Applicant A269-2003, Ex parte - Re Manager of Baxter Immigration Detention Centre & Anor

[2004] HCATrans 570

[2004] HCATrans 570

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  No A269 of 2003

In the matter of -

An application for a Writ of Habeas Corpus and a Writ of Prohibition against THE MANAGER OF THE BAXTER IMMIGRATION DETENTION CENTRE

First Respondent

THE SECRETARY, DEPARTMENT OF IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Second Respondent

Ex parte –

APPLICANT A269/2003 BY HIS NEXT FRIEND RB

Applicant/Prosecutor

HAYNE J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

FROM ADELAIDE BY VIDEO LINK TO MELBOURNE

ON MONDAY, 13 DECEMBER 2004, AT 11.00 AM

(Continued from 6/12/04)

Copyright in the High Court of Australia

__________________

MR D.M.QUICK, QC:  May it please the Court, I appear in lieu of Ms Mortimer for the applicant.  (instructed by Jeremy Moore & Associates)

MR S.P. DONAGHUE:  I appear for the respondent, your Honour.  (instructed by Australian Government Solicitor)

HIS HONOUR:   Yes.  Well, Mr Quick, what is the position?

MR QUICK:   Your Honour, on the last occasion, your Honour adjourned this matter to enable affidavits to be filed in connection with the discrete issue of statelessness.  Three affidavits have been filed, and I would refer to them.  They are each dated 10 December, that is last Friday.  The first is of AAB, who is the father of the applicant prosecutor.  The second is RB, who is the mother of the applicant, and the third is Mr Abdul Safi, who, as your Honour will see when I refer to the affidavit, is a former judge of Afghanistan.  Has your Honour had a chance to read those affidavits?

HIS HONOUR:   Yes I have.  Let me just make sure though that I have what I should have, because I rather suspect that in my unique ability to disarrange things, I have succeeded in doing so.  I saw Mr B’s affidavit and read it, Mr Quick, and, as I say, with my unique capacity to chew papers and leave them behind, I have, I suspect, managed to leave it sitting on my desk in Chambers, but I am now being supplied with a copy.  Now, you rely then on those three affidavits. 

MR QUICK:   Yes I do, your Honour.

HIS HONOUR:   Can I just before we go further ask Dr Donaghue, whether there is any objection to the reception of any of that material.

MR DONAGHUE:   No, there is not, your Honour.  There are two further affidavits on the file.

HIS HONOUR:   There are in addition, I think, Mr Quick, affidavits of James Robert Williams filed on 10 December this year, sworn on 10 December and there is a further affidavit, I believe, by Ashley Jefferson sworn and filed on 10 December.  Do you have those affidavits?

MR QUICK:   I have them and I am familiar with their contents and prepared to address on them.

HIS HONOUR:   And is there any objection to my receiving the evidence in those?

MR DONAGHUE:   No, your Honour.

HIS HONOUR:   Yes, very well.  Yes, Mr Quick.

MR QUICK:   May I briefly review the evidence in relation to the issue of statelessness, and of course, precede my submissions in relation to it by an observation that obviously would have been made to your Honour beforehand, but that what is required here is evidence sufficient to raise an issue which is worthy of showing that the respondent must show cause.  It is a low evidentiary onus.

I turn then to the affidavit material.  First, the affidavit of AAB.  Your Honour, in paragraph 2, he deposes to the fact that he is a national of Afghanistan and was born there.  The significance of that, and indeed the significance of his wife’s nationality as well, is that it is the link and the basis upon which the affidavit of Mr Safi subsequently relies when he speaks of certain events occurring in relation to the nationality of Afghanistan nationals.  So Mr B says first of all he is a national of Afghanistan.  He then sets out in the following – he says in paragraph 3 that he has been issued with an Afghan identity card.  Again, that is a recognition of the fact that he is a national of Afghanistan, and the card is exhibited to the affidavit.

In paragraph 3 through to paragraph 14 he relates the history how he came to this country, and it is sufficient to observe only that he left Afghanistan and travelled via Pakistan to Indonesia and arrived as part of a people‑smuggling operation in this country.  In paragraph 15 of his affidavit there is further confirmation of the fact that he is an Afghan national – I am sorry, in paragraph 15, he refers to a person called MA.  He is the brother of his wife.  The relevance of that I will come to in a moment, but there is evidence referred to in paragraph 15 and the exhibits to say that Mrs B was an Afghan national, confirmation of her brother as an Afghan national and confirmation that both Mr and Mrs B have attended the mosque in the Jaghoori district and other documents there in paragraph 15 confirming the fact that Mr and Mrs B are Afghan citizens.

In paragraph 16 there is reference to the fact that various requests have been made of the Minister to use her discretion to substitute a more favourable decision from that already received in the Refugee Review Tribunal with respect to his continued stay in Australia.  In paragraph 17 he refers to the fact that his father was a member of the British Army.  He refers to the fact that he was in a particular regiment, 106^th Hazara Pioneers, who says were comprised entirely of Afghan Hazaras, which is the region from which he says his father came. 

In the exhibits to the affidavits, your Honour will see that his father’s name, AH, is in fact listed as having served in the 106^th Hazara Pioneers.  I would point your Honour to the precise parts on those pages where the name appears, but I do not know whether your Honour needs to do that.  If your Honour has first the exhibit AB4, the very first name on the page numbered 214, which is the first page of the document, is AH, so he is listed there as being a member of that regiment which Mr B deposes to was composed of entirely of Afghans.  The source of his knowledge is not stated.  I recognise that it is very weak evidence in that respect.  So that the thrust of Mr B’s evidence is that he came here as a refugee seeking protection, has sought protection in Australia and that he is a national of Afghanistan.

I turn then to the affidavit of Mrs B.  In paragraph 1 she deposes to the fact that she is the mother of the applicant.  She deposes in paragraph 2 to the fact that she is a national of Afghanistan.  She gives some details of her early life and one would note that it is in Afghanistan.  In paragraph 13 she says that she left Afghanistan with her brother and children because they:

were in danger from the Taliban.  My husband went to Pakistan for about one year before me.  I did not go with him then because we did not have enough money then.  In about 1999 I travelled to Rawalpindi in Pakistan with my brother MA and my five children.  This was the first time I had left Afghanistan or even Charkh.

In paragraph 14 she left from Rawalpindi to Jakarta.  She had never heard of Australia before then.  She arrived in Ashmore Reef in January 2001, spent some time there, came to Australia and was detained.  She gave birth to the applicant on 15 October 2003 and has been here – the child has been in detention. 

I then refer if I may, your Honour, to the affidavit of Abdul Safi.  Your Honour will see that the deponent deposes to the fact that he was born in Afghanistan - that is in paragraph 1.  In paragraph 2 he says that he is a graduate in law of Kabul University in 1969.  In 1974 he became a judge of the Kunduz Appellate Court in north Pakistan.  In the following paragraphs 3, 4 and 5 he gives details of his appointments which include in paragraph 5, 1980 to 1986 as a deputy of the Supreme Court.  He describes what his responsibilities are there.  If I can just refer to those briefly, they were both judicial and executive, and that after 1986, his duties specifically were, and I quote:

My role was to advise the Presidential office on the legal aspects of National reconciliation.  Exhibited hereto and marked with the letters “AS2” is a certified copy of the official translation of the Order of the President.

That is in the Dari language.  In paragraph 6 he says:

In 1991, I was appointed as Secretary of the Constitutional Council which is equivalent to the High Court of Australia . . .

7. The role of the Council was to advise the President on laws that were not in accordance with the Constitution. My role was to draft such advice and call Council meetings to approve my recommendations.

So clearly he is a very high official trained in law, giving advice with respect to matters of law and, in particular, matters of Constitutional law.  In paragraph 9 of his affidavit Mr Safi says that, although he is now in Australia, he left Afghanistan in 1992.  That is paragraph 7, your Honour.  He came to Australia in November 1994.  In paragraph 10 he says:

I retain an active interest in the affairs of Afghanistan in general and particularly in laws and the legal system.

Paragraphs 9 and 10 are paragraphs which are of particular importance.  If the Court pleases, I will read them: 

It is my opinion that a child born in Australia ‑ ‑ ‑

HIS HONOUR:   Just a moment, Mr Quick.  I have those as paragraphs 11, 12 and 13.  Are we working off different documents?  Paragraph 11:

It is my opinion a child born in Australia of parents who claim to be Afghan ‑ ‑ ‑

MR QUICK:   Your Honour, we are working off different documents.  Could I get a copy - would your Honour pardon me a moment? ‑ ‑ ‑

HIS HONOUR:   It makes life exciting, Mr Quick.

MR QUICK:   I am wondering what is in the additional paragraph.

HIS HONOUR:   That is a mystery you will have to solve, Mr Quick.  It is at paragraphs 11 to 13 that seem to me on reading the material to be the key to it, “It is my opinion”, et cetera ‑ ‑ ‑

MR QUICK:   Your Honour I – yes, paragraph 11 in your Honour’s document, the file document and paragraph 12:

It is my opinion that a child born in Australia of parents who claim to be Afghan nationals and if the Afghan Government accepts that the child’s parents are Afghan nationals, then the place of birth of the child is irrelevant.

So that is the first place.  The critical part is the words “and if the Afghan Government accepts”.

HIS HONOUR:   Why is that critical?

MR QUICK:   Because one will go on to read later in paragraph 13:

If the Afghan Government does not accept that the parents are nationals of Afghanistan and they are unable to provide proof of Afghan nationality, the child will not receive citizenship.

So that the critical issue is whether or not the government accepts the nationality of the parents.  If it does not, then, according to this deponent, the child will not receive citizenship.  In paragraph 12 the deponent says:

The parents of a child born in Australia who claim to be Afghan nationals may have difficulties in obtaining citizenship for their child if they are claiming protection in another country.  The parents in such circumstances are seen to have deserted Afghan nationality by claiming persecution from the authorities.

So that raises the issue of statelessness.

HIS HONOUR:   Why, Mr Quick?  Why does it raise it when both parents are at pains to claim - they may be right, they may be wrong - but both of them claim they are Afghan nationals.  One of them, the father, claims that he has a genuine tazkara which is presently in custody of the Tribunal.  Why does that raise a case of statelessness?

MR QUICK:   Because, as the deponent says in paragraph 11, it is a prerequisite to the child being granted Afghan nationality that the government accepts the child’s parents as Afghan nationals.  The deponent then says in paragraph 12 that the parents, by seeking protection in another country, have been seen to have deserted Afghan nationality by claiming persecution in Afghanistan.  That then means that the Afghan Government will not accept the parents as Afghan nationals, hence the child is disentitled or at least will not obtain, irrespective of entitlement, Afghan nationality.  That in a nutshell is the position. 

HIS HONOUR:   Can I point you to what seems to me to be some aspects of that contention, and can I list them so that you may deal with them in such way as you want.  Paragraph 11 seemed to me to be conveying information about the position where both parents claim to be Afghan nationals, but also information in the middle of the paragraph, about the position where one parent claims to be a national.  It refers to:

the Official Gazette of . . . 19 March 1992 in which it –

that is, the Gazette –

states that a child whose mother or father is a citizen, regardless of country of birth is itself a citizen. These principles are still applicable today. The current Constitution . . . (Loya Jirga) . . . also protects this right of nationals.

That is step one.  Step two, I note the conditional expression of it:

The parents of a child born in Australia who claim to be Afghan nationals may have difficulties –

not “will not”, simply “may have” –

in obtaining citizenship –

Step three, does not accept that the parents are nationals:

If the Afghan Government does not accept that the parents are nationals of Afghanistan and they are unable to provide proof of Afghan nationality, the child will not receive citizenship.

Two conditions:

In order to prove Afghan nationality, a person must have a genuine Afghan Identity Card –

Now, the father claims to have a genuine identity card which I may or may not be permitted to know is a matter of controversy with Australian authorities, but at the moment, where does that leave the claim that this child is stateless?

MR QUICK:   Your Honour, may I deal with the points in the reverse order to the order which your Honour has used.  Paragraph 13 lays down, as your Honour said, two requirements.  If either one of them is not met, then the person concerned is not accepted as a national.  In order to prove nationality, one has to have first of all the identity and then acceptance.  The identity we have; the acceptance is in issue.  The acceptance by the government is in issue for the reasons stated in paragraph 13, namely that the parents have deserted Afghanistan and are claiming that persecution occurred there.  That applies to both parents, taking it back to paragraph 11.

So we have in respect of each of two parents - the fact that they are Afghans is something on which they rely.  They have the necessary identity card but they do not have, and are unlikely to have, acceptance by the Afghan Government as nationals of Afghanistan, and the reason for that is that they are likely to be seen as having left Afghanistan claiming persecution and therefore to have deserted Afghan nationality.  This comes from a person of the status of Mr Safi, who has been a presidential adviser in relation to matters of constitutional law.  It is not something that can be lightly put aside. 

With respect, it is not for your Honour on an application of this kind to be going into the merits to a great extent.  What is necessary is to determine whether or not there is a reason for the respondents to show cause.  Any detention is prima facie unlawful.  Therefore, it is an unusual situation, for the purpose of habeas corpus, that is.  Therefore, in these circumstances it is our submission that there is a real point raised that this person may be stateless.

Your Honour, I do not propose to address at this stage in any detail the affidavits relied upon by my learned friend.  They effectively raise the issue of whether or not Mr B is a Pakistan national rather than an Afghan national.  The relevance of that would be to undermine the opinions expressed by Mr Safi.  But when one looks at the affidavit evidence ‑ ‑ ‑

HIS HONOUR:   Sorry, why would that be?  Why do you say it would be to undermine Mr Safi’s evidence?

MR QUICK:   Because Mr Safi’s evidence is relating to nationals of Afghanistan, and if the applicant’s parents are nationals of Pakistan, the opinion he expresses would not have application to them.  I think it is probably better that I address your Honour in relation to the affidavits to be submitted by the respondents after you have heard from my learned friend, but I have just identified the nature of the issue that is raised by them.

HIS HONOUR:   Yes.

MR QUICK:   Subject to that, your Honour, there is nothing further that I have to submit.

HIS HONOUR:   Mr Quick, at the last hearing there was a question raised, I think towards the end of the hearing, about whether, even if an arguable case of statelessness were to be made out, that would warrant the grant of an order nisi.  As I understood it, the point that was made against grant was that in the joint reasons in Singh v The Commonwealth (2004) 209 ALR 355, it is said that a person who is stateless falls within the aliens power and it was said that to the opinion of the three members of the Court who joined in the joint reasons, had to be added the opinion of Justice Kirby, given that his Honour proceeded from the premise that the child in Singh’s Case was not shown, in his Honour’s opinion, to necessarily have qualified for Indian citizenship.  Now, is there anything you would want to say about that chain of argument, namely that the point is concluded against you by the decision in Singh?

MR QUICK:   Your Honour, we would respectfully submit that that misstates what was said in the joint judgment in Singh.  I am referring to paragraph [190] of that judgment, it is on page – I am not sure what the Australian Law Journal Report page is, your Honour, but it is paragraph 190 and in particular, the last two sentences of it.  I am reading from the joint judgment:

HIS HONOUR:   Yes, I have it.

MR QUICK:   

“Aliens”, even if it had once a fixed legal meaning, did not bear such a meaning perhaps bear such a meaning by the end of the nineteenth century but what did remain unaltered was that “aliens” included those who owed allegiance to another sovereign power, or who, having no nationality, owed no allegiance to any sovereign power.

Is that the passage that your Honour is referring to?

HIS HONOUR:   Yes.

MR QUICK:   Your Honour, there is certainly nothing in the remainder of the judgment that seems to qualify that.  This is not actually what was raised in Singh’s Case, that is not the situation.  But apart from that, I cannot add to the submissions that were made on the last occasion in relation to that topic.

HIS HONOUR:   Yes.  Yes, thank you, Mr Quick.  Yes, Dr Donaghue?

MR DONAGHUE:   Your Honour, in my submission there is no arguable case for the grant of the order nisi, following the decision of the Full Court in Singh for two reasons.  The first reason is that there is no factual basis for the claim that the applicant is stateless, and his asserted statelessness is the only suggested basis for distinguishing Singh.  And the second argument is an alternative argument along the lines just foreshadowed by your Honour, that even if it were arguable that the applicant factually was stateless, nevertheless, recent decisions of the Court suggest that he would nevertheless be an alien.  In that context I refer to both Singh and I will also take your Honour to one or two paragraphs in the judgment of the Court in Al‑Kateb v Godwin.  I have a copy I can hand up, your Honour.

HIS HONOUR:   Yes, thank you.

MR DONAGHUE:   The primary submission is that it is not factually arguable that the applicant is stateless, and the principal reason that that submission is made is that the applicant personally has been claimed as a national by Pakistan.  I foreshadowed last week that the respondent expected to be able to put on some evidence to support that claim, and that evidence has now been put on as an exhibit to the affidavit of Ashley Jefferson.  It is probably most conveniently located as exhibit 5.  It is also part of exhibit 4, but it is the only document in exhibit.  It is actually the second.  There is a covering memo, and then it is a letter dated 6 February 2004.  Does your Honour have that? 

HIS HONOUR:   Yes.

MR DONAGHUE:   It is a letter you will see in the top right-hand corner from the High Commission for Pakistan, referring to an earlier fax regarding confirmation of the national status of Mr B’s son, the applicant in this case, born in Australia on 15 October. Paragraph 2: “As per the Citizenship Act Government of Pakistan, any child born of Pakistani parents abroad is considered a Pakistan national. Accordingly, it is confirmed” – I will not read his name in Court, given the anonymising order – “that the applicant is a Pakistan national”. So, in terms the Pakistan High Commission is writing a letter naming the applicant and attributing to him the nationality of Pakistan. Now, as we understand it, the only basis upon which the applicant attempts to meet that letter is to say that the premise is wrong – “My parents are not Pakistan nationals. Therefore, Pakistan should not say that I the applicant am one”.

In my submission, your Honour, that misapprehends the meaning of statelessness, and in that respect, if I may, I would hand up just one article of the Convention relation to the status of stateless persons.  This is the Foundation International Treaty that is concerned with statelessness dated 1954.  The only article I am handing up is Article 1 which is the definitional article.

HIS HONOUR:   Well, given that Mr Quick does not have it, perhaps you would be good enough to read it.

MR DONAGHUE:   Yes, I will read it, and was proposing to read it out.  It says:

For the purposes of this Convention, the term “stateless person” means a person who is not considered as a national by any State under the operation of its law.

Now, the only point I make in relation to that, your Honour, is that the definition focuses upon the view of the State and whether the State has claimed a particular person under its domestic law.  It does not focus on the question of whether or not the applicant wants to be claimed.  If it did, anyone who claims refugee status and says “I no longer want the protection of my country of nationality” could arguably bring themselves within the context of a stateless person.  But that is not the way this statelessness concept works.  It asks:  is a State asserting under its law that you are a citizen of the country?  And in my submission, plainly that is what Pakistan has done in the letter naming the applicant as a citizen.  Indeed, it has claimed his whole family as nationals of Pakistan.

So, while the applicant might have a case if the letter was just in general terms and if it said if you are a child of a Pakistani parent then you are a Pakistani citizen, this is not a letter of that character.  It is a letter which shows that the government of Pakistan has turned its mind specifically to the question of the applicant’s status and has stated that he is a national of Pakistan.  So there is no question of any need for any future determination to consider whether he is or is not a national.  That has happened.  Pakistan has said that he is and, in my submission, that fact alone is enough to show that it is not factually arguable that the applicant is stateless.

So that is the principal submission that the respondent puts.  I should note, although I do not propose to dwell upon it, that the law of Pakistan referred to in that letter has been exhibited also to Mr Jefferson’s affidavit at exhibit AJ-6.  It is the Pakistan Citizenship Act 1951, and section 5 of that Act says:

Subject to the provisions of section 3 a person born after the commencement of this Act, shall be a citizen of Pakistan by descent if his parent is a citizen of Pakistan at the time of this birth.

That provision, your Honour, appears to be materially identical or certainly to the same effect as the provision of the India Citizenship Act which was the provision that had or was assumed by the majority of the Court in Singh to mean that Ms Singh was a citizen of India.  The only factual material before the Court in Singh’s Case was the Act in substantially the terms of the Pakistan Citizenship Act.  So, in my submission, Singh cannot be distinguished on the facts now before the Court.

Your Honour, purely as an alternative argument because it is not accepted by my client that this is the case, but even if it were to be accepted that the evidence advanced by the applicant were to be asserted as my friend has taken your Honour through the affidavits, they show that both the applicant’s mother and father claim to be nationals of Afghanistan.  There was some indication last week from Ms Mortimer acting on instructions that there might be agreement about the national status of the applicant’s mother as a national of Afghanistan.  My instructions are that there is no such agreement.  The respondent’s position is that all members of the family are nationals of Pakistan.  Even if that factual dispute was to be resolved against the respondents, in my submission, it would not create an arguable case of statelessness in relation to the child, which is the only issue now before the Court. 

The evidence that touches on that question is the evidence that your Honour has been taken to from Mr Safi and also the exhibits to Mr Jefferson’s affidavit and Mr Williams’ affidavit.  Starting with Mr Safi, the position is that there is a large level of agreement.  In paragraph 11 of Mr Safi’s affidavit, he expresses the view that:

a child born in Australia of parents who claim to be Afghan nationals, if the Afghan Government accepts that the parents are Afghan nationals –

will be himself an Afghan.  Now, that statement of the law – indeed, as your Honour pointed out, it goes on to apply whether either parent is a citizen of Afghanistan - is said to be based upon law stated in an official Government Gazette dated March 1992.  We have a high level of confidence, your Honour, that that gazette is the same gazette as is translated as exhibit 3 to Mr Jefferson’s affidavits, so your Honour has the text of the relevant Afghan law before the Court.

Article 9 of that Act, if I could ask your Honour to turn to exhibit AJ-3, is consistent with the position that Mr Safi states as the law, in that in Article 9 it says:

Any person born in the Afghan Territory, or born abroad from parents who are citizens of Afghanistan is a citizen of Afghanistan.

That is dealing with the case of both parents.  Article 10 then deals with the case of one parent and again, provided that the other parent consents to nationality flowing, the child is a citizen of Afghanistan. 

There is nothing in this Act that is consistent with the view that you can lose Afghanistan citizenship by claiming protection abroad, and indeed, the Act appears to contemplate that it is quite hard to lose Afghan citizenship, particularly if your Honour notes Article 24, which provides – it is in a chapter of the Act headed above Article 23, “Grant, Losing, Negate and Regaining the Citizenship of the Republic of Afghanistan”.

And it suggests that you have to apply to give up your citizenship and there is approval by a national assembly and the assent of the President.  In Article 27 it says:

If the parents renounce the citizenship of the Republic of Afghanistan, it does not affect the citizenship of the child -

In Article 30 it says that:

A citizen of Afghanistan who obtains the citizenship of another country illegally –

that fact does not affect the Afghan citizenship of the person.  That in a context where Article 7 says you cannot have dual citizenship.  So it seems to contemplate that even though the provision prohibits dual citizenship, you still will not lose your Afghan nationality if you obtain the citizenship of another place, a suggestion that is inconsistent with the idea that the mere fact of claiming protection results in the loss of nationality.

So the legal framework, in my submission, is consistently stated both by Mr Safi and by the Act that has been translated and exhibited to Mr Jefferson’s affidavit.  His affidavit makes it plain that that Act has its source in the Afghan Government providing a copy to the Australian Government to translate as part of an intergovernmental arrangement designed to help Afghanistan with its immigration and migration laws.

So, your Honour, the only area of dispute, in my submission, comes back to paragraph 12 of Mr Safi’s affidavit, which is the paragraph that your Honour took up with my learned friend.  In my submission, it is a very weak foundation indeed.  All that is said there is that:

The parents of a child born in Australia who claim to be Afghan nationals may have difficulties in obtaining citizenship –

Nothing is said about how likely it is that those difficulties arise.  Nothing is said about their nature, nothing is said about whether or not they can be overcome or what might be needed to overcome them.  And indeed, the paragraph itself seems to be inconsistent with the paragraph that follows, which says if you have a tazkara, that would be accepted as proof of your Afghan nationality.  That seems to be what Mr Safi says in paragraph 13.  As your Honour pointed out, Mr B says that he has a genuine tazkara.  If that claim is true, he should not have any difficulty convincing the Afghan Government of his citizenship status and if he can prove the citizenship status under the force of the law, the child is not stateless.  So it is submitted that while there is undoubtedly factual debate about the true nationality status of the family, it is a factual debate that does not take the question of statelessness anywhere. 

The only other sentence that gives any support to the applicant is the last sentence in paragraph 12:

The parents in such circumstances are seen to have deserted Afghan nationality by claiming persecution from the authorities.

That really seems to be the whole case in the end.  The fact that the claim of refugee status means that you lose your Afghan nationality.  What we say about that, your Honour is two things.  The first is that the basis for that claim is not disclosed in Mr Safi’s affidavit.  Mr Safi is undoubtedly a person of seniority and expertise in Afghanistan prior to 1992.  1992 was the collapse of the communist regime in Afghanistan.  Since then there has been rule in Afghanistan by the Northern Alliance and by the Taliban and now by the new government since the fall of the Taliban.

Since the Taliban took control in Afghanistan, there have been massive refugee flows out of Afghanistan, and Mr Williams’ affidavit exhibits some material that relates to the return of refugees.  Before going to the exhibits, paragraph 2 of Mr Williams’ affidavit discusses the return of refugees to Afghanistan from Australia, and he says at the end of the fourth line:

The fact that many of these individuals have applied for refugee status in Australia and have been refused, is known to the Afghan government, and this does not affect the arrangements under the MOU.  Their return is accepted.  Since the MOU was entered into at least 68 individuals have been returned to Afghanistan under these circumstances.

Then in paragraph 3 Mr Williams deals with the wider context of refugees returning to Afghanistan and refers to two briefings from the UNHCR.  I will only take your Honour to the first of those.  It is the first page of the exhibit dated 20 July 2004.  It is a document headed at the top, “Afghanistan:  pace of return remains strong”.  And in the first sentence it says:

The pace of return to Afghanistan remains strong, with thousands of refugees going back daily.  So far this year, we’ve seen some 450,000 refugees repatriate.

Then in the second paragraph, the last sentence:

Since the facilitated return programme began in early 2002, more than 2 million refugees have repatriated from Pakistan, while some 900,000 have gone back from Iran.

So the United Nations High Commission for Refugees is saying three million people who have claimed refugee status have been returned to Afghanistan since 2002.  In my submission, Mr Safi’s affidavit simply does not grapple with the reality of what has happened in Afghanistan since he left, which is that millions of refugees have fled and have then returned without difficulty. 

So, your Honour, in summary in relation to the factual aspect of the claim, this is an applicant who on any view falls within the terms of the Migration Act as an unlawful non-citizen who is required to be detained. He is in the migration zone, he does not hold a visa, he is not a citizen of Australia. The habeas corpus application is conclusively answered by sections 189 and 196 of the Migration Act unless that Act is incapable of applying to him, and that is really what is being said in this case.  The Court is being asked to find as a constitutional fact that the applicant is a stateless person not within the plain terms of the Act that require his detention.

The only basis for that at the end of the day is the claim that his parents will be regarded as having lost their Afghan nationality because they have made a claim for protection in a context where almost three million people have returned to Afghanistan, refugees, and in a context where no attempt has yet been made by the applicants, so all they have is a “may have”.  They have not said they have tried, they have not said they have been unable to gain recognition, they have not said they have been unable to obtain Afghan travel documents or identity documents.  There is no evidence that any of that has happened and failed.  Your Honour is just invited at this very early stage, on the basis of nothing more than a “may have”, to reach a factual conclusion that, in my submission, simply is not consistent with the experience of refugees returning to Afghanistan.

The final point I would note, your Honour, is that when a case of this kind comes before the Court asking your Honour not to apply an Act that on its terms applies because of a constitutional fact problem, the evidence needs to squarely raise the question because, if it is too readily accepted that the Act does not apply, it becomes a mechanism for moving into the courts the resolution of factual claims that are intended to be and are properly resolved by the specialist organs created by the Migration Act to agitate those questions.

The applicant’s father and mother in this case have been through the Refugee Review Tribunal agitating precisely the matter that they now seek to raise.  They have sought judicial review of those decisions multiple times right up to the High Court and to special leave in the High Court, and they are now seeking to run again the very same factual dispute that has been resolved against them at every prior level.  So, ultimately, it is submitted that having been claimed by Pakistan, the applicant is not a stateless person because he is a national of Pakistan.  Even if that submission is wrong, at most he is an Afghan and thus not a stateless person, as Singh applies.

Your Honour, if I might just briefly touch on the second argument, the legal argument, I will not take your Honour back to the passage in Singh that my friend went to, that is the passage in the joint judgment.  In my submission, that sentence was uttered by the joint judgment in a context where there had been some discussion about statelessness in the course of the hearing.  A search of the transcript of the argument over the two days suggests that the matter came up on a number of occasions in the context of the Court considering does alienage require a positive link to Australia or is it a negative matter of whether or not there is a link to a foreign country. 

I mentioned Justice Kirby to Your Honour last week and I think I took your Honour to one passage, but if I might just take your Honour to one other passage in his Honour’s judgment to make good my submission that Justice Kirby should be added to the joint judgment.  The passage is in Singh at paragraph [271], where Justice Kirby says:

Even if, as is theoretically possible, Australian law in combination with the nationality law of a child’s parents left a child born in Australia a stateless person, this is an incident of the intersection of the two legal systems.  It cannot limit or restrict the Australian head of legislative power, nor control its meaning.  It might be a consideration affecting the right of removal and the exercise of the powers of the minister under the Migration Act.   But it cannot impose an artificial construction on the Australian Constitution.  To hold otherwise would be to subject this country’s basic law to the chance provisions of the statute laws of other countries.

So his Honour is saying even if you fall between the stools of the national legislation in Australia and overseas and thus are stateless, nevertheless, the aliens power applies to you.  His Honour reiterates that conclusion in the last two sentences of the next paragraph, paragraph [272], explicitly basing his decision on the aliens power. 

So that passage, together with the passage in the joint judgment that my friend noted, which - really in the end his submission was that there is nothing else in the judgments that supports it.  That is true but it was not suggested in Singh’s Case that the applicant was stateless so it was not necessary for the Court to say anything further.  That suggests that the aliens power does apply to stateless persons.  That sort of tour of Singh, if you like, involves your Honour plus Justices Gummow, Heydon and Kirby expressing that view.    The same view was expressed in Al-Kateb by Chief Justice Gleeson and by Justice Callinan – if I could hand up a copy of Al-Kateb.

HIS HONOUR:   Thank you. This is 208 ALR 124. Which paragraphs?

MR DONAGHUE:   Paragraph [1] in Chief Justice Gleeson’s judgment, the first few lines, skipping the first sentence:

For present purposes, unlawful non-citizens are aliens who have entered Australia without permission, or whose permission to remain in Australia has come to an end.  In this context, alien includes a stateless person, such as the appellant.

That comment, in my submission, directly applies.  Justice Callinan’s judgment, paragraph [301], which is right at the end of the report, where his Honour has disapproved the Federal Court decision in Al Masri and then says in paragraph [301]:

The fact that the appellant is stateless does not alter the position.  A consequence of it is, self-evidently, that it will be difficult to find a country to which he can be removed, but that does not mean that attempts, or an intention to do may be regarded as abandoned.  This country has no greater obligation to receive stateless persons who cannot establish their entitlement to the status of refugee, than others who are not stateless.

So his Honour again seems to regard the position of a stateless person and an alien as equivalent.  And finally, your Honour, if I might take ‑ ‑ ‑

HIS HONOUR:   But the foundation for the decision in Al-Kateb was that the majority concluded that the laws relevantly were within power.  Did not the majority conclude that?

MR DONAGHUE:   That were within power?

HIS HONOUR:   Yes.

MR DONAGHUE:   Yes.

HIS HONOUR:   And Mr Al-Kateb was a stateless person?

MR DONAGHUE:   He was, that is precisely right.

HIS HONOUR:   So it was necessary to the conclusion reached in Al‑Kateb that the aliens power or the immigration power extended to stateless persons.

MR DONAGHUE:   That is my submission.  I would have to concede “or the immigration power” but the suggestion is - particularly Chief Justice Gleeson expressly refers to the aliens power in this context.  I should finally note your Honour’s own judgment in Al-Kateb, with whom Justice Heydon agreed, particularly paragraph [227] where your Honour starts by referring to the assumption implicit in:

“as soon as reasonably practicable” assumes that the event concerned can happen –

But, as your Honour goes on in the second sentence:

Where, as here, the person to be removed is stateless, there is no state to which Australia can look as the first and most likely receiving country.  But whether the non-citizen is stateless or has a nationality -

I will not read the whole paragraph, but your Honour is, in my submission, stating there that the Migration Act obligation is to remove a non-citizen to any country that will have that person and your Honour, in my submission, is plainly contemplating that the removal provisions can operate in respect of a stateless person in that paragraph. 

Here, even if the applicant were to be right about Afghanistan, nevertheless, Pakistan is plainly available as a removal destination.  In my

submission, both Singh and Al-Kateb are inconsistent with the legal proposition that is put, even were the factual proposition to be answered favourably to the applicant, which I submit it should not be.

HIS HONOUR:   Yes, thank you, Dr Donaghue.  Yes, Mr Quick.

MR QUICK:   Your Honour, may I preface my remarks to the submissions made in relation to Singh’s Case by this:  I have not been specifically instructed to argue this aspect of the matter but I do have a few observations to make that may well be helpful.  The first of them is this in relation to the points made by my learned friend.  As I pointed out in my earlier submissions, Singh’s Case was a case where the applicant was a national of India.  So that the comments made in paragraph [190] to which I drew attention, strictly speaking, do not fall within the ratio of Singh’s Case. 

Furthermore, there is an additional reason to doubt that what is actually said in paragraph [190] is intended to go so far as my learned friend suggests.  That arises from paragraph [200] of the judgment in Singh’s Case.  There in the joint judgment, your Honour and Justices Gummow and Heydon say this – I am reading from the middle of paragraph [200]:

The central characteristic of that status is, and always has been, owing obligations (allegiance) to a sovereign power other than the sovereign power in question (here Australia).  That definition of the status of the alienage focuses on what it is that gives a person the status:  owing obligations to another sovereign power.  It does not seek to define the status, as the plaintiff sought to submit, by pointing to what is said to take a person outside its reach.

Now, that is a statement of the positive.  A person who does not owe an obligation to another sovereign power does not fall within that concept and that passage, it seems to me, with respect, must be taken, it being a conclusion, to qualify what might more broadly be stated in paragraph [190].  That is the first point I would make.

The second point that I would make is not so much about the application of Singh’s Case.  First of all, I have distinguished it and, secondly, I have pointed out that there is another passage in it which waters down paragraph [190]’s significance.  The second point I would make is this, and again if I might say in my own defence that I was not instructed to argue this aspect of the case.  I had understood that it had been argued.  But it occurs to me, and I submit with respect, that it is one thing to be discussing the concept of an alien for the purposes of section 51 of the Constitution; it is quite another thing to be considering what is involved in section 23D of the Australian Citizenship Act.  Just because Singh’s Case decides that it was within constitutional power for the Acts in consideration

there to be passed does not mean that the same concept necessarily has to apply in relation to an Act passed in pursuance of that power.

May I draw attention then to the criticisms made of the evidence and the further evidence that is put forward by the respondent.  First of all, the affidavit and the materials in relation to the suggestion of acclaimed nationality by Pakistan, the fact that a country has claimed nationality in respect of an individual, in our submission, does not preclude for the purposes of this law the issue of whether or not that person is a national of that country.  There might be a claim made; it might have relevance for the purposes of the Convention but not for domestic law.  It simply is evidence for the purposes of domestic law.  As to that, we know nothing of the basis upon which the claim has been made.  It might have been made on erroneous evidence. 

In these situations it is very easy for facts to be confused.  In this situation it is my submission that the applicants, having deposed to their Afghan nationality, having produced in one case the Afghan identity booklet which goes with nationality according to Safi, that evidence is at least as cogent as the claiming for the purposes of the Convention of nationality by the Pakistan nation.

The final point that I wish to address is the suggestion made in the affidavit of Mr Williams about the return to Afghanistan of individuals and the repatriation of them.  What Mr Williams’ affidavit does not say, does not even address, is what happens in connection to the nationality status of people who have sought refuge claiming that they have been persecuted, one that, just because a number of people have gone back from Pakistan, does not prove that they are in the same situation as Mr and Mrs B who claim not only to be Afghans but to have been persecuted in Afghanistan.  It does not prove anything to the contrary to say that millions of other people have gone back to Pakistan until one knows that those people are also persons who are claiming to have been persecuted in Pakistan.  They might have left for health reasons, they might have left for all sorts of reasons; we just do not know.  So that the evidence that is required to support an order nisi, in our submission, is there.  It is there and it is not controverted in relevant respect.  Singh’s Case is distinguishable and, in our submission, the order ought to be made.  May it please the Court. 

HIS HONOUR:   Thank you, Mr Quick.

On 13 November 2003 an affidavit was filed exhibiting a draft order nisi seeking to call on the manager of the Baxter Immigration Detention Centre and the Secretary of the Department of Immigration and Multicultural and Indigenous Affairs to show cause why habeas corpus should not issue directed to the first respondent, that is the manager of the Baxter Immigration Detention Centre, ordering the release from detention of the applicant, an infant, who sued by his next friend, and seeking to call on the Secretary of the Department to show cause why prohibition or injunction should not issue prohibiting or restraining the Secretary, whether by himself or any officer authorised under the Migration Act 1958 (Cth), or by any other agent or officer of the Commonwealth from taking any step to detain, or to continue to detain, the applicant.

The draft order nisi gave particulars of grounds which included that the applicant had been born in Australia on 15 October 2003 to parents then held in immigration detention. The draft order nisi asserted that the applicant is not an alien, within section 51(xix) of the Constitution, that the Commonwealth Executive had no power to detain a child, other than in accordance with a valid law of the Commonwealth authorising such detention, and that the Parliament had no power to enact a law that provided for the detention of a child because, among other things, such a law is not supported by section 51(xix) or section 51(xxvii), or any other provision of the Constitution. Such detention was alleged to be punitive and inconsistent with Chapter III of the Constitution.

The application for order nisi came on before me on 19 November 2003.  Counsel then appearing for the applicant sought to have this application for order nisi referred for consideration by a Full Court and to be heard at the same time as one or other, or even both, of the proceedings ultimately determined by the Court as Singh v Commonwealth (2004) 209 ALR 355 and Re Woolley; Ex parte Applicants M276/2003 (2004) 210 ALR 369.

The application for orders, in effect, joining this application with the proceedings that ultimately gave rise to the decisions in Singh and Woolley was refused.  The only order made was to adjourn the application for order nisi to a date to be fixed, reserving liberty to either party to bring the matter on for further hearing on giving notice to the opposite party. 

The Court, having given its decisions in Singh and in Woolley, the respondents brought on this application for order nisi for further hearing.  The matter was first brought before me one week ago at which point counsel for the applicant indicated that the applicant wished further time to consider the matter and to prepare submissions in support of the grant of order nisi.  The matter was stood over for further hearing until today.

In Woolley, the Court determined that sections 189 and 196 of the Migration Act 1958, to the extent that those sections provide for the detention of children, are constitutionally valid and that those sections of the Migration Act apply to unlawful non-citizens who are children.

In Singh, the Court determined that the plaintiff, whose parents had been born in India and were both citizens of India, but who was herself born in Australia, was an alien within the meaning of section 51(xix) of the Constitution. The applicant now seeks to contend that the decision in Singh does not conclude the application which he makes because, so it is submitted, it is arguable that the applicant is stateless and it is arguable that, if stateless, sections 189 and 198 of the Migration Act, which in their terms provide for his detention, are beyond power and invalid. 

In support of the contention that it is arguable that the applicant, born in Australia, is stateless, the applicant relies upon affidavits of his parents and an affidavit of Abdul Raouf Safi, who is tendered as an expert in Afghan law.  At the risk of unduly abbreviating the detailed evidence contained in the affidavits of the parents, that evidence may be summarised as saying that each parent claims to be a citizen of Afghanistan.  That claim is controverted by the Minister and has been the subject of separate extended litigation in the Court.  The position of the respondents, as I understand it, is that at least the father is, and probably both parents are, citizens of Pakistan, not citizens of Afghanistan. 

In determining whether I should grant an order nisi of the kind which the applicants seek, it is, I think, appropriate to proceed on the basis of the material which the applicants themselves tender, putting aside for the moment the contrary contention which the proposed respondents to the proceedings would make.  That is I consider that the present application is to be determined upon the proposition that it is at least arguable that the applicant’s parents are both citizens of Afghanistan as they claim.

The evidence then tendered by the applicant of Afghan law is contained in the affidavit, as I said, of Abdul Raouf Safi who deposes to considerable expertise in Afghan law, at least up to the point of his departure from Afghanistan for India in August 1992 followed, as it was, by his arrival in Australia in November 1994.  He goes on to say that he retains an active interest in the affairs of Afghanistan in general and particularly in its laws and the legal system of that country.  His affidavit deposes to the current Constitution of Afghanistan, as approved by the Grand Assembly or Loya Jirga, of that country in January 2004. 

It is important to set out what the deponent says about the law of Afghanistan concerning the citizenship of children born outside the territory of that nation.  He deposes as follows:

It is my opinion that a child born in Australia of parents who claim to be Afghan nationals and if the Afghan Government accepts that the child’s parents are Afghan nationals, then the place of birth of the child is irrelevant. The child will be accepted as having Afghan nationality. In this respect, I refer to the Official Gazette of the Ministry of Justice for the Republic of Afghanistan, dated 19 March 1992 in which it states that a child whose mother or father is a citizen, regardless of the country of birth is itself a citizen. These principles are still applicable today. The current Constitution approved by the Grand Assembly (Loya Jirga) on January 2004 also protects this right of nationals. I refer to Article 4 section 5 of the New Constitution, enacted on 26 January 2004 which states that no member of the nation can be deprived of his citizenship of Afghanistan.

The parents of a child born in Australia who claim to be Afghan nationals may have difficulties in obtaining citizenship for their child if they are claiming protection in another country.  The parents in such circumstances are seen to have deserted Afghan nationality by claiming persecution from the authorities.

If the Afghan Government does not accept that the parents are nationals of Afghanistan and they are unable to provide proof of Afghan nationality, the child will not receive citizenship.  In order to prove Afghan nationality, a person must have a genuine Afghan Identity Card called a “tazkara”  At page seven of each “tazkara” which contains sixteen pages, it clearly stipulates that the holder of the “tazkara” is a national of Afghanistan.

The respondents filed material in answer to the application made, which, as I understand it, does not seek to controvert the essence of what is said by Mr Safi, but rather seeks to supplement it. In particular, the respondents have filed material which includes a translation of the Republic of Afghanistan’s official gazette containing the Citizenship Act of that country which, so it would be contended, is the law to which Mr Safi refers in his affidavit. It was submitted that examination of this translation of the official gazette supplemented the views which Mr Safi advanced.

For the moment it is, in my opinion, appropriate to put this latter aspect of the material to one side, despite it having been tendered without objection and despite neither side having sought to challenge, whether by cross-examination or otherwise, any of the affidavit material which was advanced by the opposite party. 

Confining attention for the moment then to Mr Safi’s evidence about the Afghan nationality law, what emerges from that material can, in my opinion, be summarised as follows.  A child, born in Australia of parents who claim to be Afghan nationals, will be accepted as having Afghan nationality if the Afghan Government accepts that the child’s parents are Afghan nationals.  Pausing there, it is of the first importance to recall that the parents of the applicant claim to be Afghan nationals and they themselves proffer no reason why the Afghan Government should not accept that they are Afghan nationals.

Indeed, the father of the applicant asserts that he holds a genuine Afghan identity card, a tazkara, which is presently retained in the custody of the Refugee Review Tribunal and if that were so, Mr Safi’s evidence would suggest that the tazkara would be accepted as proof of Afghan nationality.

The applicant lays some emphasis, however, upon the proposition contained in Mr Safi’s material that:

The parents of a child born in Australia who claim to be Afghan nationals may have difficulties in obtaining citizenship for their child if they are claiming protection in another country.  The parents, in such circumstances are seen to have deserted Afghan nationality by claiming persecution from the authorities.

Again, it is important to pay close attention to what is said by Mr Safi.  He does not say more than that the parents of a child, who claim to be Afghan nationals, may have – I emphasise “may have” – difficulties – I emphasise “difficulties” rather than impossibility – in obtaining citizenship if they are claiming protection in another country.  What Mr Safi does not say is that a claim for protection is itself sufficient to deny, or lead to loss of, continuing Afghan nationality. 

Stripped to its essentials, the material which the applicant advances demonstrates these facts.  His parents claim that they are Afghan nationals.  They say that the contrary contention, made by the Australian authorities, is wrong.  They demonstrate no basis for concluding that in those circumstances it is arguable that their child would not be accepted as an Afghan national by the Afghan Government.

Given that the Australian authorities have not accepted that the applicant’s parents are Afghan nationals, it is, perhaps, unsurprising then that the emphasis of the argument advanced on behalf of the respondents lay upon an alternative chain of argument.  As I have already noted, the Australian authorities contend, so it seems, that the applicant’s parents, or at least the father, are or is a citizen of Pakistan.

The respondent tenders evidence that the government of Pakistan, through its High Commission in Australia, claims therefore that the applicant, the infant, is a national of Pakistan.  It is, in my opinion, unnecessary to consider the significance that should be attached to that claim beyond noting that its making does not lend weight to the contentions which the applicant would make that he is stateless.

Moreover, the material advanced by the respondents to the effect that, as may be well known, there has over the years been a very considerable movement of people out of Afghanistan and now some return of those who left back to their country of origin, may lend some weight to the proposition that the applicant would not be regarded by Afghani authorities as stateless any more than any of the several hundreds of thousands, not to say millions, of people who have been the subject of these great movements of people during the upheavals in that country.  But, again, that is a matter which, in my opinion, is better left to one side. 

Even if, contrary to the view which I have formed, it were thought to be arguable that, as a matter of fact, the applicant is stateless, there would remain in his way a considerable hurdle in demonstrating that an order nisi should go. Central to the contention that he is entitled to relief by way of constitutional writ, and by other relief, is the proposition that sections 189 and 198 of the Migration Act, in their application to him, are beyond power and invalid.

So far as the operation of those sections are concerned in relation to the applicant, it would seem that their validity must turn upon the operation of section 51(xix), the power of the Parliament to make laws with respect to naturalisation and aliens. Having been born in Australia, dependence upon the powers under section 51(xxvii) concerning immigration and emigration may be thought to be attended by greater difficulty.

There the applicant must confront the difficulties, first of the Court’s decision in Al-Kateb v Godwin (2004) 208 ALR 124 and then the decision of the Court in Singh to which I have earlier referred.  Al-Kateb v Godwin concerned a stateless person who arrived in Australia without a visa and, by majority, the Court held that sections 189, 196 and 198 of the Act required that the appellant be kept in immigration detention until he was removed from Australia.

The actual decision in Al-Kateb, concerning as it did a stateless person who had arrived in Australia, tends against the proposition that the aliens power does not extend to dealing with persons who are stateless.  Indeed, as one of the dissenting members of the Court in Al-Kateb (2004) 208 ALR 124, Chief Justice Gleeson, said at 125, paragraph [1], “alien”, in the context of the Migration Act, “includes a stateless person”.  Moreover, in Singh (2004) 209 ALR 355, in the joint reasons of three members of the Court, it was said at 412, paragraph [190], that:

The word “aliens” may have had a fixed legal meaning in the seventeenth century . . . By the end of the nineteenth century the word did not bear [such a] meaning . . . But what did remain unaltered was that “aliens” included those who owed allegiance to another sovereign power, or who, having no nationality, owed no allegiance to any sovereign power.

When it is recalled that, in his separate reasons, Justice Kirby proceeded from the premise that it was not demonstrated that the plaintiff in Singh’s Case did have Indian citizenship, it is apparent that a majority of the Court concluded that the aliens power extended to dealing with a person who was stateless. Of course, as Mr Quick pointed out, at (2004) 209 ALR 355 at 414, paragraph [200], the joint reasons go on to identify “the central characteristic” of the status of alienage as being and always having been:

owing obligations (allegiance) to a sovereign power other than the sovereign power in question (here Australia). 

But that that is the central characteristic of the status of alienage does not deny the proposition which otherwise underpinned the decision of at least a majority of the Court in Singh that the aliens power in section 51(xix) extends to authorising sections 189 and 198 of the Migration Act in their operation to the infant children of unlawful non‑citizens who are born in Australia, even if the infant child, thus born, were to be shown to be a person who is stateless. 

The material to which I have referred demonstrates, in my opinion, no arguable case sufficient to warrant a grant of order nisi.  Statelessness would, in my opinion, ground no grant of the relief which the applicant seeks, given the course of decision in the Court to which I have referred.  It follows that the application for order nisi stands dismissed.

Yes, Dr Donaghue.

MR DONAGHUE:   I seek costs, your Honour.

HIS HONOUR:   Yes, can you be heard against costs, Mr Quick?

MR QUICK:   Yes, if the Court pleases.  I would ask the Court to note that the plaintiff is an infant.

HIS HONOUR:   Who sues by a next friend, I think.

MR QUICK:   That is true.  I am not sure of the practice in this Court, but not necessarily in all courts is a next friend liable for costs in the absence of an undertaking to pay costs at the time of instituting proceedings. 

HIS HONOUR:   Order 16 rule 18(1) is the start of the chain through the rules, Mr Quick, I think.

MR QUICK:   Your Honour, it does not appear that there is anything either in the rules or in the commentary in the Practice and Procedure Service in relation to that rule in particular.  In relation to the costs provision, I regret, your Honour, I have not specifically looked at this matter this morning prior to coming here.  In relation to costs, I am unaware of there being any special rule, but I should check that before your Honour relies upon what I say in that respect.

HIS HONOUR:   I may be wrong, Mr Quick, and you should correct me if I am, but my understanding of the position of a next friend was not only to have an adult who may have the carriage of the matter, but also an adult who would be responsible for the costs.  That, I regret to tell you, is based on memories of a year or two ago, is the most I will admit to, Mr Quick.

MR QUICK:   Your Honour, my understanding is that different rules apply in different jurisdictions, and in particular dependent upon the nature of the relief being sought.  If, for example, it is an action for damages, then an undertaking to pay costs is sometimes required at the time of instituting proceedings, but this is not a claim where relief is being sought of that kind.  Rather, it is a claim with a constitutional element to it and a claim in relation to liberty of the subject, rather than in relation to damages.

HIS HONOUR:   Yes, but would not costs ordinarily go on a habeas?  Leave aside the intervention of infancy.  Would not costs ordinarily be ordered on a habeas if it failed?

MR QUICK:   I would expect so.  In the case of an infant, however, someone has to stand up to protect the infant in a situation of this kind.  It may well be that ‑ ‑ ‑

HIS HONOUR:   Yes, and the proceedings can be brought by a stranger.  At least, I think that is the position.  They need not be by the person detained, they need not be by a relative.  They can be by a stranger, I think.  Perhaps I am wrong.  Yes, the importance of a habeas is not something I need to have emphasised.

MR QUICK:   Your Honour, in our submission, costs are clearly in the discretion of the Court.  This is a case where the child could not stand up for itself and argue.  Someone else had to stand in its shoes to protect the child’s interests.  The real question is whether or not it is fair in those circumstances that the person who brings forward to the Court the material for the Court to consider, to exercise jurisdiction in relation to the person, should be penalised in costs when the application has failed.  In our submission, this is not a vexatious matter.  It was a serious matter.  It required consideration by your Honour this morning for some time and stating the reasons took some time.  In those circumstances, it is our submission that it would be unfair to impose a costs order on the applicant.  If the Court pleases.

HIS HONOUR:   In my opinion, costs must follow the event.  The application will be dismissed with costs.  I will certify for the attendance of counsel in chambers.

MR QUICK:   Before your Honour leaves the Bench, could I thank your Honour for relisting the matter to suit my convenience this morning.

HIS HONOUR:   Not at all, Mr Quick.  Adjourn the Court.

AT 12.44 PM THE MATTER WAS CONCLUDED