Ahmadi v Minister for Immigration and Citizenship & Ors

[2011] HCATrans 220

[2011] HCATrans 220

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S238 of 2011

B e t w e e n -

RAMAZAN AHMADI

Plaintiff

and

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Defendant

COMMONWEALTH OF AUSTRALIA

Second Defendant

REGIONAL MANAGER, CHRISTMAS ISLAND

Third Defendant

Application for an order to show cause

GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 16 AUGUST 2011, AT 9.30 AM

Copyright in the High Court of Australia

MR D.J. COLQUHOUN‑KERR, SC:   If it please the Court, I appear with my learned friend, MR G.J. WILLIAMS, for the applicant.  (instructed by Mallesons Stephen Jaques)

MR G.R. KENNETT, SC:   May it please the Court, I appear for the defendants.  (instructed by Australian Government Solicitor)

HIS HONOUR:   Yes.  What is happening in this matter?

MR KENNETT:   Your Honour, there is an affidavit sworn by Mr Markus filed on 12 August which I should formally read, and that updates the Court on the position in relation to what is happening.

HIS HONOUR:   This is the affidavit of Andras Markus filed on 12 August?

MR KENNETT:   Yes.  That is a short update on the position in relation to the plaintiff.  It is now proposed to deal with his refugee claims in Australia and not to attempt to remove him to anywhere else until those claims have been dealt with.

HIS HONOUR:   Right.

MR KENNETT:   My friend has an affidavit as well which annexes some correspondence and I should perhaps give him the opportunity to put that before your Honour.  I think the bottom line is that the plaintiff is content to discontinue the proceeding and we are at issue about costs.

HIS HONOUR:   Right.  You have the affidavit of Amy Elizabeth Munro filed on 12 August 2011?

MR COLQUHOUN-KERR:   Yes, if it please your Honour, and again I formally would seek to have that read and with the undertakings that the Commonwealth has provided, essentially we are now in a position where we regard the applicant as having achieved the substantive relief that they were seeking.

HIS HONOUR:   Yes.  Yes, Mr Kennett, what do you say about costs?

MR KENNETT:   Well, your Honour, we would submit that the appropriate order is that there be no order as to costs.  We certainly do not seek our costs, notwithstanding that the plaintiff proposes to discontinue.  It is a question of whether this is a case where it can said that the plaintiff has achieved what he sought to achieve and has thus been vindicated.  We say it is not.  He has achieved perhaps something which he desired, but he has not achieved anything of what he was asking the Court to give him.  He sought to be released from detention and he sought declarations in relation to the lawfulness of his detention. 

He now concedes that his detention is lawful, albeit as a result of steps that have been taken since the litigation, and does not press his claim to be released.  So, whereas he may regard what has occurred as a victory, or as a positive development, it is not a case like the Victorian cases that my friend cites in his submissions where what has been given up by the defendants is substantially that which was sought by way of relief.  That is the only point that we seek to make.

HIS HONOUR:   This is the Statewide Building Society Case?

MR KENNETT:   Yes, that is one of them.  The other is the Shearwater Resort Case.  That is the only point that we would seek to make in relation to costs, your Honour.

HIS HONOUR:   Statewide is [1984] VR 269 and the Champagne Case is [2000] VSC 214.

MR KENNETT:   Yes, your Honour.

HIS HONOUR:   Now, was there a submitting appearance by the third defendant?

MR KENNETT:   I will just have that checked, your Honour.

MR COLQUHOUN-KERR:   There was.

HIS HONOUR:   That is the Manager?

MR KENNETT:   Yes.

HIS HONOUR:   The third defendant was added at some stage, I think.

MR KENNETT:   Yes, the third defendant is the gaoler, in effect, who would be the respondent to a writ of habeas corpus.  He was added after the last ‑ ‑ ‑

HIS HONOUR:   It is in the transcript, is it?

MR KENNETT:   The third defendant has just filed an ordinary notice of appearance, so far as I can see, your Honour.  I rather thought I had instructions to appear for him.  Yes, that is my instructing solicitor’s understanding as well.

HIS HONOUR:   Yes.  Now, what do you say on this question of costs, Mr Colquhoun‑Kerr?

MR COLQUHOUN-KERR:   Thank you, your Honour.  What we say, your Honour, is that we were seeking the Court to apply the law, as we understood it, in Plaintiff M61/2010E, wherein the Court reconciled the apparently inconsistent provisions in the Migration Act, one requiring the removal of a person as soon as reasonably practicable, with provisions that allowed for consideration potentially by the Minister of non‑compellable discretion.  Our submission was, the framework of that judgment was such as to compel the conclusion that absent that reconciliation, detention was, in other circumstances, unlawful save for purposes permitted by statute, and at the time there was no place scheduled as a third country or third place at which removal could take place and Mr Ahmadi was therefore potentially exposed to indeterminate detention.

We now have before the Court the affidavit of the first defendant which gives undertakings that the applicant will be processed in a manner entirely compliant with the reasoning of the High Court in Plaintiff M61/2010E and so the plaintiff’s detention is now on terms consistent with that judgment.  We do concede that therefore the basis upon which our application for writs of mandamus and habeas corpus no longer exist, but the reason they no longer exist is because the Commonwealth has resiled from the position it was then pressing publicly and upon this Court that they had an entitlement to hold the applicant indefinitely whilst they sought around the world for various places which might be available to take him.

Having made a decision that they would not take him to Malaysia, they had previously forecast – and if I can take your Honour to the affidavit of Ms Munro sworn on 6 July rather than the more recent affidavit, you will see in the annexures there that there were a number of statements made very strongly by the Minister that persons in Mr Ahmadi’s position would not be processed in Australia.  If I can take you, for example, to annexure AEM5, that is an interview with the Minister by Paul Murray, and about midway down that page it says:

Now, what I’ve said about people who arrive in Australia after last Saturday is that they can’t work on the basis they’ll be processed in Australia because they won’t be.

Then there are various other provisions in other interviews that made it plain that even if they are not sent to Malaysia, there was a determination that they would be processed in some other place, not named, but they would certainly not be permitted to remain in Australia.

HIS HONOUR:   Do you know what position was reached in the action in the Victoria Registry that was marching in step to some degree with this?

MR COLQUHOUN-KERR:   I do not, your Honour.  I can only assume it has been subsumed and caught up in the more recent developments regarding the broader challenge ‑ ‑ ‑

HIS HONOUR:   Yes, but I think it has been discontinued as well.

MR COLQUHOUN-KERR:   It may have been discontinued, your Honour.

HIS HONOUR:   I will just ask Mr Kennett.

MR KENNETT:   Your Honour, I understand it has just been adjourned and it is back before his Honour later this week.

HIS HONOUR:   I see.

MR KENNETT:   That case has other angles, of course.

HIS HONOUR:   Some of it is going to the Federal Court, is it?  Is that the proposal?

MR KENNETT:   I was not aware of that, your Honour.

HIS HONOUR:   I am not sure.

MR KENNETT:   It has the point in it about dividing families which makes it a bit ‑ ‑ ‑

HIS HONOUR:   Yes, that is right.

MR KENNETT:   It has some additional issues.

HIS HONOUR:   Get some instructions.

MR KENNETT:   Your Honour, I am told the plaintiffs in that case wanted to consider their position so the matter was just stood over; nothing has been done yet.

HIS HONOUR:   Yes.  Yes, Mr Colquhoun‑Kerr.

MR COLQUHOUN-KERR:   Yes, thank you, your Honour.  Your Honour, we would submit that the circumstances in which the Commonwealth placed the applicant compelled him to take these proceedings to protect his interests.  He arrived in Australia in circumstances where, as the law was understood as a result of this High Court’s decision, this honourable Court’s decision, he could have expected to be processed under the administrative arrangements that were put in place following M61/2010E.  Instead, retrospectively, in respect of his case, an announcement was made that he would be not permitted to be processed under those arrangements and he would be sent elsewhere.  There was no limit set to the length of time in which he would be held pending those arrangements being put in place, and it was plain that those arrangements were intended to be punitive in their nature. 

HIS HONOUR:   The trouble is, as matters are falling out, I cannot and should not decide one way or the other whether you would have succeeded.

MR COLQUHOUN-KERR:   Well, your Honour, it does fall in the circumstance of those cases that is referred to – and it is perhaps, your Honour, one of those wonderful ironies – a decision of Justice Gillard in Champagne where the court is in a position to evaluate the likelihood of success on a very brief basis.  If I might refer your Honour to paragraphs 49 and 95 of that judgment, only to mention that where it is possible in a succinct way to come to that conclusion, it is open for a court to do so, and in fact his Honour Justice McHugh mentioned that there will be occasions where a court can conclude the likelihood of success.  What we say is that unless it were plausible on any basis that the Commonwealth advances that the decision of a unanimous Court of the High Court would be either overturned or, alternatively, distinguished in some way, only one conclusion was possible.

Now, we are not asking the Court to make a finding because it is not appropriate for this Court to make such a finding, but we are asking the Court to say that it is very likely, in the absence of any reasons that have – and none have been advanced – I remember my learned friend, Mr Kennett, when your Honour pressed him on what basis the Commonwealth would respond at the last time we were speaking together, Mr Kennett simply said it would be a matter where there would be very little evidence because the evidence the Commonwealth would be likely to rely on would be simply that they were making inquiries.

So what we submit is that where there is a situation where a person is being detained, potentially indeterminately, they take action to vindicate their rights, they do so against a framework of law that the High Court has established and, ultimately, the Commonwealth concedes, effectively, the relief that they have sought; this Court can make an order for costs.  What we submit is that the defendants’ decision of 25 July, which was the decision after the announcement of the Malaysian solution, has afforded the plaintiff a successful outcome and were it not for that decision, this

proceeding would be continuing and undertakings – well, not only for that decision, the decision and the undertakings that the Commonwealth has made and were ultimately prepared to give, but not until costs had been incurred and the detention of the plaintiff prolonged.

The Commonwealth now has made those undertakings, it has vindicated the rights that the plaintiff has brought in circumstances where he had properly commenced proceedings to protect his interests on the basis of strong statements of the first defendant that he had decided not to consider the grant of a visa to the plaintiff in circumstances which in M61/2010E were, in my submission, your Honour, flying in the face of the reasoning of this Court.  So we would say that this is a case like Champagne where there is a proper basis for the Court to say there was a high probability of success, it does not need to conclude that the matter would have been resolved in the applicant’s favour, but absent my learned friend being able to put some proposition that suggests there was not a high probability of success, I would submit that it is properly open to the Court to make that finding.

Secondly, it is a reasonable inference that part of the reason why, after a decision was taken not to send the applicant to Malaysia, he was not continually kept in detention for a prolonged period of time, was recognition that this matter was pending in the Court.  So we submit that there is a proper basis to move forward and to make orders for costs and that it is consistent with reasoning and circumstances that have been adverted to by Justice McHugh in Lai Qin and the decision and circumstances of Justice Gillard in Champagne View.

I cannot take the matter any further, your Honour, but we would submit that the plaintiff having achieved what he sought in bringing this application should be entitled to costs.  Those costs, as you would anticipate, with the assistance of Mallesons, have been not insubstantial and a considerable amount of work has had to be undertaken to get us to this point and the circumstances whereby the plaintiff was put in this situation were such as that he could hardly do otherwise and had he not, this process might still be prolonged and continuing.  If it please your Honour.

HIS HONOUR:   Mr Kennett, what do you say about the proposition that this case is sufficiently governed by M61?

MR KENNETT:   Well, your Honour, in the circumstances in which the case was commenced, it was very different from M61 because in M61, as the Court saw the position, there had been a decision by the Minister to consider exercising his discretion under section 46A and that commenced a statutory process which made the detention of the plaintiffs in that case lawful.  In the present case the strong statements by the Minister that my

friend has adverted to mean that there was no decision to consider this plaintiff under section 46A.  Prima facie at least there was an immediate duty to remove him under section 198 and the issue that would then arise if it be the case that there was nowhere to send him to except back where he came, for example, whether he is in any different position to Mr Al‑Kateb, they are large questions and I would not ask your Honour to form views on them immediately, but they illustrate that the case is not one where the merits can be seen and determined in a very succinct way.

HIS HONOUR:   Now, is there a notice of discontinuance to be filed?  Has it been filed yet?

MR COLQUHOUN-KERR:   There has been no notice filed, your Honour, but I understand we intend to do so, of course, subject to the proceedings. The High Court Rules require, if costs are not to be awarded against us, to come before your Honour anyway.

HIS HONOUR:   I understand that.

MR COLQUHOUN-KERR:   Might I just say, if your Honour would excuse the opportunity to speak again in respect of my learned friend, might I say, your Honour, that the Minister having made a decision that the applicant would not be sent to another place has speedily commenced processes to evaluate his entitlement to remain or otherwise as a refugee and the affidavit of the Minister sworn on the 12th, I think, itself contains a paragraph that indicates that the first interview to that effect was conducted I think on the 5th – if my friend can confirm that.  So we would say, your Honour, that to carry out the obligation to either remove or otherwise was quite capable of being proceeded with swiftly and to hold persons in limbo in an indeterminate way, as was being done, was inconsistent with Plaintiff M2010E.  We would also say, your Honour, that the ‑ ‑ ‑

HIS HONOUR:   You have to reach a terminus pretty soon, Mr Kerr.

MR COLQUHOUN-KERR:   Yes, of course.  Well, I will not labour the point, but I just wanted to make the point that once one looks at what is the obligation, it can be done rapidly and a decision made.  It does not require a prolonged period.  It is not an Al‑Kateb case at this point.  It might have become one had the Minister persisted with his intention.  Regrettably, we do not have the opportunity to review Al‑Kateb as might have been the case had this matter proceeded.  If it please your Honour.

HIS HONOUR:   Since this matter was last before the Court, there has been filed an affidavit by Mr Andras Markus which was affirmed on 12 August 2011.  Paragraphs 5 and 6 of that affidavit refer to a joint media release by the Prime Minister and the first defendant on 25 July 2011.  This is exhibited as exhibit AM-2 to the affidavit.  Paragraph 6 conveys instructions that, consistently with that media release, the plaintiff will now not be removed to a third country at least until after the asylum claims have been dealt with in Australia and consideration has been given to whether the Minister wishes to exercise his powers under either section 46A or section 195A of the Migration Act 1958 (Cth) with respect to the plaintiff.

With that assurance in mind, the plaintiff now proposes to file a notice of discontinuance pursuant to rule 27.10 of the High Court Rules 2004. The consequence of that would be that, subject to any contrary order of the Court, the plaintiff would pay the costs of the other parties up to the time of the discontinuance. That provision, as I said, is subject to a contrary order.

The defendants did not press for an order going to that extent.  They seek, rather, an order that each side bear its own costs so that there be no order as to costs.  The plaintiff seeks an order that the defendants, or at least the first and second defendant, bear his costs.  The relevant principles relating to such a situation are explained by Justice McHugh in Ex parte; Lai Qin (1987) 186 CLR 622.

Notwithstanding all that has been said on behalf of the plaintiff, I cannot reach sufficiently comfortable assurance as to what would have been the outcome if the matter had proceeded to support the order for costs which the plaintiff now seeks.  In all the circumstances, I think the best order would be that there be no order as to costs of the proceedings and that will take effect upon the filing of the notice of discontinuance which has been foreshadowed.

AT 9.54 AM THE MATTER WAS CONCLUDED