Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs & Anor v Montgomery [2022] HCATrans 29 (15 March 2022)

Last Updated: 16 March 2022

[2022] HCATrans 029

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S192 of 2021

B e t w e e n -

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Appellant

MINISTER FOR HOME AFFAIRS

Second Appellant

and

SHAYNE PAUL MONTGOMERY

Respondent

KEANE J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 15 MARCH 2022, AT 10.29 AM

Copyright in the High Court of Australia
HIS HONOUR: In accordance with the Court’s protocol when sitting remotely, the record will show that I am sitting in Canberra and I will announce the appearances for the parties.

MR S.P. DONAGHUE, QC, Solicitor‑General of the Commonwealth of Australia appears with MS Z.C. HEGER, for the appellants. (instructed by Australian Government Solicitor)

MR J.T. GLEESON, SC appears with MR P.G. WILLIS, SC, MR M.L.L. ALBERT and MS E.R. TADROS, for Mr Montgomery. (instructed by Russell Kennedy Lawyers)

HIS HONOUR: Mr Gleeson, before you commence, I have had the opportunity to read, and have read, Mr Montgomery’s application of 17 December, the affidavit of Artie Chetty filed on 17 December 2021, Mr Montgomery’s submissions on the stay application filed on 11 February 2022, the affidavit of Artie Chetty filed on that date, the Minister’s submissions in response filed on 25 February 2022 and the affidavit of Tigiilagi Eteuati filed on 25 February 2022, Mr Montgomery’s submissions in reply filed on 7 March 2022 and the affidavit of Artie Chetty, also filed on 7 March 2022.

Yes, Mr Gleeson. Mr Gleeson, I think you are muted.

MR GLEESON: As always, I was being too polite, your Honour. Your Honour, with the benefit of that could I go straight to our submissions and ask your Honour to go to the appellants’ submissions on the stay application at paragraph 5 in order to crystallise the issue that is before your Honour.

HIS HONOUR: Just a moment. Yes.

MR GLEESON: So, the essence of the opposition – there is more that the appellants say about it, but the essence of it is that Mr Montgomery has the benefit of a mere possibility that an administrative decision might change at a future date, whereas the removed appeal concerns the correctness of the existing rights and legal duties declared by Justice Derrington.

What I would like to do at the outset is to submit, by reference to the 15 November orders, that that is an incomplete and inaccurate characterisation of the issue before your Honour today. If your Honour has – I hope your Honour has the cause removed book in the main appeal ‑ ‑ ‑

HIS HONOUR: I do.

MR GLEESON: Yes. So, the orders in question are found at page 56.

HIS HONOUR: Yes.

MR GLEESON: The removed appeal concerns the correctness of orders 3, 4 and 5, but what we would emphasise in terms of characterising the issue is that Mr Montgomery has the benefit of orders 7, 8 and 9. He is not simply a person who says there is a possibility my position might improve under a future administrative decision. He is a person who says under orders of the court the decision that was made adversely to me May of 2020 – that is 18 months ago at the date of the orders – was affected by legal error. It is a decision that has been quashed and he is entitled to have that matter reconsidered in accordance with law. So, in terms of ‑ ‑ ‑

HIS HONOUR: Does it matter what the legal error was?

MR GLEESON: Only in this sense, your Honour. The legal error is found in the reasons at paragraph 156 to 159, which is on pages 54 to 55, and the essence of the legal error was that the Minister, as seen at paragraph 158:

failed to give any degree of consideration to [his] representations as to his Aboriginality.

So, this is on the judicial review side of the case, not the habeas side of the case, so it is simply about Love and the tripartite test. The argument, or the submission, Mr Montgomery had been putting you will see at paragraph 144 – this is the submission of the Minister – that in circumstances where not only does he say he is an indigenous Australian, but the mothers of two of his children are indigenous Australians and therefore some of his children are, there would be a devastating effect on his family if he were severed from the community.

Now, that is the matter the Minister has been found not to have considered, and there is no appeal from orders 7 to 9. The result of that is that as a matter of legal right, not merely possibility or discretion, Mr Montgomery has an entitlement to have his application for revocation of – for cancellation of the revocation decision, reconsidered in accordance with law.

So, when your Honour asked does it matter what the error is, my answer was possibly, only in the sense that that being the nature of the error, namely, the relevance of his aboriginality to a proper exercise of administrative discretion, it tends to confirm that there is a logical.....about that question being considered before this Court reaches – if it ever has to reach – the questions about Love and Thoms.

That is because what the Minister will be required to do, as a matter of good administrative decision‑making, is give proper consideration to that question of aboriginality, as I say, in the broader sense, not just in the tripartite sense, as to what effect that would have upon revocation of cancellation of a visa, and if Mr Montgomery is successful in that process then this Court will never reach the correctness of orders 3 to 5.

So, once one appreciates that what is back before the Minister is there by reason of legal right and legal duty, not merely a wish and a hope, and in effect the Minister is being required by the Court to make the lawful decision that should have been made in May 2020, 18 months ago, one can see in terms of the logical priority of the resolution of the issues that that issue has a claim – at least a claim – to be allowed to reach its conclusion before the Court reaches, if it has to, the questions about Love and Thoms.

Your Honour, that was the first matter I wanted to make by way of submission. The second matter was it is well established in the authorities that the Minister must make the new decision with reasonable promptitude. Indeed, the authorities your Honour will be familiar with from the Full Federal Court suggest that where there is a reconsideration decision it can be made immediately, it does not have to engage a whole new process of procedural fairness, but what does have to happen is that it has to take into account everything that is before the Minister up to the date the decision is made. An authority to that effect is Carrascalao v Minister [2017] FCAFC 107; 252 FCR 352.

Now, what that means is that, pursuant to Justice Derrington’s orders, the law required the Minister on and from 19 November to reconsider the matter with reasonable promptitude. Ms Chetty’s second affidavit, which your Honour has seen, that is the March affidavit, confirms an unsatisfactory aspect of the matter. On the appellants’ side, if your Honour has that affidavit of 7 March ‑ ‑ ‑

HIS HONOUR: Yes, I do.

MR GLEESON: ‑ ‑ ‑ at paragraphs 4, 5, 6 and 7, what emerges is that, on 19 November, Mr Montgomery’s solicitor had given the Department information via electronic delivery, most of which was not new, it was the material from the Federal Court proceedings, but, for reasons unexplained, the Department made no attempt to even download the material until 15 February 2022.

That there was no attempt to download the material is also confirmed by Mr Eteuati’s affidavit of 25 February, where he deals with the same topic, particularly at paragraph 3.8, confirming it was 15 February that the Department first asked for help downloading the material.

Now, what that indicates is, for reasons unexplained, for a period of three months, apparently, no attempt was made by the Minister or the Department to carry out the task required by orders 7, 8 and 9. An issue which we submit is relevant to your Honours is whether one party, who controls the timing and the resolution of a process, an administrative process, ought to be permitted to control which of the two processes is to be privileged. We would submit not, where that party is the Minister.

Your Honour, the third submission I would make is in that paragraph 5 in the Commonwealth’s submissions they describe Mr Montgomery’s claim as a mere possibility of doing better in the administrative process. Of course, it is not for your Honour to make any assessment of the strength of that claim before the Minister, but the material before your Honour at least allows the Court to say it is a claim made bona fide, it is reasonably arguable, and it is a claim of prima facie probative value.

So what we would submit, in terms of Mr Montgomery’s claims before the Court for this stay is that, in summary, he has an existing right to have an administrative decision‑making process that was not concluded according to law 18 months ago redone in accordance with law as soon as practicable, and in effect to have that error addressed, being an error which possibly was causative of his deprivation of liberty during that period.

Now, your Honour, my next submission is what is on the other side of the record, as in the claims of the appellants to have the Court reconsider Love and Thoms. I am not sure if your Honour has the benefit of our written submissions on the main appeal, which were filed in early March?

HIS HONOUR: No, I do not. I have not looked at any of the submissions on the main appeal.

MR GLEESON: All right. Well, your Honour, I can just do this by way of submission without requiring your Honour to look at the material. In the main appeal, the current status of the submissions is the appellants’ submissions are filed, our submissions are filed, the interveners’ are filed, and the reply from the appellants is due in about a week or so’s time. So that is the status of the matter.

In our written submissions we have identified that there will be five issues which arise on the main appeal if and when it proceeds. The first issue is one of power, which is whether an appeal against habeas corpus is competent, and whether section 24 of the Federal Court Act sufficiently evinces an intention to derogate from the common law rule of no appeal against habeas corpus. Mr Willis raised that matter briefly before you in December last year. We have developed that argument in some detail, and we are awaiting to hear the appellants’ response to it.

The second issue will be one of discretion, whether leave to appeal should be granted. The third issue is about the scope of any appeal, and the contention we will be raising, if the Court reaches an appeal, is that the correctness of Justice Derrington’s habeas orders must be assessed at 15 November 2021 in the light of the matters before her Honour then.

Your Honour will appreciate, having had the pleasant task of managing this matter and the previous, now discontinued matter, that the constitutional issues were removed from the now discontinued matter into this Court and then were never reached because of Justice Derrington’s orders. In effect, the Commonwealth says those issues can be now dealt with in an appeal against habeas.

Justice Derrington quite correctly never reached the correctness of Love and Thoms, that was obviously not before her, but she also never reached the application of Love and Thoms finally to Mr Montgomery, and that was because the only question before her was whether the Minister discharged the onus of showing the reasonable suspicion that he was not an Aboriginal Australian. So, it was the result of a level of reasonable suspicion without the court, that is Justice Derrington, making any findings on his aboriginality within the tripartite test.

The third plank of our response to the proposed appeal will be the only question is whether her Honour correctly dealt with the habeas issues such that the Love issues and its application to Mr Montgomery are never reached. The fourth issue down will be, did her Honour err in her reasons or having regard to the notice of contention and that is, in effect, an ordinary Federal Court appeal, with respect, about whether habeas was properly granted on the material before her Honour. Had that been the only issue, the matter would not have attracted this Court’s attention.

If and only if those four stages are crossed successfully by the appellants, as we would perceive the issues, they get to Love, and at the stage of Love there are in turn a series of sub‑issues that would be before the Court if and when this appeal ever has to be reached. The first issue is whether leave is required to reopen Love v The Commonwealth.

Now, the appellants there put what we would call a bold submission that Love contains no ratio and that what Justice Bell recorded in paragraph 81, which is that she was authorised by the other majority Justices to state the commonality of their reasoning is not a ratio, and that the answer recorded to the question in the Commonwealth Law Reports is not a ratio.

Now, we can have that argument. We think it is a very – well, we have called it a disrespectful argument, and I do not resile from that. So that will be the first question, do the appellants need leave? Second question is, should leave be refused, and your Honour appreciates what issues that will raise. The third question will be, if leave is granted, was Love correctly decided? The fourth question will be, if Love was correctly decided, should the Court refuse to permit the appellants to argue its application to Montgomery?

I put it that way because, for the reason I mentioned, the Court has no facts, no findings of fact, about Mr Montgomery’s cultural adoption and so on, and your Honour in fact raised that question on 2 December of Mr Donaghue, which is - the appellants are removing as of right, but will the Court have the facts and the findings of fact about the application of Love if it is correct to Mr Montgomery, and you were assured that you did not need to worry about that because it was a pure legal point.

It is somewhat troubling that, as the submissions have now been filed in the main case, the Commonwealth says you, the Court, can decide the outer limits of the tripartite test if it is good law upon the basis of genes, as in the g‑e‑n‑e‑s genes, that the Court can safely conclude that a DNA test or some other measure of genes will tell you who is a biological indigenous Australian and who is not.

Now, that large proposition, of course, was never surveyed before Justice Derrington. There are no findings on it. There are no agreed facts. We have indicated, and some of the interveners have indicated, that there are real questions whether it is actually correct as a matter of science or law, or whether the Court could take judicial notice of it. So I only raise that to say that will be the second‑last aspect of the Love question on the main appeal, which is, can the Court ever get to how it applies to Mr Montgomery, and then, if the Commonwealth gets over that hurdle, the final question is should cultural adoption, if it be established, be recognised as sufficient to attract the Love principle.

Now, your Honour, I apologise for the length I have gone through those issues in the main appeal, but now that we have had the chance to argue them out on both sides, or most of them, one can see that the constitutional issues may never be reached. If they are reached, they are issues of considerable difficulty and complexity. The questions of whether to reopen a recent decision are obviously profound, very large institutional interests are at play, and all that would tend to suggest that, although this is not a straightforward case, it is a case where the prudential principle of “do not decide the constitutional points until you need to” does come into play.

Now, your Honour, in our written submissions you might have observed we referred to what the Court said in Mineralogy recently about not reaching constitutional questions unless it is strictly necessary to do so. All that territory is too familiar to warrant repetition save that in paragraph 60 of Mineralogy the plurality observed that:

the necessity of answering the question of law –

It is the end of paragraph 60, your Honour:

to the judicial resolution of the controversy may not sufficiently appear where there remains a prospect that the controversy can be judicially determined on another basis.

Now, of course, the precise issue the Court had in mind is what can be seen from paragraph 66, that there were other judicial proceedings where the issues might first be determined. In the present case, the other proceedings are administrative proceedings, but proceedings being carried out pursuant to court orders requiring the Minister to do that which should have been done 18 months ago. So when the Court puts together the interests of justice on both sides of the record, we would submit Mr Montgomery has a significant claim to say orders 7 to 9 should be allowed to do their work.

On the other side of the record there is no significant harm to the Commonwealth in allowing its attempts to reopen Love and Thoms if that is what it wishes to do, to be done at a time when it is truly necessary, and also just in the way I have sketched it this morning, there are very real doubts whether this case is ever going to be the vehicle, the right vehicle, the best vehicle, to decide the Love and Thoms issues anyway, because of all the reasons why the Court may in the end find it simply does not have the material to do so.

Your Honours, I have focused on the interests of the parties across the record. We did also respectfully submit, at least when we filed the application back in December, that there is an institutional interest of the Court, that its resources and the resources, indirectly, of the parties, would not be devoted to matters unless they were really necessary. Now, it may be said against us that time has marched on and we have all spent our own resources trying to comply with the Court’s orders, and to that extent, that factor is not as great as it was, but ‑ ‑ ‑

HIS HONOUR: Mr Gleeson, I am right in my recollection, am I, that this application was not foreshadowed on 29 November when the directions were made?

MR GLEESON: Your Honour is correct in that. Your Honour recalls the context where the removal came on with very little notice to the respondents, and those on my side did their best to work out what types of points they might want to raise, and they indicated a number of the points I have raised this morning. Then your Honour set that date of 17 December for the objection to competency, notice of contention and so on, so by that date, that is, within a relatively short period, it had been identified that this was an additional ground.

I think it is also right to say, your Honour, that before it was actually filed appropriate steps were taken with the Commonwealth to see if they would agree to a stay – I will just see if that can be turned up in Ms Chetty’s affidavits. I cannot immediately locate that, your Honour. In any event, by 17 December it had been notified and filed.

So what I sought to put was simply in terms of the conservation of resources. As we sit here today we do not know when this decision will be made by the Minister. We do say, with some force, it ought to have been made before now, and had they bothered to read our submissions it most probably would have been made by now. Only those instructing the learned Solicitor know when it will be made.

It is possible it could be made before a date in the April hearing, in which event that hearing, we would say, would be rendered moot. It is possible it could be made while the Court is reserved. We submit, when all those matters – they are not within the control of your Honour, but they are within the control of Mr Donaghue’s clients, if the Court would simply approach the question by saying, we will permit the process under orders 7 to 9 to do their work.

Your Honour, I think the final submissions I want to make on the stay application can be reduced to these. If your Honour could go back to the appellants’ submissions, there is one false point we need to clear away, which is paragraph 13. There is a submission in paragraph 13 ‑ ‑ ‑

HIS HONOUR: Just a moment. Yes.

MR GLEESON: There is a submission in the middle of paragraph 13 that another reason why the appeal must proceed immediately is there is:

some doubt –

whether Mr Montgomery:

can validly hold a visa –

as a non‑alien:

(and therefore whether section 501CA(4) has any valid application to him).

That is, whether the revocation of the cancellation is even possible in law. We would ask your Honour to put that issue completely to one side, first of all it is clearly wrong. The persons who can hold a visa, as the Court has indicated many times, subject to Love and Thoms, are those who are non‑citizens. Under the binary division, you are a citizen or non‑citizen. If you are a non‑citizen you are either lawful or unlawful, and whether you are lawful or unlawful depends on whether you hold a visa.

So there is no doubt that a visa is something that can issue to a person who was a non‑citizen, there is no issue about whether you are a non‑alien. Secondly, the matter that is referred to in that paragraph is not advanced as a proposition by the Commonwealth and is not advanced by us in the written submissions in the case. It is clearly wrong. No one advances it and it would not be a basis to refuse our stay that this false doubt has been created.

Your Honour, the second‑last matter is, if your Honour goes over in these same submissions to paragraph 22, footnote 19, the appellants say there has been no singling out of Mr Montgomery. It is just he is the first suitable vehicle for the Love point, and the previous cases were not suitable vehicles for it.

We would simply say this, that the proposition that Love and Thoms, be it right or wrong, is causing some grave mischief, is not borne out by the fact that the appellants do not point to a vast number of cases which are raising the issue. If there is such a case, it is always open to the appellants to raise it, and in fact, your Honour, we will go into this in more length if the appeal is ever reached, this is just the wrong vehicle.

Removal of a habeas appeal might have looked like an easy way to reconstitute the constitutional issues from the discontinued case, but it simply will not prove to be such, and the correct way to deal with the Commonwealth’s objective is to have a suit in the original jurisdiction or in the Federal Court where the facts can be found and the issues can be addressed properly. Doing it in a removed appeal from habeas, with respect, is never going to provide the result that the Commonwealth seeks.

Your Honour, the final matter, in‑chief at least, was this. If your Honour could go back to our application itself, to the order that we seek, one issue raised by the appellants is that if the stay were to include
paragraph 2, then the period may.....lengthy or indeterminate, because we do not know how long any further judicial review might take.

Could I indicate it would be sufficient for today’s purposes, if we were otherwise successful, that the order could be made in terms of paragraph – effectively, paragraph 1, which is the stay would be for a period of 28 days after the first appellant makes a revocation decision in fact concerning Mr Montgomery’s representations under the relevant section of the Migration Act with liberty to apply.

That would meet the interests of the interests of justice, in that if the decision is in Mr Montgomery’s favour that is the end of the matter, if it is against Mr Montgomery he has 28 days to see whether he has any further judicial review challenges. If he does not, that is the end of the stay. If he does, there would then be an onus on him to come back to the Court and seek an extension of the stay. May it please the Court.

HIS HONOUR: Thanks, Mr Gleeson. Yes, Mr Solicitor.

MR DONAGHUE: Your Honour, can you stay with the document that Mr Gleeson just took you to because what just happened then was a remarkable change in position on an application that was made pre‑Christmas last year.

This stay application has always been to prevent any hearing of the issues raised by the appeal, not just until a decision is made on revocation, but until any application for judicial review of that and any appeals against that. So they had been seeking a stay potentially in the duration of 12, 18 months or more and, with no notice at the last minute, appreciating the extreme overreach of that claim, to abandon it in the closing sentences of submissions in support of the stay is amazing and is really representative of the fact that what our friends are seeking to do is to have this Court adjourn the hearing of an appeal that is ready to be heard in only a few weeks from now, and recognising the rather extraordinary and very unprincipled nature of that application, they are seeking at the last minute to wind it back to something that your Honour has some chance of finding palatable.

In our submission, your Honour just should not entertain this, which is really an application that combines with asking your Honour to pre‑empt a whole range of issues that are quite properly to be considered by the Full Court. The second half of my friend’s submissions, taking through things that they intend to say on the appeal, really highlights the extent to which your Honour is being asked to just assume that there is force in the proposition that the appellants are going to put at the appeal, and while they list a rather impressive number of hurdles the fact of the matter is they are not very high hurdles and they are not very difficult to clear.

For example, one of them is, our friend says, well we need leave to appeal. The Federal Court Act says you do not need leave to appeal in a matter concerning the liberty of the subject. So that is one of the matters that has been put against us and I do not think it is appropriate for your Honour to take you through our responses to all of the matters that are going to be run on the appeal. But your Honour should not assume that just because it is said there are all these issues that have to clear before we get to the substantive issues on the appeal that that is going to present any great difficulty.

Perhaps more fundamentally, your Honour, by way of introductory observations, the notion that this case is an unsuitable vehicle and that we should have pursued the appeal through other vehicles rather invites your Honour sotto voce to adopt the special leave type lens to this application when, in truth, the appeal having been instituted and being before the Court, unless our friends can take themselves within one of a really quite limited number of exceptions – abuse of process and matters of that kind – the ordinary position is that the Court should perform its duty to exercise the jurisdiction properly invoked in it.

Our friends are just ignoring the body of law about the non‑exercise of jurisdiction and inviting your Honour to see this as a discretionary question that is at large, which, in our submission, your Honour should not do principally for this reason, that nothing that you have heard from Mr Gleeson denies that what is in issue in this appeal is a dispute about the existing rights and liabilities of the parties.

Right now, Mr Montgomery is in the community. He is in the community without a visa, and despite the fact that he is not an Australian citizen – and that state of affairs exists and only exists because of the orders that the Commonwealth is seeking to challenge in this Court – and that is so, notwithstanding the fact that Justice Derrington said it was uncontroversial that the detaining officer held a reasonable suspicion that Mr Montgomery was an unlawful non‑citizen. Your Honour will see that on page 27 of the cause removed book at paragraph 58.

So the uncontroversial facts were that the statute in its terms applies to require detention. It is true, of course, that if in that application there is constitutional overreach, then the statutory duty would need to be confined, but in this case, your Honour, there was no finding that the respondent satisfies the tripartite test, and there could never have been such a finding because, as the majority had formulated the tripartite test in Love, one of its limbs is that the person be biologically descended from an Aboriginal Australian and there was no evidence to that effect before the court.

It was on the basis of the absence of that evidence that the detaining officer said that she held a reasonable suspicion – or that she held a suspicion, which we submitted was reasonable, that the tripartite test was not satisfied by Mr Montgomery and so the prima facie duty to detain an unlawful non‑citizen was enlivened.

The proposition that because this was a habeas case decided on 189 it somehow renders the case unsuitable, we submit totally misses the point of the way these issues actually arise in practice. So the critical thing at the coalface in administering the Migration Act, your Honour, is not whether or not the person objectively satisfies all three limbs of the tripartite test, because where this actually arises as a problem is when a detaining officer has to say, “Do I or do I not detain this person who claims to satisfy the tripartite test?” That is sort of the first point where that issue bites.

So it arises in the very context where it arose here where you have a detaining officer who says, “I know that you are an unlawful non‑citizen, therefore I know that the Act appears to require me to detain you. Do I do my duty as the Act states it to be or do I release you anyway, and how do you work that out?” Here you have, in the evidence before Justice Derrington, that would be the factual foundation for the appeal, you have an officer who does the process correctly, recognises that the statute appears to require detention, then she says, well, what about partial disapplication, and decides that Mr Montgomery probably does satisfy limbs two and three of the tripartite test.

But then she looks at biological descent and says, well – and, your Honour, it might be worth me taking your Honour, given you have the cause removed book – could you turn to paragraph 53(v), which is on page 25 of the cause removed book, and when your Honour has that you will see that just after Love and Thoms was decided – so that is February 2020 – the officers of the Department were clearly trying to work out what to do about that and they interviewed Mr Montgomery three times, wanting to know about:

biological parents and whether they have Aboriginal ancestry –

and he told them that, in effect – and your Honour can read what is there, but he basically said, well, I am not aware of having any Aboriginal ancestors, and he tried to “gather more information” and he “couldn’t find any further information”. That is at the end of paragraph (c). So he asked but he could not find any basis to say that he did, and then you see – and what Justice Derrington is doing here is summarising Mr Montgomery’s affidavit. You can see the summary in paragraphs (w) and (x):

You don’t have to be biologically born Aboriginal to call yourself Aboriginal –

and then in (x):

‘I do not need to have a biological Aboriginal ancestor to be Aboriginal.

So, what confronted the Department was a person who could not give any evidence of biological ancestry and has basically said “I do not need to”. The officer responds to that by saying, “I have considered the issues raised by Love but I reasonably suspect that you are” – well, “I reasonably suspect you are an unlawful non‑citizen and I see no basis therefore why 189 cannot apply validly in accordance with its terms to require me to detain you”.

Justice Derrington in the face of that evidence said because there is a question mark about whether biological descent means biological descent, and also because you have given him social security and ABSTUDY benefits for a period of time, I am going to hold that the subjective suspicion that you held was not objectively reasonable and he gets released.

So what this appeal correctly raises, on the facts as they exist right now, is whether officers of the Department are required to act in accordance with the terms of 189 to detain Mr Montgomery or whether they are not, and whether he is entitled to be at liberty, and that is the issue that we are asking the Court to decide and it is determinative of concrete rights and duties of the parties right now.

In answer to that, what is put is that, well, that may be the concrete rights and duties right now but maybe the rights and duties might change if the Minister makes a different decision. Now, we do not deny that there is an application for revocation of the cancellation that the Minister will have to decide. There are two possible outcomes of that decision, either revocation or non‑revocation, and our friends now appear to accept, notwithstanding some of the evidence that they have filed, particularly paragraphs 15 and 21 of Ms Chetty’s affidavit, but they now appear to accept that it would be wrong for your Honour to enter into the merits of that.

The fact of the matter right now is that we do not know what the Minister will do. But the best case for the respondent is that the Minister might choose to revoke the cancellation. Now, they say really by way of assumption that if that happens the appeal becomes moot. In our submission, that is far from clear. It is not at all apparent that that is so. But our main point for the moment, your Honour, is that the whole question of mootness is itself at this point hypothetical because if the Minister decides to refuse the revocation application then the issue of mootness would never arise.

So to engage in a debate about whether the matter is moot or not is, at the moment, to invite your Honour to speculate about what the Minister may say and when, and that to have an argument – and I can get into it if it would assist your Honour to explain why we say that it is not clear that the matter would be moot, but one reason might be, your Honour, that unless our friends were to entirely disclaim the possibility that if they succeed that they would claim false imprisonment against us, then it might well be necessary to decide the question of whether or not Mr Montgomery could be validly detained under 189 whether or not he ends up having a visa.

Our friends certainly have not disclaimed that at the moment and that is one reason why questions of status might well be live issues. But also, your Honour might have noticed in the written submissions that we have cited Ruhani (No 2) in this Court where in a much stronger case for mootness than would exist in this circumstance the Court held that it should nevertheless proceed and determine the appeal.

For the moment, your Honour, we submit that all your Honour needs to do to decide this stay is to say that there is no doctrine of prospective mootness that the Court will not adjourn an appeal about existing rights and duties because of the possibility that something might happen that would render the appeal moot.

If there were a doctrine of prospective mootness – and our friends have identified no authority at all that would support such an idea – that would be a principle that could potentially apply to a great many appeals because in almost every public law appeal there will always be the possibility that a decision might be made in the future that would render the appeal moot.

So, quite how one would draw the boundaries around this prospective mootness doctrine that our friends are floating for your Honour is, in our submission, highly problematic. Indeed, in many private law appeals there would exist the possibility of a commercial settlement right up till the end which might mean that the facts might change in a way that would result in the appeal becoming moot.

While it is true that here we do know that there will be a decision one way or the other, it would only be in the event that that decision turns out to be favourable to Mr Montgomery that a mootness question would even arise, and then if that happens our friends can bring an application at that point in time and ask the Court to deal with it.

But if it does not happen, then the appeal that is ready to be heard would have been adjourned for no reason, stayed for no reason, and in the meantime officers of the Department would be left in an unsatisfactory state in knowing how to deal not just with Mr Montgomery but also with other people who it is now open to say, well, even though I do not have biological descent from an Aboriginal person I say I get the benefit of the tripartite test anyway and look at the Montgomery decision of Justice Derrington, you have to let me out of detention.

The decision has direct implications for the rights of Mr Montgomery and the duties of officers, but it has further implications in blurring the lines around how officers are supposed to act in giving effect to their duties under the Migration Act, and the sooner that lack of clarity can be resolved in the Commonwealth’s submission, the better for everyone.

Our friends, and particularly this, I suppose, assumes significance, given their reformulated narrowing of the stay that they seek, were – indeed, Mr Gleeson made a submission that a decision ought to have been made by now on the revocation application. That submission, your Honour, is wrong, and should not be given any weight for this reason. Your Honour will have seen in the affidavits that you have read an account of the steps that have been taken in the removal application.

If your Honour could just go back to Ms Chetty’s affidavit of 7 March, you will see that it is recorded that she indicated just a couple of days after the orders were made on 19 November:

that Mr Montgomery intended to provide further materials -

and she said then, well, if you are going to make a positive determination, if you are going to find for me, then please get on with it. This is paragraph 5 of the 7 March affidavit.

HIS HONOUR: Yes.

MR DONAGHUE: But she certainly did not say, if you are going to make a negative determination please get on with it notwithstanding the fact that I have indicated to you that I want to make further submissions, and it would have been a truly bold decision for the Minister, having been asked a couple of days after habeas had been granted, asked for an opportunity to make submissions, to have said, “Well, bad luck, I am going to decide and I am going to decide against you straight away”. Ms Chetty certainly was not inviting the Minister to do that, and the Minister could not reasonably have understood her to be doing so.

The submissions that Mr Montgomery wanted to provide were not actually provided until 4 February, so when Mr Gleeson says, well, they did not even try to open these documents for ages, they did not get the submissions until 4 February, and the evidence about opening the documents suggested it happened about a week later, but even then, after 4 February, further material continues to dribble in. By 16 February, and this is paragraph 8, Ms Chetty says, well, in response to a request from the Department, have you given us everything, she says, well, I have provided:

all documents at this point –

But then, as you see in paragraph 9, about a week later, more documents are provided from Dr Watson, and then in paragraph 10, a further 8‑page submission as recently as last week, 7 March. So it just, with great respect to our friends, is an amazing submission to say that, in the context where material has continued to be provided in support of this submission over time until as recently as last week, that a decision should already have been made, the Minister has a reasonable time to make the submission and is entitled to properly consider the material that has been provided in support of the application.

By continuing to provide material up to this point of time, the length of the process has just inevitably been extended. So, having extended the length of the process in that way, it cannot then be right for them to say, well, you are the architect of any delay that happens in the hearing of the appeal because you have stretched out the process. The Minister is now, Ms Chetty says in paragraph 11, “I confirm that I have given you everything, I do not intend to provide anything further unless the Department asks”. The Department can then, or the Minister can then properly take a reasonable time to make the decision.

If the decision turned out to be favourable to Mr Montgomery, as, of course, is possible, then our friends can bring such application as they are minded to bring then, and we will argue that it does not render the appeal moot, but that might never happen, and given the speculation, in our submission, your Honour should not grant this stay application on the basis of what is nothing more than a bare possibility.

Nothing in Mineralogy supports the idea that your Honour should adopt a different approach to that. Again, like my friend, I will not reagitate those principles, or take your Honour through it, but what the Court is talking about, particularly at paragraphs 57 through to 60 in Mineralogy is not deciding matters divorced from the administration of the law, not deciding hypothetical matters without proper factual foundation, and not deciding more than is necessary to decide the rights and duties of the parties.

In particular, the Court is saying if you can decide the existing rights and duties of the party on a non‑constitutional point then do not decide the constitutional point, because you can exercise judicial power to quell the dispute without getting to the Constitution. This case is nothing like that. Here, the existing rights and duties of the parties depend totally on the question whether 189 of the Act does or does not need to be confined by reason of Love and Thoms.

The reason that Justice Derrington found that 189 did not apply to require detention here is that her Honour thought that it was necessary to confine, and your Honour sees this at paragraph 46 of her Honour’s reasons on page 20 of the cause removed book, she summarises principles from a Full Federal case called McHugh, and in paragraph 5 of that summary near the bottom of page 20 she says:

Sections 13(1) and 14(1) must be taken to be construed as directed only to non‑citizens who are not Aboriginal Australians –

and on that basis it was held that the reasonable suspicion that needed to be proved was not the suspicion that the statute requires, but that suspicion plus a reasonable suspicion that a person is not an Aboriginal Australian. So it was all about confining the reading down or partial disapplication of the Migration Act so that 189 did not mean what it said. It is plainly a constitutional point, and it is impossible to decide this appeal without deciding that issue.

The reason that we submit that the resolution of the appeal might be thought to have some bearing on the question of whether Mr Montgomery can have a visa is not because we think that is the right construction of the Act. We do not. The Commonwealth submitted, as your Honour would have heard last week in Thoms, that, in our submission, one does not confine the Act by reading down sections 13 and 14 and “non‑citizen”. The problem is that in the case below, our friends put to Justice Derrington that that is what you do, and they won.

Her Honour accepted that you should confine the Act so that the term “non‑citizen” does not include a person who meets the tripartite test. If that is correct, if that is actually the way you read the Act, and the Commonwealth’s submissions are wrong, then that does create a doubt about the availability of the visa provisions, because the visa provisions are available only to non‑citizens. So if a non‑alien is to be read out of the definition “non‑citizen”, then it does have the consequence that we raise.

So, it is not a question of the Commonwealth advancing inconsistent propositions. We submit that that reading is wrong. The problem is that the
respondent is advancing inconsistent propositions. They put a case to Justice Derrington that they now realise has an adverse consequence for the reach of the visa provisions and, in our submission, they should not be free at their convenience or having regard to what suits them to move between those two positions. The Commonwealth needs to succeed either in this appeal or in Thoms or we face a state of affairs where there is Federal Court authority that confines the Act far more than is appropriately done.

So, your Honour, in our submission, despite the fact that both my friend and I have spent a little while addressing your Honour on it, in the end, this application is simple. There is an appeal ready to be heard before the Full Court in a couple of weeks’ time concerning the existing rights and duties of the parties. If our friends are right then they will win the appeal. If our friends are wrong, then the Court will decide issues that are of considerable public importance concerning the administration of the Migration Act, and there is no reason why your Honour should try to pre‑empt now how those issues are to be determined only a few weeks before the hearing.

In our submission, the proper course is to dismiss the application. The matter can proceed, and if it turns out that within a relevant timeframe our friends succeed in getting a visa back, then they can bring such application as they are minded to bring there, and your Honour or the Full Court can decide whether or not that makes it inappropriate to decide the issues raised. But at the moment there is no reason to get into that, in my submission. If the Court pleases, unless your Honour has any questions, those are my submissions.

HIS HONOUR: Thanks, Mr Solicitor. Yes, Mr Gleeson.

MR GLEESON: Thank you, your Honour. The first matter I wish to reply to was the criticism of us, or in particular me, for narrowing the relief we sought from your Honour today. It is not an extraordinary course to frame what is interlocutory relief and indicate to the Court that part of it which is essential today, and that part of it which could be considered on a later occasion when the matter has developed. That is what we seek to do by the narrowing. We do not abandon the second part of the relief, we simply accept it need not be dealt with today, it can be dealt with if and when it arises.

Your Honour, secondly it was submitted that because this is a removed appeal it is within the Court’s jurisdiction, and the Court should simply exercise its jurisdiction, and we are somehow arguing against that proposition. We are not asking the Court not to exercise its jurisdiction, we are asking the Court to control the timing of its process for the exercise of jurisdiction by reference to a relevant factor, the factor being the process to which Mr Montgomery has an entitlement under orders 7, 8 and 9.

Your Honour, thirdly as to Mr Montgomery on the appellants’ case being currently in the community without a visa, he is entitled so to be by reason of the orders, which, as orders of a superior court, are valid until set aside. If the Minister wishes to regularise his position pending the outcome of all processes, a bridging visa is available.

Your Honour, fourthly and perhaps the second‑last point, we are not advocating a doctrine of prospective mootness. Of course not. What we are saying is that the appellants’ submissions have never grappled with the rights arising under orders 7, 8 and 9 to have that process carried out according to law, and that is a relevant factor for the Court in deciding whether to grant the stay. That was the third‑last matter.

Your Honour, the second‑last matter, this question about whether a visa can be granted to a non‑alien, the learned Solicitor has confirmed the Commonwealth is not putting that proposition. I have indicated to you we are not putting that proposition. Orders 7, 8 and 9 are inconsistent with that proposition. They give us the right to a reconsideration of the decision whether to cancel a visa, so their legal premise is that Mr Montgomery, in law, can be granted a visa in appropriate circumstances. That is the premise of the orders that we embrace, and which the Commonwealth does not appeal. So, the suggestion by the learned Solicitor that somehow we have played ourselves into a conundrum, we would ask your Honour to firmly reject.

Your Honour, as to the final matter, the learned Solicitor said it is simple. The appeal is listed. It should go ahead. If, at some point, Mr Montgomery gets the benefit of a visa, well and good, the Court can decide what to do at that point in time. We suggest it is not - that does not fully reflect the interests of justice because, on the course being urged by the Commonwealth, which is to privilege the hearing of this matter over the conclusion of the administrative process under orders 7, 8 and 9, Mr Montgomery is placed at a peril that, on one view, his liberty will be taken from him without him having obtained the benefit of a lawful decision which ought to have been made in May 2020.

Now, you have heard little from the appellants, perhaps nothing, about May 2020. We submit it is an important factor, your Honour, that that is when the lawful decision ought to have been made, one way or the other. Your Honours, they were my submissions in reply. There was one adjectival matter, if I could just mention it before your Honour ‑ ‑ ‑

HIS HONOUR: Sure.

MR GLEESON: There has been some correspondence that a notice of appeal would be – an amended notice of appeal would be filed. I personally have not seen whether the appellants have done that yet. Could we have some confirmation whether that has occurred?

HIS HONOUR: Mr Solicitor?

MR DONAGHUE: I do not know, your Honour, but I have also seen the correspondence that it will occur. It relates to a question of costs only, such that our friend will not be exposed to an adverse costs order on the appeal. I am happy to confirm that we will file an amended notice of appeal in those terms. I think that is what my friend is referring to. If he is talking about something else then perhaps I do not know what that is.

HIS HONOUR: Mr Gleeson.

MR GLEESON: Your Honour, yes, it relates to costs, but in this sense. The Commonwealth in perhaps February reversed its position in December and have now said they will not seek costs against Mr Montgomery of the appeal. That is a good start, and that should be recorded in the amended notice of appeal. What is left in the current notice of appeal is that the Commonwealth is seeking to disturb the costs order which has currently been made in Mr Montgomery’s favour in the Full Federal Court, and in place of that, the Commonwealth is seeking an order that there be no order as to costs.

We have urged the Commonwealth that that order in the current notice of appeal, order 3, ought to be reconsidered. The proposition that the costs of those who appeared for Mr Montgomery below should be taken away by reason of anything happening in this matter, we would submit is most unfortunate, and we have urged the Commonwealth to reconsider that matter as well.

The other aspect of costs is not before your Honour this morning, which is in terms of the costs of this appeal whether there should be an order that they be paid by the appellants in any event. We accept that is a matter which should be looked at by the Full Court if and when the appeal proceeds.

HIS HONOUR: Thanks, Mr Gleeson. Just speaking about costs, at the moment, and with great respect to those who are sensibly concerned about costs, I have bigger fish to fry with this application. I am concerned that I should give my decision as soon as I possibly can. That may mean that there is not time to meet the convenience of counsel, or senior counsel.

Can I say that so far as the costs of this application are concerned, I think the least harmful order I could make, or the least controversial order I could make is simply to reserve the costs of this application and make that order when I am able to make my decision on the application itself. Is that a problem for anyone?

MR GLEESON: Not for us, your Honour.

HIS HONOUR: Mr Solicitor?

MR DONAGHUE: Your Honour, it might assist you to know that I have sought instructions about whether we would seek our costs of this if the stay is refused, and the instructions I received are that we do not seek our costs in that event.

HIS HONOUR: But if the stay is granted, no doubt Mr Gleeson’s side will want their costs, so, as I say, the non‑controversial course that will mean that we do not have to take time arranging for counsel to appear in terms of the delivery of my decision, costs reserved seems ‑ ‑ ‑

MR DONAGHUE: Your Honour, I am not opposing that. I just thought I should indicate to your Honour what my instructions are on the point. But I am content with what your Honour proposes.

HIS HONOUR: Thanks, Mr Solicitor. I will consider the matter, and as I say, I will give my decision as soon as I can.

The Court will now adjourn.

AT 11.40 AM THE MATTER WAS ADJOURNED