only negative criteria. I think we have put in our submissions a helpful discussion of Justice Hayne in M66. Your Honours will see at paragraph 4

GORDON J: Of your outline?

MR MERKEL: Of our outline, sorry, your Honour. What we have put there is the effect of sections 189, 196, and 198, read together with Subdivision B and 195A, is the requirement to keep an unlawful noncitizen in detention is wholly qualified by the Minister’s broad, noncompellable and, in practice, unreviewable power to choose noncustodial rather than custodial detention.

BELL J: Sorry, did you say this is paragraph 4 of your outline?

GORDON J: I think he meant paragraph 5.

KIEFEL CJ: It is paragraph 5.

MR MERKEL: Sorry, your Honour. Sorry, your Honour, the numbers changed in the copy I had. Can I take your Honours to what Justice Hayne said in M76 [2013] HCA 53; 251 CLR 322? It explains the nature and extent of that discretion. That is at tab 19. His Honour’s discussion of the public interest test is at page 357 in paragraph 87 and paragraph 93. It is page 1248 and 1249 of the book of authorities.

His Honour was talking there of section 46A(2). But the provisions of – and there are three provisions I wanted to put this under. There is 197AB, which is the grant of a residence determination; 197AD which is the revocation of a residence determination; and section 195A which grants an unlawful noncitizen in detention a visa, in effect, a bridging pending removal – a removal pending visa – which covers these categories of persons. All of them are subject to a public interest test and all of them are privative clause decisions under section 476 of the Act. So they fall squarely within what his Honour was discussing in respect of the power to grant a visa under section 46A(2). His Honour says at paragraph 87, second sentence:

The discretion thus given to the Minister is very wide –

He refers to Water Conservation Commission v Browning and says:

“though . . . neither arbitrary nor completely unlimited . . . is certainly undefined”. That is, “there is no positive indication of the considerations upon which it is intended that the grant or refusal of [the determination] shall depend”. Accordingly, as Dixon J pointed out in Swan Hill Corporation v Bradbury:

“only a negative definition of the grounds governing the discretion may be given. It may be possible to say this or that consideration is extraneous to the power, but it must always be impracticable in such cases to make more than the most general positive statement of the permissible limits within which the discretion is exercisable and is beyond legal control”.

Then, at paragraph 93, his Honour said:

As was said in the Offshore Processing Case, “[i]t is not readily to be supposed that a statutory power to detain a person permits continuation of that detention at the unconstrained discretion of the Executive”.

I think six Justices of this Court made a very strong statement to that effect in M96A:

But there would be detention at the unconstrained discretion of the Executive if the Commonwealth parties were right to submit that the Minister could decide, at any time, to refuse to conclude, or to stop, consideration of whether to lift the bar. If the Minister, having decided to consider whether to exercise the power to lift the bar, had no duty to conclude that consideration, the Act would authorise detention at the will of the Minister. That construction of the Act should not be adopted. Rather, having decided to determine whether or not to lift the bar, the Minister should be held to be bound to make that decision and to do so within a reasonable time.

Now, that is precisely the statutory regime that the plaintiff is confronted with and dictated by Parliament, not mandatory detention as in AlKateb under 189 and 196 with no opinion of the Executive intervening, which is again one of the points made by Justice Hayne in explaining why the mandatory regime was intractable in AlKateb and that was justified not just by the deportation aspect of the Migration Act but also his Honour’s separate and detailed analysis of segregation constituting an independent basis for that which has found no support in the authorities other than in AlKateb itself.

We say that when analysed under this regime that is precisely where the plaintiff stands. He stands in a position where at any time as from the moment he was liable to be taken in detention under section 189 that his custodial detention as opposed to his noncustodial detention lay wholly in the discretion of the Minister. If it was said, as my learned friends do, the legal effect is that custodial detention is mandated until a decision is made for a section 195A visa or a residence determination, strictly speaking that may be correct but the practical effect of these provisions is, in fact, a wholly discretionary custodial detention nonreviewable by the Minister and that is what this Court has firmly rejected as being authorised under the Constitution and under Chapter III.

GAGELER J: Is the effect of this submission that sections 189 and 196 are wholly invalid and inseverable?

MR MERKEL: In their operation under the Act at the moment that is correct because of the context which gives them this operation. What has happened, your Honour, if your Honour can go to the definitions in the Act, and this is why we say this is not a question of reopening AlKateb at all, not even distinguishing AlKateb, properly understood, we say the definitions have changed. If you go to the Act and look at the definition of “detain” in section 5, it means:

take into immigration detention –

and then under the note:

This definition extends to persons covered by residence determinations (see section 197AC) -

and “detainee” similarly extends to persons covered by that definition and section 13(1) makes these notes part of the Act. But critically, the definition of “immigration detention” has also changed. In section 5, “immigration detention” is defined in (a) and (b) as Lim custodial detention, that would satisfy the Lim principle of limits on power of custodial detention at page 31, but then in note 2:

This definition extends to persons covered by residence determinations (see section 197AC).

So when we go to section 189, those detentions operate directly in respect of unlawful noncitizens the subject of those sections because 189 draws in the definition of “must detain” and that means by either custodial detention, as set out in section 5, or noncustodial detention as would be provided for in a residence determination.

We make it clear that the Lim principle does not apply, in our submission, to a residence determination where a person is allowed to be free in the community, subject to conditions, but the whole operation of that scheme is to not have them is custodial detention. But the same operates in respect of 196. Again:

An unlawful noncitizen detained under section 189 must be kept in immigration detention -

So both definitions bite into 196: “detain” and “immigration detention” cover both the ministerial discretion residence determination and when that is not exercised the custodial detention mandated. We say that when you go to section 198, which is the third section in this scheme, where it says:

An officer must remove as soon as reasonably practicable an unlawful noncitizen -

your Honours will find throughout 198 one of the conditions of removal relates to a detainee. So it is obvious that the three sections read together apply for both forms of detention. Even if you look at 197A where it is an offence for a detainee to escape from immigration detention that does not apply to a residence determination because obviously you are no longer in detention and that is under 197AC(3).

So we say that that is the regime to which the plaintiff is subject and we use it as a readingdown argument, together with the principle of legality, but if the Commonwealth, which is opposed to this position, is correct and it cannot be read down or must not be read down, then it suffers the two vices we have put forward.

EDELMAN J: With the consequence that either the provisions are entirely invalid in their application to everyone, or just that the provisions are invalid to the extent of their application to those persons who are detained beyond the constitutional power?

MR MERKEL: “Beyond the constitutional power” means it would be invalid to those detained in custodial detention.

EDELMAN J: Yes. Your submission is the latter, not the former, though, is it?

MR MERKEL: Yes. It is only those who are in custodial detention, because there is no constitutional basis for allowing that detention to be effectively indefinite, or in ministerial discretion. Your Honours, I am conscious of your Honour the Chief Justice having said we each have an hour.

KIEFEL CJ: Yes.

MR MERKEL: I think I have probably spoken for an hour.

KIEFEL CJ: You actually have three minutes, Mr Merkel.

MR MERKEL: Thank you, your Honour. Can I just use those three minutes summarising what we want to say about Lau v Calwell and Lim; I will not take your Honours to the passages. The two decisions that preceded AlKateb and formed the basis for the constitutional holding in Lim that was acted upon in AlKateb and since in this Court were Lau v Calwell - I wanted to make a number of points about Lau v Calwell.

The requirement was to remove as soon as practicable, and six members of the Court made it clear that the power could not be used for any purpose other than deportation; it was a very important part of the decision of six members of the Court. Justice Dixon said at 581 – the pages where that is found is in Chief Justice Latham at 555 to 556 and I think the other judgment, which other members of the Court agreed to, was 586 to 587 - I think it was Justice Williams.

Justice Dixon at 581 imposed a temporal limitation on the power because removal had to be as soon as practicable. He said it had to be within a reasonable time. His Honour was the only one who said that, but can I invite your Honours to compare that with the Hardial Singh principles which have been adopted and applied in the Supreme Court time and again in the United Kingdom; which, being founded on a reasonable time and failure to remove within a reasonable time removes the legislative authority.

Building on that in Lim, it is absolutely clear from the decision that the terms which were found to be valid in AlKateb could not withstand the Lim analysis which made it very clear at pages 30 to 33 that the power of removal was not saved by a requirement of removal as soon as practicable. That was not sufficient.

It was also not saved by the 273day limitation on the time. It was – they did not go far enough. What their Honours said is that it was saved by the ability of the person to bring their custodial detention at an end by requesting their removal. So the point we derive from that is it is inconsistent with Lim to be able to say that indefinite detention could survive without any limitation because it had the purpose of removal.

So we do agree with your Honour Justice Bell. The constitutional holding in Lim needs to be overturned and that has been reaffirmed time and time again. It is only by using this segregation vehicle as an additional purpose that Justice Hayne, Justice McHugh and, agreeing with them, Justice Heydon, were able to overcome the effluxion of time point.

It comes out most clearly in Justice Hayne’s explanation in Re Woolley, if I can just finish by taking your Honours to that. Re Woolley 225 CLR and, your Honours, it is page 1509 of the book of the authorities at page 1 in the reports. But the relevant paragraph of his Honour’s – at paragraph 224, but particularly at paragraph 227, and can I just take your Honours at 227 at about point 5, the last three or four sentences, where his Honour said after saying “attention must then be focused upon the purpose of the detention” - his Honour was explaining his reasons in AlKateb:

Once it is accepted, as I do, that the aliens and immigration powers support a law directed to excluding a noncitizen from the Australian community (by segregating that person from the community) the effluxion of time, whether judged alone or in the light of the vulnerability of those who are detained, will not itself demonstrate that the purpose of detention has passed from exclusion by segregation to punishment.

Now, that is a freestanding basis which, with respect to their Honours, was an essential part of their reasoning that could justify indefinite detention for life in AlKateb. Their Honours found it could be a purpose of the Migration Act and found that it was. We say there is no – that is erroneous, with respect, but certainly not in the Act as it presently stands and we say for the reasons put forward by Justice Gummow in AlKateb and also in Re Woolley, that is a very big quantum leap in terms of empowering executive detention which finds no warrant in Lau v Calwell or in Lim and, indeed, is inconsistent with it and is also inconsistent with this Court’s decisions in S24 and the following cases.

So, we say for those reasons, your Honours, that the custodial detention of the plaintiff is not authorised and either by reading down to a level within which we fall or by, if there is no reading down as the Commonwealth contends, their broad operation on the basis of AlKateb, they are invalid. If the Court pleases.

KIEFEL CJ: I think Justice Gageler has a question for you.

GAGELER J: Mr Merkel, I am very sorry not to have followed this. You use the terminology of “custodial detention” and “noncustodial detention”. Can you just please tell me exactly what you mean by “noncustodial detention”?

MR MERKEL: “Noncustodial detention”, your Honour, is when a residence determination is made and the person is placed in the community, subject to conditions. We have referred to passages in the second reading speech and the explanatory statement that the intention is that they go into the community and they are not in custody of or restrained by an officer. So, they do not fall within the Lim definition of “detention”.

GAGELER J: It is Division 7, Subdivision B.

MR MERKEL: Yes.

GAGELER J: Thank you.

MR MERKEL: That is that aspect. There is also the section 95A aspect which shows people can be released into the community by a visa pending their deportation, which is part of the scheme. But that goes to the ministerial discretion.

GAGELER J: Wait a minute. I am sorry, I really just wanted a crisp answer to what “noncustodial detention” meant in your lexicon – that is all.

MR MERKEL: Yes, thank you, your Honour. I hope I have answered it.

GAGELER J: Thank you.

KIEFEL CJ: Yes, thank you. SolicitorGeneral for the Commonwealth.

MR DONAGHUE: Thank you, your Honour. Just on that point, a person who receives a visa under 195A is not in detention at all. So the only possible answer to your Honour Justice Gageler’s question is Division 7, Subdivision B. There is no other possible meaning of “noncustodial detention”.

Your Honours, can I start with the entirely new argument that our friends have developed today to the effect that they can succeed even if your Honours do not draw any of the four inferences that were identified at the start of the argument. Could your Honours turn, in the special case book, to page 20 which is the statement of claim – paragraphs 54, 57 and 58?

The pleading in paragraph 54 as to the legal and practical effect of section 189 and 196 is that in their purported operation upon the plaintiff in the circumstances pleaded herein it is to authorise and require the detention of the plaintiff for an indefinite period of time. That pleading is plainly linked to the operation to the plaintiff in the particular circumstances, rather than a general challenge to the validity of 189 and 196, which is then coupled with an argument against severance or reading down.

When one then gets to 57 and 58 upon which our friends particularly relied what you see there, in our submission, are the two aspects of the argument in AlKateb. Section 57 is an argument about construction – on their proper construction the sections do not authorise detention – and 58 is about constitutional operation if, as on the constructional argument, they do apply. So, that is just a conventional challenge raising the correctness of AlKateb and does not support anything like the argument that my friend just put to your Honours. So not only is the argument not pleaded, it is also, we submit, not tenable.

With respect, we submit your Honour Justice Gageler accurately captured the structure of the argument as we understood it, that is, even if the plaintiff does not get the benefit of the AlKateb inference, some other people might get the benefit of the inference. The Act is invalid, it is said, in its operation to them. Therefore, it is said, because it is invalid in relation to some people if it cannot be severed or read down then it is invalid in relation to everybody and because it is invalid in relation to everybody the plaintiff gets the benefit of that invalidity because the provisions cannot authorise his detention.

An aspect of that seems to be, if we understood it correctly as it was being developed by reference to 195A and 197AB, that because there was what was put as an unconstrained power on the Executive to release a person from detention that brought on a Chapter III problem in relation to 189 and 196. The difficulty with that is that your Honours will see, if you have 195A and 197AB to hand, that both of those powers are available only in relation to a person who is detained under 189. So, in 195A(1):

This section applies to a person who is in detention under section 189.

With 197 - it is actually 197AA:

This Subdivision applies to a person who is required or permitted by section 189 to be detained -

So, there is an exact congruence between the people who the Act requires to be detained and the people who can get the benefit of discretionary release by the Executive. So that if our friend be right that the capacity to release a person from detention is enough to create the Chapter III problem, then that capacity exists for everyone who is detained under section 189 or 196. The sections are wholly ineffective to authorise the detention of anyone, on that argument.

The difficulty with the argument, as I hope is clear from the way I summarised it, is it depends on the proposition that it is not possible to read down the operation of these provisions so that they would apply validly to everybody except people who get an AlKatebtype inference. That is an essential ingredient of the argument that the plaintiff can win even if he cannot get an inference of that kind and, far from having contended that no such reading down is possible, it is expressly part of our friend’s case in paragraphs 21 and 47 of their written submission that it is possible to read down the section in order to confine it so that it is invalid for people where that inference is drawn but valid for everyone else. It is a total reversal of that written submission for them to now contend that, even if they do not get the inference, the Act cannot be read down and so that they get the benefit of any invalidity that might otherwise arise. I am putting that quickly but I hope I have made that clear.

Finally, your Honours, on this point, the attempt by someone who falls outside the category that might attract invalidity to argue that because the Act might operate invalidly for someone else, it should be struck down in its entirety, is not novel. It was attempted in BMA v Commonwealth. It was attempted in Tajjour. Your Honour Justice Gageler in Tajjour looked at the argument in some detail and then in Knight v Victoria the point arose again.

The issue is not, as Mr Merkel puts it, one about standing. There is no question that the applicant has standing. The question is, should your Honours in a circumstance of this kind look at severance at the threshold and, if you are satisfied that the provision could be read down or severed so that it would validly operate with respect to the plaintiff, then decline to consider the argument as it might apply to people where different facts are raised.

I addressed your Honours at quite some length on this in Clubb a few months ago and I do not intend to repeat any of that. But, in our submission, for the reasons that the plaintiff accepted in writing, it is plain that 189 and 196 could, if necessary, be read down so that, even if AlKateb were to be overruled, the most that the Court should find is that the sections cannot validly authorise detention of people where the factual inference is drawn. If I am right in that submission, there is no alternative challenge that allows the plaintiff to succeed, even if he does not persuade your Honours to draw the factual influence.

EDELMAN J: Well, read down or severed.

MR DONAGHUE: Read down or severed, indeed. So, in our submission, your Honours can dispose of this new alternative argument, if you allow it to be run at all, by concluding that because the sections could be read down if that was necessary to do so, the inference not having been drawn, if your Honours reach that conclusion, the point is never reached.

Your Honours, turning then to the other part of – or the factual part of the case, can I say something brief about the four inferences that were identified this morning. I do not want to say anything about the first two; they are the two that were identified in our friend’s pleaded and written case. The third and the fourth inferences are entirely new.

They are so new that they did not make it even into our friend’s oral outline of argument, which indicates only the two inferences that were identified in the written submissions. As to the third suggested inference, my note of it was that the inference is that removal is no longer practically attainable. Assuming that the word “attainable” in that formulation carries its ordinary meaning, that inference makes no sense in the context of the Migration Act, because if removal is attainable it is required to occur by section 198 of the Act. That is, 198 imposes a duty to remove a person, where it is reasonably practicable to do so. So if removal has become attainable at any point, then it should happen.

The only circumstance in which there could ever be detention for the purposes of removal under our Act is where removal is not attainable and the detention is then authorised to continue, on our submission, until it becomes reasonably practicable, at which point it must occur. So, in our submission, that inference, derived as I think my friend indicated it was from overseas authority, makes no sense in the context of the Migration Act.

As to the fourth inference, as it was originally formulated it appeared to be wholly backward-looking, and your Honour has put that to my friend and I think he recanted or withdrew that, so withdrew the proposition that if removal has not occurred within a reasonable period, that somehow that means that the Act no longer authorises present detention. Once it is converted into a forward-looking formulation, it is difficult to see how it differs from the Al Kateb formulation, and no submission was put to your Honours that there was a meaningful difference between those two inferences.

GAGELER J: To be fair, Mr Merkel made it quite clear that the fourth position differed from the second really only by substituting the words “within a reasonable period” for “in the foreseeable future”.

MR DONAGHUE: Yes.

GAGELER J: So there is a difference.

MR DONAGHUE: But there was then no explanation of what follows from that difference in terms of why one inference might – and indeed, to an extent, your Honour, it seems to be divorced from the rationale for the limit, in that the dissenting justices in AlKateb explained the reasoning behind the formula - removal not being possible in the foreseeable future - in effect by saying that the purpose of removal was spent or lost if removal could not occur within that framework. So that was why their Honours said that 196 ceased.

That rationale does not apply, at least without some explanation, to a failure to remove within a reasonable period because it may be that removal has not occurred within a – or it depends, I suppose, how one assesses a reasonable period - but it may be that detention has continued for a considerable long period of time without that indicating anything about whether or not the purposes identified in 196 have ceased to be attainable.

So, my short submission is that our friends have framed this case as a challenge to AlKateb. Their very late reformulations of it should not be permitted but, if they are permitted, it has not been explained how they shift the argument from the argument that was examined in detail by the Court, both the majority and the minority, in AlKateb.

That is all I wanted to say about the inferences. In terms of whether or not on the facts your Honours should draw the inferences, I do want to take your Honours to some further facts. I will do it as quickly as I can. These submissions I am about to make correlate to paragraph 2 of the written outline that we have handed up.

The proposition, your Honours, is that your Honours should not draw either of the inferences, the first two inferences that or indeed the fourth inference - that Mr Merkel sought because on the facts, the Court cannot infer that it is not within the power of the plaintiff to provide further information, specifically including information that would facilitate his removal to Algeria, if he should choose to do so.

If the Court cannot draw that inference, in my submission, it cannot conclude that his removal is not possible within the foreseeable future, because it is within his control to provide further information that would affect the capacity to be removed. In support of that submission we point to a number of facts in the special case book, and I will take your Honours briefly to the main such facts.

The first is that – if I could start with the special case itself at 55 to 57 which is on page 55 of the special case book, you will see that not long after the plaintiff arrived in Australia, he decided that he wished to return to Norway. In paragraph 55 you will see that on 27 March his lawyer told the Department he wished to withdraw the first protection visa application that he had made and that he had requested removal. On the next day he told his case manager the same thing and then he made a written request to that effect the day after on 29 March. At the time when he had indicated that he wanted to leave Australia and be returned to Norway, one sees then at page 318 of the book, which is one of the annexures to an investigation report of the kind your Honours have already seen

KIEFEL CJ: The events that you are talking about are some two months after his arrival in Australia.

MR DONAGHUE: Yes, that is right. That first protection visa application was an application in which he made a claim that he was child soldier and that claim was then withdrawn, and when a subsequent protection visa application was lodged it was in quite different terms.

But at the time when he thought that he had asked to be returned, you see at the top of 318 that there was clearly a discussion about whether he could have the assistance of a Norwegian interpreter to assist him with the request for removal and it was not possible to find such an interpreter and he advised at the time that his preference was for an Algerian interpreter. So there was a very early link on the factual record between the plaintiff and Algeria.

Similarly, when we then got to the next protection visa application, which was lodged in June 2010, that application indicated that the applicant had lived in Tindouf in Algeria as a child. You see that, your Honours, if you start at 108 in the special case book, which is the commencement of the protection visa application that was lodged in June. At 111 in the book you see question 32:

Details of countries of former habitual residence or transit before arrival in Australia –

and the entry is:

Please see attached.

You see the attached actually a few pages earlier in the book at 105 where there is a document with the heading in the top lefthand corner, just under the top line, “Questions 32, 33 and 34”, and there is a list of countries. In the second row of that table you see “Western Sahara/Algeria”; date of departure “Around 1998”; “I did not have any ID”. Then there is a reference to “Tindof, Algeria” there. “Leaving in 1998” means depending on which of the various dates of birth your Honours accept. If it was 1989, then he was around nine years old. That is one of the regular dates; some of the dates are 1992. So on any view of it, that line is suggesting a period of early life in Algeria.

Third: your Honours have already heard mention of the fact that before the interview with the Moroccan Embassy there was a phone call made to the Moroccan Embassy. That is mentioned in paragraph 23 of the special case, but there is more detail available at page 327 of the book, which again, I think your Honours have seen. I rely on the large entry in the middle of page 327, but one sees from about point 6 on the page the reference to the phone call and he gave a name:

spoke fluent Algerian Arabic as well as Algerian Berber . . . stated that he left Algeria with his uncle as a small child and lived all around Europe before coming to Australia.

It was put to him:

who claimed it was not him

but it is noted that:

the story sounds very similar -

You see over the page, a couple of pages on 331, at about point 3 on the page, that about six months later or a little longer on 11 January 2003, the third bullet point down, in an interview with the client the plaintiff admitted that he made the phone call on the day before he was interviewed and he admitted he gave the same first name but he denied giving a surname. Again, of his own volition, there was a phone call to the Moroccan Embassy asserting Algerian and speaking fluent Algerian and Algerian Berber.

One then has the interview with the Moroccan Embassy the next day – that is mentioned at paragraph 75 of the special case book but the most useful account is at page 494 of the book, in paragraph 15. The Moroccan Embassy officials who interviewed the plaintiff spoke Algerian Berber, Algerian and Moroccan Arabic, as well as a number of other languages, and they used all of them, except English, in the interview at various points:

and reported that the Client spoke fluent and not childlike dialect of Algerian Berber and did not speak Hassaniya -

which as indicated elsewhere is one of the main languages spoken in Western Sahara. There is reference then to the phone call the day before and it is reported the plaintiff:

denied having made the call and abruptly left the interview room, refusing to cooperate any further.

So he walked out on the Moroccans when confronted with the phone call. They:

confirmed that the client was not a Moroccan national nor was he from Western Sahara. They considered it likely he was an Algerian Berber from the –

identified region of northern Algeria. Then there is a reference in the next paragraph, which I will take out of order, to the Algerian Embassy interview about a month later where he refused to speak Arabic. One sees in relation to that interview, the Algerian interview, if your Honours could jump back to 328 in the book which is a more detailed account of the discussion with the Algerian official, that what is reported there – and I am reading from about halfway through the entry in the middle of the page – it said:

at this stage I do not believe there is adequate evidence available for him –

That is the Algerian official:

to recognise –

the plaintiff:

as an Algerian national . . . mentioned on the way home that he would at a minimum need to know [the plaintiff’s] true date of birth and the names of his parents in order to follow up with the authorities . . . did not provide these details during our interview -

So the position that the Algerians took at the time was not that he is not Algerian – it is that we need more information in order to be able to make an assessment of that position.

My friend mentioned that there was an audio recording given to the Algerians and that is true. It is referred to at the bottom of page 329, in the last row on 329. It is apparent from what you see there that what was made available was an extract from an interview which contained the – I think it is correct to say – only recorded example of the plaintiff speaking Arabic. It was quite short. It was, by my calculation, 13 minutes and 40 seconds in length. So what is being suggested as a substitute for the interviews that the – or the refusal to speak in Arabic – was a very confined recording of the plaintiff speaking Arabic.

The next fact was the 2014 interview with the plaintiff that I already took your Honours through this morning including the account of the parents still being alive, the brothers being alive, him being in Skype contact with the brothers and him being adamant that resettlement in Algeria or Morocco was not an acceptable outcome to him.

The next fact was mentioned by Mr Merkel which concerns the fatherinlaw and this is at 496 of the book and we do not overemphasise this fact because it is quite right, as Mr Merkel said, and is recorded in paragraph 22 that there are credibility concerns in relation to the fatherinlaw and we accept that to be so. But, nevertheless, bearing those concerns in mind what is recorded there is that a year after the plaintiff gave an account about family being in Algeria and alive and contact with the brothers and matters of that kind, the fatherinlaw gave quite a similar version of events.

Now, I accept one has to be careful with what one does with that but it is part of the factual matrix. There is also, as Justice Gordon mentioned, a further reference to a person I accept to be the same person over at page 504 of the book in paragraphs 43 and 44. Again, it is recorded that clearly the fatherinlaw, it is said, does not have a high opinion of the plaintiff. So, again, one has to take it with appropriate care but there is again an account of believing the client was from Algeria, left Algeria at a later age between 13 and 14 and reports what the client had told him about his family’s activities including the brothers’ smuggling activities.

I will not take your Honours back to it but again there is a marked correlation between that claim about the brother moving around a lot between countries and what was said in the interview in 2014. So as part of the picture there is further information consistent with what was said by the plaintiff himself.

Next, in terms of the conclusions that the Department has reached looking at all of the inconsistent stories that have been given over the years by the plaintiff, your Honours at 487 in the book will see that this is the most recent identity investigation report and your Honours will note in the key findings box in 487 at point 4:

Forensic Language analysis indicates that the Client speaks Arabic with a Moroccan or Algerian dialect.

Our friends are inviting you to treat this as if he is definitely Moroccan not Algerian. That is not the way the Department sees it. At point 5:

The Client is most likely a citizen of Algeria.

6. Each of the Client’s claimed identities are assessed as Not Supported.

The reasoning process in support of that is set out throughout but your Honours will see particularly at paragraph 35 and following:

The best assessment of the Client’s nationality appears to be that provided by the Moroccan Embassy -

officials, for the reasons there explained. At 36:

The Client has been uncooperative in efforts to confirm if he is an Algerian national –

At 39:

has been remarkably inconsistent in details of his claims –

and the assessment near the end of that paragraph:

but likely he is concealing details as his memory is extremely strong in some aspects and extremely weak when it comes to areas that are more pertinent to confirming his identity.

Finally, there is the fact, subject to quite some debate, that even now immediately pending a hearing in this Court until this morning the plaintiff refused with no evident explanation to engage in conversations with the Moroccan or Algerian embassies, that being a position that we submit is difficult to comprehend unless there was a concern as to the outcome of that – a concern that we submit should be assessed, taking account of the client’s adamant position, at least in 2014, that he would not countenance being returned to Algeria.

The fact that there are various verifiable facts that link the plaintiff to Norway, in our submission, takes the case nowhere because there is no question that at some point he was in Norway, that he lived for a number of years in Norway, and that he travelled to Australia from there. There is just no dispute about that.

The question is about what happened before then. One does see at page 498 of the book – sorry, your Honours, I think that is the wrong reference – yes, 498, your Honours, paragraph 28, the Department’s assessment that the Norwegian authorities did not examine the client too closely as he was considered a minor. So the Department’s investigation of the Norway link - so yes, there is material linking him to Norway, but we are not particularly persuaded that Norway looked closely before it reached the conclusions that it reached concerning his identity.

For all of those reasons, in our submission it is not possible to – your Honours should not infer that it is outside the control of the plaintiff to give more information that could lead to his removal should he choose to do so, particularly in light of the fact that there is no evidence before the Court that the plaintiff claims not to be able to remember, and there is no evidence of any medical reason why he would be unable to do so.

That being the case, your Honours should not find that any of the factual inferences sought as the premise for the Al-Kateb challenge have been established. Relatedly but separately, in relation to the factual findings, we also draw your Honours’ attention to the special case at page 59 of the book, paragraphs 77 and 78 where the defendants, except that they have not yet been able to identify a country willing to accept the plaintiff as a national, indicate an intention to keep the case under review with a view to approaching countries of which the plaintiff might become a national, as appropriate, depending on whether further information can be obtained from any other source, including, we submit, the plaintiff himself.

Then quite separately from the question of a right of entry or a national, it is indicated that the defendants are also attempting to identify third countries that might be prepared to consider the plaintiff. There is then detail of that provided in paragraph 78 and the supplementary special case, and it is true that those efforts have not yet succeeded. But the special case records the defendant’s attempts to continue in that regard.

I emphasise that, because there was a very similar fact in the special case in Plaintiff M76, and it was a fact that was accorded some significance in the joint reasons of Justices Crennan, Bell and Gageler. If your Honours have Plaintiff M76 [2013] HCA 53; (2013) 251 CLR 322 - it is in volume 3, tab 19 of the joint book of authorities. In the joint reasons that I just mentioned, if your Honours turn to page 371 of the report, paragraph 147, you will note that in the special case in that matter the Minister had made what the plurality described as a qualified concession that it would be open to the Court to draw the inference, that is, the Al-Kateb inference.

Justices Crennan, Bell and Gageler declined to draw the inference, notwithstanding that concession, in circumstances where the special case can contain no agreement between the parties to that effect, as of course is the case here. There were two reasons given in the balance of paragraph 147 for adopting that position. One was the existence of close relatives in India and another country which had an established practice of offering resettlement places, and that the plaintiff had been invited to approach those countries seeking resettlement.

Just pausing there, there was nothing further in the special case to indicate any particular likelihood of success of those avenues. It was just that the avenues existed as avenues that had not yet been fully run to ground. But beyond that there was nothing, hence the Minister’s position that it would be open to the Court to draw the inference. In addition to mentioning those possibilities, paragraph 147 continues:

The special case also discloses that the Department intends to keep her case under review with a view to approaching resettlement countries should there be a change in circumstances that would make such an approach appropriate, the possible change in circumstances including “a change in the [p]laintiff’s personal circumstances, or –

and I emphasise these words:

further information being obtained regarding the [p]laintiff’s relatives in resettlement countries”. . . . The options for her removal have not yet been exhausted.

In our submission, the fact, in addition to all the facts I have identified in relation to Algeria, the fact that the special case records, similarly to in Plaintiff M76, the fact that the Department intends to keep the case under review and to approach other possible third countries as and when appropriate makes this case, in our submission, quite analogous with the circumstances that caused three members of the Court in M76 to conclude that the Al-Kateb issue was not breached.

Briefly, your Honours, as to the first inference that the plaintiff sought - this is the inference that it will be impossible to remove the plaintiff during the course of his natural life, or words to that effect - in addition to all of the reasons that I have already given, in our submission that suggested inference collides with the reasoning of Justice Hayne, with whom Justice Heydon agreed in Al-Kateb, and also that of Justices McHugh and Callinan, but it is sufficient for me to take your Honours to Justice Hayne.

Al-Kateb [2004] HCA 37; (2004) 219 CLR 562 is behind tab 7 in volume 1. If your Honours go in that report to page 639, paragraph 227 and following, where Justice Hayne is grappling with the position of a stateless person, which of course was Mr AlKateb’s position. The reasoning there was, in paragraph 27, about six or seven lines down, his Honour said:

whether the non-citizen is stateless or has a nationality, Robtelmes v Brenan reveals that the removal provisions of the Act are concerned with what was there identified as the corollary to, or complement of, the power of exclusion.

That, we submit, is still true. The focus is on giving effect to the decision to deny admission, to exclude, there being no question that the Executive has that power with respect to noncitizens. Then at 228:

In the case of a stateless person, there may be many countries which could properly be approached and asked to receive the person. Whether one of those countries agrees to take the person will ordinarily depend upon matters beyond the power of Australia.

So, their Honours are contemplating the situation where you cannot identify a country where the person has a right to enter because the person is stateless, but that the capacity to approach other countries, who may or may not accept the person, is significant. Then at 229:

What follows is that the most that could ever be said in a particular case where it is not now, and has not been, reasonably practicable to effect removal, is that there is now no country –

to which the noncitizen can be removed:

and it cannot now be predicted when that will happen.

That is not to say it will never happen, and we respectfully adopt that reasoning as an additional basis upon which your Honours should refuse the first of the inferences that were identified. I was not, I confess, quite certain how it fitted into the argument that really was mostly focused on the factual inference and on the alternative argument that the plaintiff could succeed even if the factual inference was not drawn. But weaved into that was part of an argument for distinguishing AlKateb, and for the sake of completeness I might just briefly address that if I may.

KIEFEL CJ: This is on the new statutory framework?

MR DONAGHUE: This is on the new statutory framework, yes, in the 2005 amendments. Your Honours have at tab 5 in the joint book the 2005 amending Act, if I could ask you to go to that. It is the Migration Amendment (Detention Arrangements) Act. The first thing to note about that Act is that in schedule – the first thing to note about the Act is that the amendments made by the Act commenced on 29 June 2005 which you see from section 2 of the Act, which is less than a year after AlKateb was decided. So these were amendments made quite proximately to the decision of this Court in that case.

The second point to note is that in Schedule 1 in items 2, 3 and 5 one sees added into the Act notes to some of the key definitions - “detain”, “detainee”, “immigration detention” -but one does not see - and in item 9 you have a note to 189 as well - one does not see any amendment to the substantive text of any of those definitions and one sees no amendment to the substantive text of 189, 196 or 198. So, the actual text of the provisions that were determinative of the result in AlKateb were unamended.

But what did happen, there were some new powers added. One sees in item 10 the addition of 195A. I have already mentioned to your Honours that that is a power only available to a person who is in detention under 189, and the same being true of the residence determination. One perhaps peculiar consequence of that is that if AlKateb were to be wrong so that there are a category of persons who are not authorised to be detained under 189, these new powers are not available with respect to a person in that situation. You cannot give them a visa under 195A.

You cannot make a residence determination in relation to them because instead of being the subject of the ameliorating regime, they have a right to be released from detention because the Act does not reach them. So, that might be thought a surprising consequence and it suggests, in our submission, as I will develop in a moment, an assumption underlying these provisions that the Act means what a majority of the Court said that it means in AlKateb.

Your Honours will note in 195(3) that this a power where the Minister is said not to be bound by Subdivision AA, AC or AF of Division 3. What that means, in practical terms, is that there does not need to be an application for a visa and that the criteria for the visa do not need to be satisfied by the person to whom the visa is being granted. So, this is a power that the Minister has to grant the person a visa irrespective of whether or not the criteria for that visa are satisfied. It is also in subsection (4) a power:

The Minister does not have a duty to consider whether to exercise –

But there are provisions in the Act that say if the Minister exercises the power – subsection (6) - there has to be a statement laid before Parliament in relation to it. In all of those features of the power, the provisions of 195A mirror section 417 of the Migration Act and section 351 of the Migration Act in the forms that they took at the time AlKateb was decided, the difference being that those two powers are powers that can exercised only after there has been failed merits review, whereas 195A does not have that limit. But in all other respects – noncompellable, not bound by the visa criteria requirement to report to the Parliament – their regime is the same.

That might be thought significant because in AlKateb – and I will not take your Honours to it but the reference is page 563 – Mr AlKateb had applied for a merits review before the RRT and had failed. So on the facts of his case, 417 was available to be exercised, a point Justice Heydon pointed out in the first M47 Case, and no member of the Court majority or minority regarded it as significant that that power was there.

I also note, without taking your Honours to it, that at the time AlKateb was decided there was the power in section 33(2)(b) of the Act, which is a very wide power for the Minister to grant what I call special purpose visas, effectively again without application and without there being any criteria that needed to be satisfied.

So the capacity for the Executive to bring an end to detention at any point by the grant of a visa is in no way a new development arising from the 2005 Act. It has been there all along. It was certainly there at the time that AlKateb was decided and it is not something that one gets out of this regime out of 195A as a basis for distinguishing the case.

Residence determinations are dealt with in item 11. They did not have an equivalent in the Act at the time that AlKateb was decided. Again, it is a wide power, where the Minister thinks it is in the public interest to do so, to grant a residence determination, and where that is done the effect is specified in 197AC. The effect is that a person who complies with the determination by residing at the identified place is treated as if the person were being kept in immigration detention.

So the significance of that, which comes back to your Honour Justice Gageler’s question to my learned friend Mr Merkel at the end, is this. Following the commencement of that definition, it is perhaps possible to draw a distinction between detention for Chapter III purposes and detention for statutory purposes. A person who is immigration detention by reason of the deeming under 197AC clearly is not detained in custody in a way that engages the Lim principle and so such a person, in our submission, could not bring a constitutional challenge.

But what this section does not do is break the binary regime that has existed since the Migration Reform Act between unlawful and lawful noncitizens, unlawful noncitizens being required to be kept in immigration detention as the Act defines, and lawful noncitizens not being required to be so detained. What it does is it creates another way that one can fall within the statutory concept of immigration detention, but it remains the case, as it was at the time AlKateb was decided and has been since, that an unlawful noncitizen must be in what the Act calls immigration detention. I will develop the significance of that in just a moment. But before I do, can I note 197AE. Again, this is a provision the Minister does not have a duty to consider exercising. Again, there must be tabling of material in Parliament.

Finally, and, in my submission, significantly, if your Honours go to page 12 of the Act you see the insertion of a new Part 8Cinto the Act, “Reports on person in detention for more than two years”. Section 486L gives effect to that two years requirement and then 486M creates successive rolling periods of six months from the point where two years in detention is reached. The obligation is then found in 486N and 486O. The Secretary has to give the Commonwealth Ombudsman a report at the twoyear mark and every six months thereafter. Then the Ombudsman has to give the Minister an assessment of the arrangements – this is 486O(1):

to give Minister an assessment of the appropriateness of –

the arrangements for the person’s detention and that, in subsection (3)(b), can include recommendations for another form of detention, including for example a residence determination. Subsection (4) says the Minister is not bound to act on the recommendation. But subsection (5) says the assessment has to include a statement in a form that can be tabled in the Parliament, and the tabling obligation is then imposed by 486P.

All of that, your Honours, leads to this submission, that the amendments made by this Act as a package are not consistent with the idea that the Act as a matter of construction reserves for the courts as an exercise of judicial power rather than for the Minister as an exercise of administrative power the question of how to deal with the difficult case of a longterm detainee.

To the contrary, in our submission, they affirm that the difficult case is to be dealt with by mandatory detention under the same provisions of the Act as were considered in AlKateb subject to the ability of the Executive in a noncompellable way based on a ministerial judgment of public interest to alleviate the effect of that regime but then subjecting the Minister to an additional oversight regime in the form of the Ombudsman to look at the cases of longterm detention to make recommendations to the Minister about that and to subject the Minister to parliamentary scrutiny as to the way in which those powers are or are not exercised, that being precisely equivalent to what your Honours called in Plaintiff S10 - and that is not in the book, your Honours, but I will give you the reference - it is [2012] HCA 31; (2012) 246 CLR 636 at paragraph 55 where four members of the Court described the set of these noncompellable ministerial powers including 195A with the reporting obligations to the Parliament as a particular manifestation of aspects of responsible government.

So, in our submission, the proposition that these amendments are a foundation for saying that unlike the position in AlKateb it is now to be – longterm detention is now to be approached by an exercise of judicial power to release people from that detention as opposed to from the particular mechanisms there created should not be accepted.

The other point – I am conscious of the time – is that the proposition, if we understand it correctly, is that as a matter of statutory construction the conferral of a new way to release people from immigration detention should be understood as amending provisions of the Act that were not touched by those amendments so as to create a capacity for release from detention quite different from that found in the new power itself. I put that badly.

The power that one sees in 197AB of the Act is a power to be exercised by the Minister. Our friend’s suggestion is that conferral of that power leads to a capacity for release by the Court. The Minister’s power is expressly discretionary. The Court’s power to release would not be discretionary. It would be mandatory because if detention is found to be unlawful then the Court must release.

The criteria to be exercised by the Minister are a public interest judgment. The criteria to be considered by the Court are not related to the public interest at all. It is concerned with an assessment of the prospects of the removal of the unlawful noncitizen in the foreseeable future.

That means that while the Minister might have particular reasons for not exercising the new power based on a public interest judgment, the Court would not be entitled to consider those reasons at all in the regime that is being created. All of that, your Honours, is to say that it is difficult, using any legitimate technique of statutory construction, to say that Parliament, by giving a set of powers of a particular kind to the Minister, impliedly amended the Act so that in addition to those new powers given to the Minister there are now limits of a different kind to apply in different circumstances to enforce by different people that may lead to release as a matter of construction because – I emphasise, your Honours, all of this distinguishing argument is unconnected to the constitutional proposition.

It is put that as a matter of parliamentary intention in making these 2005 amendments there was a new out of immigration detention created by the Act and that in our submission holds. There are many other things I could say, but in the circumstances, we

KIEFEL CJ: Mr Solicitor, if you are correct that the argument put today, which is said not to be dependent upon drawing any inferences as to the prospect of removal, is neither pleaded and therefore not available or not tenable and that the inferences which the plaintiff does seek to draw in support of the special case questions, and if Al-Kateb cannot be distinguished, what course do you say the Court should take?

MR DONAGHUE: Your Honour, it should answer the questions set out on page 62 of the book. Those questions are directed to the present circumstances of the plaintiff, so that on the hypothesis your Honour just put to me, if the inferences are not drawn, then on their proper construction 189 and 196 do authorise the present detention of the plaintiff. Again, if the inferences are not drawn, in our submission, there is no basis to say that those provisions are beyond the legislative power of the Commonwealth.

KIEFEL CJ: Or is it more correct to say they do not arise, if the inferences are not available?

MR DONAGHUE: Your Honour, in my submission, question (1) does arise; because the Commonwealth is presently detaining the plaintiff.

EDELMAN J: It does not arise if your Knight submission and Tajjour submission is correct, does it?

MR DONAGHUE: If my Knight and Tajjour submission is correct, then it would follow that there is no basis to challenge the entirety of those provisions in all of their operations. But question (1) is concerned with whether the section authorises the present detention of the plaintiff.

EDELMAN J: No, sorry, if your Knight submission is correct, that if the inferences cannot be made out, therefore there need not be consideration of the constitutional operation of the provisions because either they do not apply to the plaintiff to the extent of any invalidity, or they are not invalid, in which case they would apply to the plaintiff, so therefore both of those questions would be unnecessary to answer.

MR DONAGHUE: Your Honour, I accept most of what your Honour just put to me, but if the inferences are not drawn and if I am right in what I said about Knight and Tajjour then the two bases upon which it is said that the sections are invalid in relation to the plaintiff are not reached. But we do need to know, in our submission, whether the sections validly apply because the special case puts in issue both, as a matter of construction and validity, whether these sections authorise the detention of the plaintiff. The only basis upon which we rely to support the detention of the plaintiff is these sections. So, if they do not apply as a matter of construction or if they are invalid, that is a problem for the Commonwealth and, in my submission, both of those things are raised.

To answer the questions is not to say – or to foreclose the possibility that on different facts different answers might be given. But the plaintiff has put in issue before this Court the validity of the provisions. He has only done that, in my submission, on the case we came to meet, if your Honours draw the factual assumption. So, if your Honours do not draw the factual assumption, then a necessary premise of his attack on constitutional validity

KIEFEL CJ: Quite so.

MR DONAGHUE: is not reached.

BELL J: But accepting the premise for the constitutional challenge not being reached, why would we answer the question?

KEANE J: On the basis that the question does not arise, that is to say, there is no question – there is no basis for a question as to sections 189 and 196 authorising.

MR DONAGHUE: There is no basis to say that it is beyond the legislative power of the Commonwealth to say that they apply to the plaintiff but we submit that means the answer to that question is yes. There is no reason to say that they do not validly apply and so your Honours would answer the question in some ways we – sorry, your Honour.

GORDON J: It is a question about whether or not the factual premise for the assertion is made out.

MR DONAGHUE: That is so but if it is not made out then the plaintiff’s argument fails rather than the question not

GORDON J: Then that is the question, does it fail or is it something with which we do not engage?

MR DONAGHUE: Taking it in sequence, your Honours

GORDON J: There is a reason why the questions were sent to the parties.

MR DONAGHUE: Yes, but if your Honours answer question (1) – question (1), we submit, is reached because it is not reached – let me start that again. Question (1) is reached because the provisions - in our submission the provisions mean what they say and they do, therefore, authorise the present detention of the plaintiffs. The argument that they do not mean what they say depends on a factual premise that on this hypothesis will not have been made out but that does not provide a reason to doubt the application of the sections. It just means that the plaintiff’s argument is to say that the sections do not apply to him.

KIEFEL CJ: In accordance with your written submissions the correctness of AlKateb does not arise. That is really what the special case is all about and that is what need not be addressed.

MR DONAGHUE: Your Honours, that is true and that is why both in writing and orally we have started with the question do you draw the inferences. Perhaps there should have been a question in the special case do we reach any of the questions that follow but that would have required the questions

KEANE J: Or would an appropriate answer to question (1) be, on the facts in the special case no question arises as to whether.

MR DONAGHUE: Your Honour, I would prefer on the facts of the special case the foundation for the plaintiff’s challenge is not established or something – I am not sure that that is materially different, but it would – I understand where your Honour is coming from but, in our submission, it would be desirable to capture that your Honour’s answer to the question is not casting any doubt on the application of those sections to the plaintiff if -
and one could similarly say on the plaintiff’s case, the challenge to those provisions is the constitutional challenge is not reached or something to that effect.

KIEFEL CJ: Yes, thank you, Mr Solicitor.

MR DONAGHUE: Of course, your Honour, we seek our costs in the special

KIEFEL CJ: Thank you. Yes, Mr Merkel, anything in reply?

MR MERKEL: Yes, your Honours. Could I just deal with the last matter first? When you say it would be appropriate to approach the questions on the basis that your Honour Justice Keane put, namely, that if on the facts your Honours find that the inference does not arise then it is appropriate not to venture into the authorisation questions because it is inappropriate in this case to do so, we would say that is appropriate. It would take another case to have to work out what the post AlKateb regime was. So we would, with respect, support that as a way of resolving the present case.

Can I briefly go over one or two points my learned friend said about the current statutory regime. He referred to the 2005 amending Act. Can I just give your Honours references which are inconsistent with what he had put.

GAGELER J: I do not want to overcomplicate things, Mr Merkel, but does the way you propose answering the questions, which is dependent upon one of those four factual bases being established, mean that you no longer put your alternative argument?

MR MERKEL: Would your Honour excuse me just a moment? Your Honour, the position we would put is that we would, if the Court is prepared to answer the questions just on the facts, that the facts have not reached the inferences that we had put on a reading down then we would not seek to take that constitutional question any further. If the Court gets into the question of construing the sections then we would put the whole of our case, including the invalidity sections – the invalidity of the sections – if the sections are not read down but we would be content with Justice Keane’s approach to the first question, leaving the operation of the scheme for another day.

GAGELER J: I want to be really clear about this. If you do not establish (1), (2), (3) or (4) then the answers to questions (1) and (2) are adverse to your position. Is that right?

MR MERKEL: Your Honour, we would say that if we do not get answers to questions (1), (2), (3) and (4), the appropriate way to deal with question (1) is to say that because the facts of this case are not determinative of our rights that the question in (1) and (2) does not arise. If the questions in (1) and (2) arise, then we put our constitutional validity argument, which was always a necessary side of the interpretation argument. If it is said we have not put it we would ask for leave to put it because it was a necessary consequence of the interpretation argument to be in accordance with section 15A or 3A.

BELL J: But that leave is only sought in the event that the factual premises, either (1), (2), (3) or (4), are established. To the extent they are not, you do not press the constitutional challenge?

MR MERKEL: Yes. That is so, your Honour.

BELL J: Yes.

MR MERKEL: That is on the basis that Justice Keane approached to the answer to the first question, is to take it

GORDON J: That is that the foundation of the plaintiff’s challenge is either not established or not reached.

MR MERKEL: Yes, your Honour, that we think it is appropriate for another day to get into the interpretation question if the facts are not reached. Can I just briefly note, your Honours, that the approach my learned friend has taken to the 2005 amending Act not making substantive changes is quite inconsistent with the second reading speech in the explanatory memorandum. I will just give your Honour references.

The second reading speech is at tab 31 and at page 1747 at lines 15 to 20, and 1748 of the book of authorities at lines 25 to 30, and also at 1749, lines 20 to 23 make it clear that these amending Acts were meant to change the fundamental structure of mandatory detention into immigration detention which would include residential detention.

The same appears from the explanatory memorandum which is at tab 31 and can I draw your Honours attention to paragraphs 4 to 7 which explain the community detention, and also paragraph 17 which makes it clear that the purpose of the note is to clarify that section 189 is not an exhaustive statement of the powers relating to how a person is required to be detained, and also paragraphs 21 and 22. So we say there is no basis for saying that these changes are only minor.

In respect of his point that the 195A is no more than a repeat of section 417, we say that totally divorces the context of the 2005 amending Act which was to create fundamental changes to the migration law as a result of AlKateb and to ensure flexibility into the system that AlKateb did not have. We say that there is nothing ironic whatsoever about this Court, as my learned friend would otherwise have it, finding that if the detention is unlawful, somehow that is inconsistent with the Minister’s executive power to exercise alleviating provision – alleviating detention in the public interest. If it is unlawful, then this Court intervenes and should intervene. If it is not the Court would not intervene.

My learned friend relied upon Plaintiff M76 – M76 is a good contrast to what is before you – M76, at paragraph 147, refers to objective facts. Here, the basis for saying there is a real prospect of sending the plaintiff to Algeria is not an objective fact, that is, it is the plaintiff’s previous inconsistent versions of his past and we say that it is important for this Court on analysing the facts to distinguish between mere possibilities, which are not enough, and what you can properly infer from the facts.

Ultimately, the real question is, is the Court satisfied that the plaintiff is withholding information that is independently verifiable about his birth and his parents’ identity and we say that threshold is not reached based upon an objective analysis of the facts because there is that gap and there is no proper basis for the finding that my learned friend seeks.

NETTLE J: You put the burden of proof on the Commonwealth.

MR MERKEL: We say the Privy Council in Tan does put the burden of proof on the detaining authority to show it is lawful, but we say this ultimately is – and we do rely on that onus as stated by the Privy Council in Tan – but we also say that ultimately the facts have been presented before your Honours and they are bereft of any facts that come under the independently identifiable facts that show that the plaintiff is withholding the information of the kind that my learned friend says will be able to identify a country willing to take him because he is a citizen, or his parents are a citizen, of that country.

There is a limit to how much inference can be drawn on inconsistent stories and the credibility issues. My learned friend took your Honours to certain versions which, if true, would suggest he had parents in Algeria. Other versions which, if true, would say he does not. We say that the whole credibility issue is why we are into independent verifiable facts.

When you actually ask the question what are the independent, verifiable facts that will show he is concealing them there are not any and, therefore, we say there is no basis for the finding that he invites and we say
it is a necessary finding objectively to be made not based on suspicions of the Department but based on the entirety of the evidence before the Court. They are the submissions that we would put in reply, if your Honours please.

KIEFEL CJ: Thank you, Mr Merkel. The Court will adjourn to consider the course that it will take.

AT 4.33 PM SHORT ADJOURNMENT

UPON RESUMING AT 4.41 PM:

KIEFEL CJ: The Court is unanimously of the view that the special case raises no factual basis for the consideration of questions (1) and (2) of the special case. The questions raised for the opinion of the Full Court are therefore answered as follows:

(1) On their proper construction, do ss 189 and 196 of the Act authorise the present detention of the plaintiff?

Answer: Does not arise.

(2) If so, are those provisions beyond the legislative power of the Commonwealth insofar as they apply to the plaintiff?

Answer: Does not arise.

(3) What relief, if any, should issue to the plaintiff?

Answer: None.

(4) Who should pay the costs of and incidental to this special case?

Answer: The plaintiff.

The Court will publish reasons at a later date.

The Court adjourns to 9.45 am tomorrow.

AT 4.42 PM THE MATTER WAS CONCLUDED