Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Moorcroft [2020] HCATrans 166 (16 October 2020)

Last Updated: 16 October 2020

[2020] HCATrans 166

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B17 of 2020

B e t w e e n -

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Applicant

and

DEANNA LYNLEY MOORCROFT

Respondent

Application for special leave to appeal

BELL J
GAGELER J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 16 OCTOBER 2020, AT 9.31 AM

Copyright in the High Court of Australia
MR C.L. LENEHAN, SC: May it please the Court, I appear with MR N.M. WOOD for the applicant. (instructed by Australian Government Solicitor)

MR S.J. KEIM, SC: May it please the Court, I appear with my learned juniors, MS K.E. SLACK and MR B.D. KAPLAN, for the respondent. (instructed by Sentry Law)

BELL J: Thank you. Mr Lenehan, the issue in the application is crisp and clearly identified in the written submissions. I think we might be assisted by hearing from Mr Keim first.

MR LENEHAN: Thank you, your Honour.

BELL J: Yes, Mr Keim.

MR KEIM: Thank you, your Honour. Special leave should not be granted for the reasons set forth in our response. In very brief terms they are: the proposed appeal is attended by insufficient prospects of success, the decision of the Federal Court is in accord with principle. Second, the proposed appeal is not a suitable vehicle for the proposed appeal points, questions of the comity of nations which might arise in construing the phrase, “removed or deported from another country”, do not arise and cannot be properly considered in this case. The proposed appeal is not of sufficient interest. The supposed tension with Hicks v the Minister is of no significance and the administrative inconvenience said to arise from the Federal Court’s construction is of no significance. Our submissions will not ‑ ‑ ‑

BELL J: Mr Keim ‑ ‑ ‑

MR KEIM: Yes, your Honour.

BELL J: Mr Keim, in relation to your suggestion that questions concerning removal from another country are not raised by the application, it is pointed out by the applicant that before the Federal Court your client expressly accepted that there was a compelling reason why the words “removed or deported from another country” should not be read as being subject to the lawfulness of the removal or deportation from another country. So that was the stance taken below, as I understand it.

MR KEIM: Yes, your Honour. Can I clarify what we say is the position?

BELL J: Yes.

MR KEIM: It was that in accord with her Honour’s construction of the paragraph that “removed or deported” have the meaning removed or deported as understood, in pursuant to, in accord with the provisions of the Migration Act. So, one starts with the meaning of “removal”, as defined by the definition of “removal” in the Act and interpreted in terms of the provisions in section 198 and that Division of the Act.

When one comes to applying the language in the second half of the paragraph, that is the starting point, but the difficulty in construing, but more particularly applying those provisions, is that one does not have, not only the facts of the particular case, but one is attempting to apply those provisions to a whole variety of different legal systems.

So for example, it may be the case, sort of like the Indian Code and the Queensland Code, that the legislation is very similar and in those circumstances there would be no difficulty in applying the second phrase to the provisions in another country, but in other circumstances the legal system may be completely different and the acts which are said in the particular case to be removal, may be completely unlawful, they may not be supported by any proper legal provision at all.

So, it is in that variety of cases that application of the phrase in the second half of the paragraph will need to be undertaken. The starting point is the meaning in the Migration Act, but the way in which that is to be applied, and consequently an incremental determination of the construction of the terms as applied to the legal systems of other countries, is something that can only be conceded and can only be properly determined in the circumstances of a particular case, and we do not have those circumstances here.

BELL J: I am not sure I understand, Mr Keim, but is it within that submission that the words “removed or deported from Australia” might bear a different construction to the words “removed or deported from another country”, in your submission?

MR KEIM: Yes, your Honour, that may be the case, but that question can only be determined by incremental processes, taking into account the circumstances of the other country’s legal system and the actions which are said to constitute removal in those circumstances.

BELL J: Yes. Anything further, Mr Keim?

MR KEIM: I was going to go on, yes, your Honour. Our submissions will not fit neatly into those four points, but the points which we would seek to cover are broadly these. The applicant’s contention that “removal and deportation” have their ordinary meaning, as opposed to their statutory meaning is wrong.

The supposed tension between Hicks v the Minister is of no significance, construing statutory terms so as to exclude invalid decisions of government officials is not inappropriate, but statutory context is always important. Extrinsic material for the Migration Reform Act indicates that only unlawful non‑citizens are removed from Australia, and the same extrinsic material emphasises the intention or use of “removal and deportation” as terms with specific statutory meanings.

I can talk about not the ordinary meaning of the word. The applicant is wrong in arguing that “removed from Australia” carries its ordinary meaning as opposed to the meaning of “removed” pursuant to the provisions of the Migration Act. This is consistent with construing the section by reference to its text and its context. It follows that the Federal Court was correct in ‑ ‑ ‑

BELL J: Mr Keim, we are not hearing an appeal, we are dealing with an application for special leave to appeal and the real issues are why the leave should not be granted in circumstances where, as I understand it, on your own account, the construction for which you contend would involve the very same phrase bearing different meanings in the same subparagraph of the provision. Now, that may be right, but there is a crisp point of construction, and the Minister has provided, one might think, cogent reasons for why the decision below is arguably attended by error. Why would we not grant special leave in the circumstances?

MR KEIM: Can we say two things, your Honour, with regard to that. The first of them is that this is not a proper vehicle for the reasons that I articulated with regard to your Honour’s earlier question. Secondly, that question does not call into question the construction which the Federal Court has applied in the matter.

So it becomes academic to say they are the same or they are different. The real question before this Court is, is it the ordinary meaning or is it the meaning given to it by the definition of “removee” and by sections such as 198, and sections such as the object of the Act in section 4, which talks about removing from Australia someone who is not entitled to stay here. Now, that is in circumstances where our learned friends have conceded that our client, the respondent, was not an unlawful citizen at the time.

BELL J: There is no issue as to that, Mr Keim.

MR KEIM: No, your Honour. No, your Honour, but we say that that circumstance allows the meaning of the word “removal” to be given as being removal in accordance with the provisions of the Migration Act without any attendant doubt, in our submission.

BELL J: Yes.

MR KEIM: I do not think I can take your Honour’s questions any further in that regard.

BELL J: Thank you, Mr Keim. Just one matter, Mr Lenehan. At paragraph 4 of your submissions I think the Minister undertakes to pay the reasonable costs of the respondent on the application for special leave and the appeal and would not seek to disturb the costs orders made in favour of the respondent below, as a condition of the grant of leave.

MR LENEHAN: Yes, he does, your Honour. That remains the position.

BELL J: Yes. Noting that undertaking and that the Minister would not seek to have his costs of the appeal, were he to succeed, there will be a grant of special leave in this matter. What is the estimate, Mr Lenehan?

MR LENEHAN: Your Honours, I think it is in the order of half a day.

BELL J: Yes.

MR LENEHAN: I have not spoken to Mr Keim about that.

BELL J: Mr Keim, half a day seem reasonable?

MR KEIM: Half a day always seems reasonable, your Honour, but often turns out to be not the true situation. We would probably suggest that a full day should be allowed.

BELL J: Very well, yes. I might just indicate to both of you that the directions relating to the filing of the submissions in the book have been slightly modified to take account of the Christmas break. Those who instruct you can obtain a copy of the directions from the Registry, and I do encourage both of you to comply with them. Thank you.

The Court will now adjourn until 10.30 am.

AT 9.43 AM THE MATTER WAS CONCLUDED