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High Court of Australia Transcripts |
Last Updated: 31 July 2024
IN THE HIGH COURT OF AUSTRALIA
Office of the
Registry
Melbourne No M61 of 2024
B e t w e e n -
ATTORNEY‑GENERAL OF THE COMMONWEALTH
Applicant
and
CZA19
First Respondent
COMMONWEALTH OF AUSTRALIA
Second Respondent
MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
Third Respondent
Office of the Registry
Perth No P28 of 2024
B e t w e e n -
ATTORNEY‑GENERAL OF THE COMMONWEALTH
Applicant
and
DBD24
First Respondent
MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
Second Respondent
COMMONWEALTH OF AUSTRALIA
Third Respondent
GAGELER CJ
TRANSCRIPT OF PROCEEDINGS
AT BRISBANE BY VIDEO CONNECTION
ON WEDNESDAY, 31 JULY 2024, AT 9.59 AM
Copyright in the High Court of Australia
____________________
HIS HONOUR: In accordance with the protocol for remote hearings, I will announce the appearances for the parties.
MR P.M. KNOWLES, SC appears for the
applicant and the second and third respondents in both matters. (instructed by
Australian Government Solicitor)
MR D.J. HOOKE, SC
appears with MR J.R. MURPHY for the first respondent in
matter M6/2024 and with MR J.D. DONNELLY and
MR M.G.S. CROWLEY for the first respondent in matter
P28/2024. (instructed by Zarifi Lawyers)
HIS HONOUR: Mr Knowles, these applications for removal by the Attorney‑General are, of course, as of course within the language of section 40(1) of the Judiciary Act. What do you say about the question of costs that is raised in the response by the first respondents?
MR KNOWLES: Your Honour, my instructions are that my clients do not offer a costs undertaking of the type sought and the reason for that is that in the response is analogies made to a situation where a person in the position of my clients, that is the second and third respondents, would seek special leave. That circumstance is quite different because it arises where a public authority wishing to correct a precedent in the court below seeks to use a vehicle to bring an appeal to this Court.
The situation here is quite different in that my clients have not been unsuccessful in the court below. There is no precedent correct, this is an issue that is being brought before this Court without any previous decision, and we say that the ordinary position that costs should follow the event is the appropriate one.
HIS HONOUR: You are aware that in the case of Al Khafaji, a case that the Minister chose to bring as a test case before this Court by an order of removal, a condition as to cost was attached to the order that was made there.
MR KNOWLES: Yes, and I am aware of some variation in the practice in that regard in the matter of AJL20 where an appeal from the Federal Court was removed, the Minister having been unsuccessful at first instance. There was, as I understand it, no such condition, but I do not disagree with what your Honour has said, that there have been cases where removal has been conditioned. Of course, removal is as of course, but I accept that for the matter to stay in this Court it might be subject to condition.
HIS HONOUR: Yes. Now, the arguments foreshadowed in the response seem to go somewhat wider than the basis upon which you are seeking removal. Do you have anything to say about the consequence of the scope of the proposed argument that has been indicated by the first respondent in each matter?
MR KNOWLES: Your Honour, the short point is that there is nothing raised that makes referral to the Full Court unsuitable. As I read paragraphs 7 to 9 of the response, at least in the CZA19 matter, paragraph 7 sits firmly within what we say the constitutional issue is, paragraph 8 raises an issue that may be somewhat more factually intensive as to whether there has been unreasonable delay in making a visa decision but nevertheless the parties have agreed facts in the court below that should allow that issue to be tested, and paragraph 9 raises something of a new issue as to the proper application of the proportionality to the analysis in NZYQ. That issue had not been fully advanced previously in the court below but there is nothing raised by that paragraph 9 that would seem to be one that would make it unsuitable for referral to a Full Court of this Court.
HIS HONOUR: Are the facts, relevantly, fully agreed?
MR KNOWLES: Subject to two qualifications, yes. In the CZA19 matter, the parties are very close to agreeing an updated statement of facts. They had previously already agreed facts in the Full Court. The agreements should be, I anticipate, capable of being reached. There is in the DBD24 matter a prospect that, between now and the hearing of this matter, a decision on the pending visa application would be made.
In that event, I anticipate the parties would have to agree some further facts about the timing of the decision and perhaps the procedural steps taken in relation to that decision, but that is not a matter that has prevented agreed facts being reached in the CZA19 matter and I do not anticipate it would be a matter that would prevent agreement of an updated statement of agreed facts in DBD24 should that be necessary.
HIS HONOUR: Would there also be a need for an amended application in that event? Would the relief sought be different?
MR KNOWLES: Yes, the relief sought in that case – it would be a matter for Mr Hooke, but I imagine it would move towards the relief sought in the CZA19 matter about a declaration as to the lawfulness of past tension rather than relief in the form of habeas corpus. I should also note one other matter that is not agreed between the parties.
In the case of CZA19, to use that example, the Commonwealth accepts that there was no real prospect of removing the applicant to his country of nationality after the AAT made a protection finding. However, we do not concede the broader point that there was no real prospect of removal to any country prior to the date that his visa application was refused, and at that point a bridging visa was granted on the basis that there was no real prospect of removal. I should just explain that the reason we say that is that the position of the second and third respondents is that until the visa application was refused there was no power under section 198 to remove the applicant and thus the inquiries to determine whether there was a real prospect of removal to some third country had not been undertaken.
I do not anticipate that issue will prevent the Court hearing the issue. There is a legal question as to when the obligation to remove arises, and I anticipate that Mr Hooke will say the fact that the Commonwealth or the Minister conceded that there was no real prospect of removal immediately upon the visa decision being made gives rise to an inference as to the factual position earlier. I raise that just to say that there is a factual issue that is not agreed between the parties, but I do not think it would be the subject of evidence, it would be a matter for submission and inference.
HIS HONOUR: The scope of the actual difference between the parties on that issue would be helpfully highlighted in the statement of agreed facts, I think.
MR KNOWLES: Yes. I think that Mr Hooke and I could agree uncontroversial amendments which identify the issue that was not agreed between the parties.
HIS HONOUR: Yes. Mr Knowles, is there anything else you want to say at this stage?
MR KNOWLES: No, only in relation to procedural directions, but I do not think I need to say that at this stage.
HIS HONOUR: Mr Hooke, is there anything you want to say?
MR HOOKE: Your Honour, only in relation to the last matter, and that is the scope of that non‑agreed factual position. In DBD24 there was an agreed fact that there is presently no evidence that would indicate the applicant has a right to enter and reside in any third country. That, I apprehend, would be the type of fact that ought to be capable of agreement in CZA19, as well. I would have thought there would be little scope for controversy on that, so I would not see that factual issue as leaning large, if I can put it that way.
Your Honour, the only other matter that I wish to raise – and I will not say anything about costs beyond what we have said in writing and to say that, really, there is nothing our learned friend said that would displace what we have put in that regard. The only other matter is the listing of the matter for hearing. DBD24, as your Honour has seen, remains in detention, and for that reason we would ask, with respect, that the matter be given the earliest listing that the Court is able to accommodate, whatever that might be. Beyond that, your Honour, there is nothing that I would wish to add at this stage.
HIS
HONOUR: Thank you, Mr Hooke. The orders I will make in CZA19
are as follows:
The orders I will make in DBD24 are as
follows:
Having made those orders for removal, I can indicate that
the Court would be likely to be in a position to hear the matters for one
day in
November. There are some matters of procedure to attend to in the interim. The
parties should give some close attention
to agreeing on the facts at the
earliest available date. Mr Knowles, do we have any indication of the
timeframe for the making of
the decision that you have foreshadowed in
DBD24?
MR KNOWLES: No fixed timeframe other than I am instructed that there is a possibility that it would be made by the time of a hearing in October or November.
HIS HONOUR: It would be most undesirable if we were amending applications and changing the agreed basis upon which the case is going forward, given that this has been chosen as a test case on your side, Mr Knowles, so the sooner the better.
MR KNOWLES: If the Court please.
HIS HONOUR: I think at this stage I will leave the precise timetabling to the Registry and to the parties. Will there be a need, Mr Knowles in your view, for me to review the matter before it comes before the Court in November?
MR KNOWLES: No, I think the parties should be able to agree on agreed facts, and I do not think it would be necessary that that be transformed into a special case, so on the basis that it is likely agreement could be reached I do not think it will be necessary to have a further hearing before your Honour.
HIS HONOUR: Thank you. Mr Hooke, what do you think?
MR HOOKE: Your Honour, I think it is unlikely, subject to anything that falls out of a decision being made. One issue that I just flag in that regard is whether if that were to occur it would assist the Court to have a case in which no decision had been made for that subtle factual variation, but I do not have a firm view on that, I must say.
HIS HONOUR: All right. At the moment I will not schedule any further directions hearing. We seem to have lost Mr Hooke. I will adjourn momentarily to allow the connection to be re‑established.
AT 10.17 AM SHORT ADJOURNMENT
UPON RESUMING AT 10.18 AM:
HIS HONOUR: It is good to see you back, Mr Hooke.
MR HOOKE: My apologies, your Honour.
HIS HONOUR: I am sure it was not your fault. I think we have reached the end of the directions hearing, gentlemen, anyway. Thank you for your attendance, thank you for your submissions. As I indicated, the matter is likely to be listed before all available Justices for one day in the November sittings.
MR KNOWLES: May it please the Court.
MR HOOKE: May it please the Court.
AT
10.19 AM THE MATTER WAS ADJOURNED
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