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

[2004] HCATrans 569

[2004] HCATrans 569

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

AT MELBOURNE ON MONDAY, 6 DECEMBER 2004, AT 9.16 AM

Copyright in the High Court of Australia

__________________

MS D.S. MORTIMER, SC:   If your Honour pleases, I appear on behalf of the applicant.  (instructed by Jeremy Moore & Associates)

MR S.P. DONAGHUE:   If the Court pleases, I appear on behalf of the respondent.  (instructed by Australian Government Solicitor)

HIS HONOUR:   Yes, Ms Mortimer, what is the position?

MS MORTIMER:   Your Honour, the position is, as I understand it, the respondent has asked for this to be called on, and I apologise to the Court that we have not been able to indicate to the respondent and to the Court what our position is, but I can do that now. 

Your Honour, the order nisi and this draft order nisi in this proceeding raises two issues.  One, if I can put it this way, goes to the question that this Court decided in Singh, the other goes to the question which this Court decided in Woolley.  As to the latter, your Honour, there are no submissions we can make that would, in my submission, be able to satisfy or persuade your Honour that there is anything to distinguish this case and the arguments it raises from Woolley.  We accept that the outcome in Woolley will determine that aspect of this application.

In relation to Singh, our submission is that the question is different, and there remains a key factual controversy to be decided that is capable of effecting a different outcome, subject to further consideration by this Court about another aspect to the meaning of “alien”.  Your Honour, unlike Singh’s Case, where it was common ground that the prosecutor was a citizen of India, there is no common ground between the parties about the nationality of this applicant. 

There is a live dispute between the Minister and Mr B, the applicant’s father, about his nationality.  Mr B says he is an Afghan national, the Minister says he is a Pakistani national, and the Minister has cancelled his visa on that basis.  As to Mrs B, my understanding is there is no factual dispute between the Minister and Mrs B and the position is that she is accepted to be a national of Afghanistan.

What remains, your Honour, is how each of those positions affects the nationality of the child born here in Australia, and, at the moment, your Honour, there is insufficient evidence for my clients to accept that the child is entitled to Afghan nationality or Pakistani nationality.  Those are, as your Honour will understand ‑ ‑ ‑

HIS HONOUR:   Why is that not a matter about which you would relevantly bear an onus?

MS MORTIMER:   It is, your Honour, but it remains a live factual issue, and, your Honour, we say there are three possibilities.  He may be entitled, that is, the applicant may be entitled, to Pakistani nationality, if the Minister is right on the facts about that and my client is wrong.  He may be entitled to Afghan nationality, depending on the laws of Afghanistan about nationality in respect of children born outside Afghanistan, and that is a matter for proof according to Afghan domestic law, or he may be stateless.

Now, if he is stateless, your Honour, in my submission, a different question may arise for determination to the one that has been decided in Singh, because Singh’s Case turned overwhelmingly and particularly in the judgments of the Chief Justice and the judgments of your Honour, Justices Gummow and Heydon on the notion that alienage concerned allegiance to a foreign power. 

Now, there is one reference, your Honour, in the joint judgment, paragraph [190], to stateless persons, and I point that out, your Honour, because it is incumbent on me to do so.  I cannot say that that issue was not adverted to at all.  It is raised in the last line of that paragraph.  With the greatest respect, your Honour ‑ ‑ ‑

HIS HONOUR:   That is at 209 ALR 355 at 412, paragraph [190].

MS MORTIMER:   If your Honour pleases.  Aside from that, your Honour, in my submission, the whole thrust of the judgments and the ratio in Singh concerns the meaning of the word “alien” being characterised by reference, in the historical analysis and the legal analysis, to the notion of allegiance to a foreign power.  So if this child is stateless, there is an argument to be had, your Honour, and that is, in my submission, as high as we need to put it for present purposes.

HIS HONOUR:   Yes, I understand what you say about that, but what is the evidentiary base on which we are presently working?  That is to say, what is there that demonstrates factually that there is an arguable case about statelessness?  Then there would arise certain questions about the relevance of that fact, I assume, as I understand your argument.  But where do we get the evidentiary base at the moment?

MS MORTIMER:   The evidentiary base, your Honour, I can only put to your Honour on the basis of the two points that are common ground that I have outlined to your Honour, that is, there is a factual dispute between the parties about the father’s nationality, that there is a common ground about the mother’s nationality ‑ ‑ ‑

HIS HONOUR:   You speak of common ground – this is an area that is always capable of producing difficulty and controversy.  Is there some agreed fact between the parties?  Is there some evidentiary base? 

MS MORTIMER:   I understand your Honour’s hesitancy ‑ ‑ ‑

HIS HONOUR:   Experience dictates that common ground may be well understood, but, when you put it down on a piece of paper in writing, what is common may fray at important aspects at the edge.  So where are we?

MS MORTIMER:   I accept that, your Honour, and I am putting that only on the basis of my instructions and no higher that that.  There has been, as your Honour would likely apprehend, a great deal of communications for a whole lot of purposes between my instructing solicitors and the Minister’s solicitors in relation to this family, and their detention, their possible removal and so forth.  I sought those instructions about what the position was about Mrs B, and those are the instructions I have.  Now, I understand if my learned friend is not in a position to put that or agree to that proposition, but if that is not the case, your Honour, then we have the nationality of both parents being undecided ‑ ‑ ‑

HIS HONOUR:   No, I do not think we do.  What is the factual base upon which you are moving, which would reveal that?  Now, that may mean only that questions of adjournment to put on further material emerge.  I understand that that may be a matter of live controversy as well, but we need, I think, to be quite precise.

MS MORTIMER:   Yes, I understand that, your Honour.  I do not think there is anything in the present – there is only one affidavit before your Honour at the moment, and I doubt that there is anything specific in there about that.

HIS HONOUR:   I am not conscious of it, but that may reflect the way in which I read the papers.

MS MORTIMER:   No, your Honour, it is the position.  So the position would have to be, in the absence of any agreement between the parties about those facts, we would need leave of this Court, including an adjournment, to put on that evidence.  That is the position, your Honour.

HIS HONOUR:   Now, what time are we looking at, and bound up in the question of time is what material?  Now, I am not looking to nail you down about what material you want to put on – I understand that those things are dependent upon how the material shapes – but what time are we looking at?

MS MORTIMER:   Your Honour, I imagine it would be, making some allowances for the time of year, a relatively short time, and I will come back to what I mean by that in a moment.  If the factual material we need to deal with is simply the factual basis for the submission that there is a dispute about the father’s nationality and what the position is about the mother’s nationality, if what we are required to do is ‑ ‑ ‑

HIS HONOUR:   No, as I understand – and, again, I do not want this to go off on a misunderstanding.  As I understand your argument, a step you are wanting to take is to demonstrate either that the applicant is or it is arguable that the applicant is stateless.

MS MORTIMER:   That is so, your Honour.

HIS HONOUR:   Now, there may be debate about which is the relevant fact, but it is one or other of those.  What is it that you would be wanting in order to demonstrate that fact or either of those facts?

MS MORTIMER:   Well, your Honour, there are two kinds of evidence.  There is obviously evidence of primary facts and there is likely to be required some expert evidence, your Honour, about the domestic laws of Afghanistan and Pakistan.  And that, as your Honour might imagine, is not evidence that could be obtained in a short period of time.  I would apprehend, particularly in relation to Mr B, since this is an extremely central issue between the parties for other reasons, that that evidence is likely to be contested by the Minister or at least that the Minister would want to answer it.

So that kind of evidence, your Honour, could not be obtained in a short period of time.  We would be talking many months, I would imagine, your Honour, because ‑ ‑ ‑

HIS HONOUR:   Well, one, this is your application.  Two, I have to know what it is you are wanting.

MS MORTIMER:   I accept that, your Honour.  I am coming here less than well prepared, and I apologise for that.

HIS HONOUR:   I am not seeking to criticise you, Ms Mortimer ‑ ‑ ‑

MS MORTIMER:   No, I understand that, but ‑ ‑ ‑

HIS HONOUR:    ‑ ‑ ‑ do not misunderstand me.

MS MORTIMER:    ‑ ‑ ‑ I accept it is unhelpful for the Court for me to be without as much information as I could have.  Your Honour, I cannot put it any more precisely than that for this reason.  I do not even know whether there is such an individual as a person who is an expert on Afghan nationality law.  I would imagine there is somewhere in the world, but it will take some time to find that person.  It may be the same case with an expert on Pakistani nationality law, and then there are likely to be some issues of disputed fact.

Your Honour, for those reasons, one course that I submit your Honour might consider appropriate is whether the matter on this issue ought to be remitted to the Federal Court.

HIS HONOUR:   Not yet, Ms Mortimer.  I have not heard what Dr Donaghue has to say.  I might occasionally pause to reflect that there are two sides in this thing, but until I know better ‑ ‑ ‑

MS MORTIMER:   I accept that, your Honour.

HIS HONOUR:    ‑ ‑ ‑ the position, unless both sides are agreed, I suspect we are premature to think in terms of remitter.

MS MORTIMER:   I accept that, your Honour.  We can certainly do some evidence about the primary facts in relation to each of the parent’s nationality, and what has and has not been accepted by Australian decision‑makers.  It may be that once the parties have some discussions – I would be hopeful, your Honour, that those would be matters of agreed fact, and that, at least, may provide the Court with some more concrete factual basis for looking at whether the argument about statelessness is a live one.  But if it is the case that we need to adduce some expert evidence to establish that statelessness is a possibility for this applicant, your Honour, I cannot say anything more precise to your Honour at the moment than that I anticipate that will take months.

HIS HONOUR:   Yes.

MS MORTIMER:   Your Honour, the only experience I have to draw on this is in relation to the litigation about the East Timorese, where a similar situation arose, and I can tell your Honour from the Bar table that that took a long time to find relevant experts and extract opinions from them.  So I would not anticipate that we would be in a position to be able to do that until some time early next year.

HIS HONOUR:   Yes.

MS MORTIMER:   Again, your Honour, it is possible that we can make some enquiries and come back with a better estimate than that.  I would be hopeful, if we were given an opportunity to talk about this matter with the Minister, that we may be able to agree at least some facts, on the basis, your Honour, that there are other proceedings where these issues are live.

So, in those circumstances, the orders that I would ask your Honour to make today is to adjourn this proceeding and perhaps it is better, with respect, to do it only for a short adjournment so that we can consider our position, talk to the Minister and see what issues remain unable to be agreed, and then come back before your Honour.

HIS HONOUR:   Yes.

MS MORTIMER:   If your Honour pleases.

HIS HONOUR:   Yes.  Yes, Dr Donaghue.

MR DONAGHUE:   Thank you, your Honour.  As your Honour would recall, this matter has been on foot since it first came before the Court in November 2003.  On that occasion, the matter was adjourned to await the decision of the Court in the two matters mentioned by my friend, Singh and Woolley.The reason that that occurred was because it was accepted at that time that the matters raised were on all fours with the issues raised in those two proceedings.  Indeed, an attempt was made to have this matter joined with the hearing of the Singh matter for that reason. 

That attempt, as your Honour will recall, was renewed before the Full Court by Mr Basten, who, in the course of making his application to intervene in Singh, said that his client, who is the applicant in this matter, had pending litigation which will be determined in one respect, at least, by the judgment of the Court in this matter.  That was the foundation of the intervention application, that Singh would be decisive of the matter that is now before the Court.

For the first time now today, a new issue is being raised, and it is submitted that this is, in effect, an amendment application to say, “Well, no, Singh does not decide the matter; there is a separate question of statelessness”.  There is no evidence before the Court, as your Honour has mentioned, to support that.  If evidence was needed and that was an issue that was alive, then there were some 13 months that would have been available to the applicant to put on the evidence needed to support that application.  So, in those circumstances, my instructions are to oppose the adjournment that has been sought.

HIS HONOUR:   If I were to stand the matter over until Monday next, what would you say?

MR DONAGHUE:   I would not oppose that, your Honour, because I would expect by then to be in a position to put forward some evidence before the Court to show that the applicant in this matter is claimed by Pakistan as a national of Pakistan.  In my submission, in the face of that evidence, it would clear that there is no arguable case that the applicant is stateless, even assuming that that is relevant, which, is my submission, it is not.

HIS HONOUR:   I am just trying to refresh my mind about Singh.  The joint reasons are reasons of three members of the Court.

MR DONAGHUE:   Yes.  Justice Kirby should be added, in my submission, your Honour.

HIS HONOUR:   Yes.  Why do you say that?

MR DONAGHUE:   Because Justice ‑ ‑ ‑

HIS HONOUR:   I do not want to argue the point out now, but I do want to understand or at least have on the table some indication of the way in which the issue might be joined, so that, when we come back next Monday, we may have a better definition of where the battleground may lie.

MR DONAGHUE:   Does your Honour have a copy of Singh on the Bench?

HIS HONOUR:   In the ALR, yes.

MR DONAGHUE:   If you go to paragraph [211] – this is in Justice Kirby’s judgment – you will see that Justice Kirby was not prepared to accept that the plaintiff was a citizen of India.

HIS HONOUR:   Yes.

MR DONAGHUE:   Nevertheless, his Honour joined with the majority of the Court in holding that the aliens power applied.  So, in my submission, your Honour, together with Justice Gummow, Justice Heydon and Justice Kirby – the obiter comments of your Honours and Justice Kirby all suggest that a person can be an alien even if stateless. 

There is a further legal matter that was touched on in argument in Singh, which is that if the applicant is in fact stateless, he would have rights under the Australian Citizenship Act to apply for citizenship, which would render the whole question of his alienage moot ‑ ‑ ‑

HIS HONOUR:   And what is that right, relevantly?

MR DONAGHUE:   In 23D of the Act.  If the Minister is satisfied that an applicant is born in Australia and stateless, they have a right to become an Australian citizen.

HIS HONOUR:   As of right?

MR DONAGHUE:   As of right, if the Minister is satisfied.

HIS HONOUR:   So subject, presumably, to reasonable satisfaction upon demonstration of statelessness, citizenship must follow?  I do not have the Act in front of me and I ‑ ‑ ‑

MR DONAGHUE:   The word used is “shall”:

(1)      The Minister shall, upon application made in accordance with the approved form for the grant of Australian citizenship to a person under this subsection and if the Minister is satisfied that the person: 

(a)      was born in Australia;
(b)      is not, and has never been, a citizen of any country; and
(c)      is not, and has never been, entitled to acquire the citizenship of foreign country; 

register that person as prescribed as an Australian citizen –

That is 23D(1).  Section 23D(1A) then says: 

Where the Minister is satisfied that a person has or had reasonable prospects, at a particular time, of acquiring the citizenship of a foreign country if the person were to apply, or to have applied, at that time for the grant of such citizenship, the person shall be taken, for the purposes of subsection (1), to be or to have been entitled to acquire the citizenship of that country at that time. 

That section, in my submission, would apply in this case, for the reason that I mentioned.  I would expect by Monday week to be able to put in evidence that the Minister ‑ ‑ ‑

HIS HONOUR:   To move away from the facts or the disputed facts of this case, one assumes, perhaps, that 23D(1A) is designed for those nationality laws which depend upon registration of children born outside the territory of the foreign power concerned ‑ ‑ ‑

MR DONAGHUE:   Quite possibly.

HIS HONOUR:   If you are capable, by registering the birth of the child concerned, to obtain the citizenship of the foreign power, it takes you outside the stateless category.

MR DONAGHUE:   Yes, that is right.  If the reason you are stateless is because you are choosing not to exercise a right that you have ‑ ‑ ‑

HIS HONOUR:   That you have, yes, I understand that. 

MR DONAGHUE:    ‑ ‑ ‑ that would be at least one case that it is directed towards.  So that fact, together with the reasons of the four members of the Court mentioned in Singh, both suggest that there are real legal difficulties underpinning the arguments sought to be advanced.  But, in my submission, we never get there, because the applicant has a burden of showing an arguable case that he is stateless, and, in my submission, he cannot discharge that burden.  We would resist any lengthy adjournment in order to enable him to attempt to do so, given the length of time that this application has been on foot.

As your Honour is aware, from the letter sent to the Registry, this is one of two matters that are still outstanding that are responsible for the fact that the Minister has not yet removed the entire family.  I should mention in that context that it may well be – this matter is a habeas application in relation to release and detention.  It is not about prohibiting removal.  There is no injunction on foot. 

HIS HONOUR:   Now, statements of that kind are apt to be misunderstood, Dr Donaghue.  What do you mean by what you have just said?  I do not want this to run off the rails. 

MR DONAGHUE:   No, certainly, your Honour, I was not – all I was suggesting was that it could not be said against the Minister in this case that the subject matter of the action stood to be destroyed in some way.

HIS HONOUR:   Right.  Am I to understand you as telling me that if I stand this over till Monday next, the subject matter of this application will not be destroyed, impeded, affected, by intervening facts?

MR DONAGHUE:   No, I am not making that submission, your Honour.  What I ‑ ‑ ‑

HIS HONOUR:   That is not what you are telling me?

MR DONAGHUE:   I am not saying anything at all about that question.  All I am saying is that ‑ ‑ ‑

HIS HONOUR:   Well, Dr Donaghue, let us not mince words.  If I adjourn this over till Monday next, are we still going to have a subject matter of this application within the country?

MR DONAGHUE:   Yes, we are.

HIS HONOUR:   Very well.  Yes, we will perhaps hear what Ms Mortimer has to say.  Ms Mortimer, if I stand this over till Monday next, (a) what do you say about that, (b) what do you say, if anything, about what directions I should give concerning the filing of further material?

MS MORTIMER:   Your Honour, we are content and we are grateful for your Honour’s indulgence.  We will attempt to adduce what material we can as soon as possible, but it is unlikely to be able to be filed before Friday, your Honour.  That would be all I could reasonably promise.  It seems that my learned friend has some material, and at the moment I am not ‑ ‑ ‑

HIS HONOUR:   Your application, Ms Mortimer, your application.

MS MORTIMER:   That is so, your Honour, but he specifically referred to something that he says will prove that my client can acquire Pakistani nationality.  Now, I am not sure if we aware of what that piece of evidence is, but it is going to assist us if we can see that first, in my submission, and then we can deal with all our evidence together.  And so my submission would be that the Minister ought to be directed to file the evidence to which my learned friend has referred, perhaps by Wednesday, and then we will respond by Friday.

HIS HONOUR:   Yes.

MS MORTIMER:   If there is any other way of doing it, your Honour, it is going to put us in a position where we may still be coming forward, unable to answer the material the Minister has filed.  Resource wise, your Honour, we are at a slight disadvantage, and since my learned friend has been so forthcoming about the existence of this evidence, it ought not to be, in my submission, too great a burden to ask the Minister to produce it.  If your Honour pleases.  

HIS HONOUR:   Yes.  Do you want to respond in any way, Dr Donaghue?

MR DONAGHUE:   Well, your Honour, the respondent stands to be disadvantaged if it does not have an opportunity itself to answer the evidence that is put forward by the applicant in support of its application, or mention the evidence in order to – that we understood and would be able to obtain in order to inform the Court as fully as possible.  In our submission, the applicant should file whatever material he seeks to rely on, and the respondent should be given an opportunity to answer it in the ordinary way.

HIS HONOUR:   Well, if that leads to the prolongation of the matter so be it, Dr Donaghue.  The matter will be stood over until 13 December 2004 at 9.30 in Melbourne.  I will reserve costs and certify for counsel.  I give no direction about the filing of material.  That will be a matter for debate at the adjourned hearing.

MS MORTIMER:   If your Honour pleases.

HIS HONOUR:   Yes, adjourn the Court.

AT 9.44 AM THE MATTER WAS ADJOURNED
UNTIL MONDAY, 13 DECEMBER, 2004