BBE15 v Federal Circuit Court of Australia & Anor [2021] HCATrans 149 (10 September 2021)

Last Updated: 16 September 2021

[2021] HCATrans 149

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S15 of 2021

B e t w e e n -

BBE15

Applicant

and

FEDERAL CIRCUIT COURT OF AUSTRALIA

First Respondent

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES, AND MULTICULTURAL AFFAIRS

Second Respondent

Application for special leave to appeal

KIEFEL CJ
GLEESON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA BY VIDEO CONNECTION TO BRISBANE AND SYDNEY

ON FRIDAY, 10 SEPTEMBER 2021, AT 2.00 PM

Copyright in the High Court of Australia

MR J.F. GORMLY appears for the applicant. (instructed by Sydney West Legal and Migration)

MR P.M. KNOWLES appears for the second respondent. (instructed by Sparke Helmore)

KIEFEL CJ: There is a submitting appearance for the first respondent. Yes, Mr Gormly.

MR GORMLY: This is a case where it is submitted that there should be a grant of special leave because of the general importance of the issue. That issue is whether an unqualified prohibition of the kind found in section 91X of the Migration Act is not justiciable, even to the determination.....declaration of a breach of the prohibition merely because the statute did not provide in its terms consequences for non‑compliance such that the prohibition can be characterised as one of imperfect obligation.

The issue is of general importance because it concerns all similar imperfect obligations, obviously a wide category. Just in this case, in its application to section 91X, the issue concerns the names of tens of thousands of failed asylum seekers over the 20 years of the operation of section 91X, which was intended to protect these people. The protection is as long as the court intends to hold documents which contain their names, so, certainly over the lifetime of each individual asylum seeker and possibly over the lifetime of individual – of governments in the countries from which they have sought protection.

Now, section 91X, as Justice Kenny observed in AVN20 and as adopted by both the primary court and the Full Court - observed that there are two purposes to section 91X. The first is protective. The second, she said, possibly to prevent the raising of a sur place claim for protection for those asylum seekers who are still in Australia. But, by far the greatest category is for those failed asylum seekers who have been returned to their countries.

The issue arose in this case from the discovery of the applicant’s name on a publicly‑accessible database kept by the Federal Circuit Court, that is the Commonwealth Courts Portal, by which the applicant could be identified as the bearer of the court pseudonym given to him, in this case BBE15. Now, the evidence of the presence of the applicant’s name and how it was discovered is not disputed, only that the circumstances did not give rise to a breach because there was no publication.

KIEFEL CJ: Mr Gormly, do you require an extension of time?

MR GORMLY: Yes, I do. I understand my friend consents to that.

KIEFEL CJ: Is that unopposed, Mr Knowles?

MR KNOWLES: Yes, I do not oppose it, your Honour.

KIEFEL CJ: Yes. Very well, we will go on and we will consider the extension with the merits. Mr Gormly, while you are interrupted, what is the legal basis for the remedy of declaration in this case?

MR GORMLY: The determination of the legal controversy of whether or not there has been a breach of 91X. As to the foreseeable consequences ‑ ‑ ‑

KIEFEL CJ: That is conceded, is it not?

MR GORMLY: No, not breach. It was not determined by either the primary court or the Full Court.

KIEFEL CJ: The declaration then does not concern any rights of the applicant, but the fact of a breach?

MR GORMLY: Yes, that is – well, no, sorry, the declaration is in respect of the ‑ ‑ ‑

KIEFEL CJ: The purpose of the declaration is to assist the applicant to persuade the Minister to intervene. Is that the purpose of the declaration?

MR GORMLY: That was the main purpose. In the light of events subsequent to the court’s decision to hear oral argument, the Minister attempted to remove the applicant back to the country of nationality. He had a seat booked for him on a charter plane. So, I think reality tells the applicant that even if the Department, following its guidelines and having regard to the declaration, were to refer it to the Minister, the applicant cannot hold out a great hope that the Minister would make the required decision under 48B.

However, that puts the applicant now in a situation of a person whose return is well nigh inevitable, so the protection he seeks now is as a person in his own country of nationality. The Federal Circuit Court, the first respondent, like the Federal Court, holds a volume of material about the applicant’s claims for protection. The key to these claims is the identification of the applicant as the bearer of the court pseudonym. That unlocks to anybody who is interested the claims that he has made for protection from that country.

So, the foreseeable consequence now is more in the administration by the Federal Circuit Court of its obligations under section 91X. As I said, the declaration will require a determination of whether or not there has been a breach and will ensure compliance by that court according to the direction. That is what the court has submitted – has agreed to submit to an order from the court and, as I said, the names of the applicant and the tens of thousands of others are going to be held by the ‑ ‑ ‑

KIEFEL CJ: Mr Gormly, I take it that this matter has – in relation to breach, it has proceeded upon the basis that it was not necessary to determine that question because – I think that is the approach Justice Griffiths took. Is that right?

MR GORMLY: That is right, because his Honour found that – well, really misunderstood what Justice Kenny had said in – and taking the unenforceability of imperfect obligations to extend to the granting of declarations. The answer to that is that a declaration is not executory. For many imperfect obligations there are consequences to the breach.....identifying ‑ ‑ ‑

KIEFEL CJ: What is the utility of the order, though, given what you have said earlier? What would be the utility of the declaration?

MR GORMLY: It is going to provide guidance, apparently sought by the Federal Circuit Court, on what amounts to a breach of 91X. In this case it seems – that is not much of an issue in a sense rather because the breach has been quite clear. So, determination was never.....by either court, but nevertheless we are in the position of no judicial decision on what amounts to a breach or whether this amounted to a breach.

GLEESON J: I had thought that the Federal Circuit Court had taken down some information when it was identified to them that there had been a breach. Am I wrong?

MR GORMLY: That is correct, and the Full Court observed that and said, yes, there is no ongoing breach. But it remains that the Federal Circuit Court will stay in possession of the applicant’s documents and his name for as long as the court cares to remember its own proceedings. So, yes, no ongoing breach, but this is looking to the future and the way that the Federal Circuit Court keeps its documents.

As to the imperfect obligation which, as I said, the finding of both the Full Court and the primary judge was based on a misunderstanding of what Justice Kenny had said in AVN20. Her Honour there was concerned with a claim that a breach of section 91X invalidated a tribunal decision and a court decision in review of that tribunal decision.

That is not the case here. I have said what the purpose of the declaration is. The applicant never claimed that the 91X imperfect obligation, a breach of which would – the applicant had never claimed that a breach of that imperfect obligation in 91X would result in the invalidity of the court’s decision.

In this case we have a section that provides for an unqualified prohibition. It is addressed to particular courts and its obligations are specified and are ascertainable. It is not in that range of imperfect obligation which begins with those political obligations which Justice Burchett identified in Yarmirr. So, it is at the other end of the spectrum of imperfect obligations.

These imperfect obligations may be said to be not enforceable and in a public law context that would mean, and we agree, that the remedies of mandamus, prohibition or injunction would not be available. But it should be said that, particularly where there are legal consequences to a breach of the obligation, that the remedy of declaration should be available. This does not disturb the characterisation of imperfect obligations as not being enforceable by courts because declarations are not executory. Those are the submissions that I wish to make.

KIEFEL CJ: Yes, thank you, Mr Gormly. The Court will adjourn to consider the course that it will take.

AT 2.15 PM SHORT ADJOURNMENT

UPON RESUMING AT 2.18 PM:

KIEFEL CJ: In our opinion the decision below is not attended by any doubt. The decision is clearly correct. Special leave is refused with costs.

The Court will now adjourn.

AT 2.19 PM THE MATTER WAS CONCLUDED