Applicant M38-2002 v MIMIA

[2003] HCATrans 339

[2003] HCATrans 339

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M216 of 2003

B e t w e e n -

APPLICANT M38/2002

Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

Application for expedition

HAYNE J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON MONDAY, 8 SEPTEMBER 2003, AT 9.32 AM

Copyright in the High Court of Australia

MR A.L. CAVANOUGH, QC:   If your Honour pleases, I appear on behalf of the Minister in this matter.  (instructed by Australian Government Solicitor)

HIS HONOUR:   Yes, Mr Cavanough.

MR CAVANOUGH:   Your Honour will have received a letter, I trust, from ‑ ‑ ‑

HIS HONOUR:   Yes, and I have a certificate from the Deputy Registrar, Mr Cavanough, saying that she has been informed by Maurice Blackburn Cashman, the solicitors for the applicant in the matter, that the applicant does not oppose the Minister’s application to expedite the hearing of the special leave application.  Mr Cavanough, can I just understand one aspect of it.  As I understand it, there was at one point, in relation to matters the subject of the present application for special leave, a proceeding pending in the Full Court of the Federal Court, which was thought to bear directly or indirectly upon these issues.  Is that right?

MR CAVANOUGH:   There is, if you like, a later case called NATB.  What happened there was that the individual was from Algeria, applied for refugee status, the delegate refused it, the person was in custody, escaped from custody and was missing for a year and a bit.  There was an abortive attempt to put in a RRT application by the migration agent, who had no instructions, and in the end that came to nothing, so that the person was, in effect, only dealt with at delegate level.  In January 2003, he was apprehended and has brought court proceedings alleging that he cannot be sent back to Algeria because it would be a breach of Australia’s international obligations under one or other of the conventions to do so.

That matter went to a single judge, Justice Stone, in the Federal Court.  It was decided in July this year against the applicant, her Honour following the decision in M38, the one that is the subject of the special leave application.  Then the applicant’s representatives sought leave to appeal to the Full Court.  They needed leave because it was, again, a summary determination, but, in effect, it was treated as though it had been substantive.  The court would consider whether there are any arguable grounds, but the Full Court found that there were arguable grounds, saw some basis for distinguishing the present case.  I will hand your Honour a copy of the judgment, if that is of any assistance, but ‑ ‑ ‑

HIS HONOUR:   No doubt do that, but what I am anxious to know is whether, if I expedite this, I am going to create more problems than I solve.  If I do expedite it, at the moment, Mr Cavanough, it looks as though it would be expedition to the December leave list.  I had given some thought to trying for October, but that, I think for a number of reasons, is simply not practical.  Now, if I push this one on to December, am I creating any problem in connection with NATB?

MR CAVANOUGH:   I think not, your Honour, in that, by the sound of it, December might be ideal, really, taking into account both matters.  NATB has now been fixed for hearing on an expedited basis and the date has been now recently fixed for 24 October.

HIS HONOUR:   In the Full Court?

MR CAVANOUGH:   In the Full Court.

HIS HONOUR:   Yes.

MR CAVANOUGH:   Now, each of these matters has been determined quickly by the Full Court.  Certainly M38 itself was expedited.  An order for expedition was made in NATB, and the Bench has been named, and so on.  The matter is, as I say, to be heard on 24 October.  If, in fact, there turned out to be desire on either side to appeal from the outcome in NATB, it may be possible to have both matters then the subject of the special leave application in December.

HIS HONOUR:   It occurred to me that if there were thought to be some relevant factual distinctions that it was useful to have before the Court, there might be advantage in having NATB at least available for consideration.  If, on the other hand, either or both sides were of the view that the point was not one which depended upon particular factual presentation in the pleadings, then this one can simply make its way in the ordinary way, that is, with expedition.  But knowing that there are others raising, or said to raise, similar issues to this, presently pending in the Federal Court, it occurred to me that I should perhaps have some eye to where they are up to and whether, in truth, hastening slowly is the more efficient method.  Now, do you proffer any view on behalf of the Minister about that?

MR CAVANOUGH:   May I just take one moment, your Honour?

HIS HONOUR:   Yes.

MR CAVANOUGH:   The Department’s view is that, at the end of the day, there is not really any relevant distinction between the two cases and that they are both urgent, in that the injunctions that have been issued in the Federal Court refer to one or the other, and the arguments in each case are essentially the same.

HIS HONOUR:   Yes.  All I have in mind perhaps is this, that it would be unfortunate if one of them were seen as tripping up on particular pleading quirks or procedural quirks.  I am not conscious of any, I do not see why that should happen, but experience dictates the need just for a little caution in case those problems did emerge.

MR CAVANOUGH:   Yes.  It seems from my reading of the two matters, including the recently filed summary of argument in NATB and the summary of argument in these cases, that they have now converged entirely.  If there was any distinction before, that has been – there was no express reference to the Torture Convention in M38, except in noting that it was pleaded.  One of the matters that was put in NATB was, well, you can distinguish M38 because the Torture Convention was not fully considered or considered at all, but both are now relied on in both matters.

HIS HONOUR:   Yes, I see.

MR CAVANOUGH:   The only other difference that I can see is that the Full Court in NATB observed that in M38 the argument did not fasten so much on the words “reasonably practicable” as on the absence of any reference or any particular overseas destination in the legislation, but now “reasonably practicable” is fully relied upon in both cases.  So, again, they do seem to have converged completely and, really, at the end of the day, it is going to come down to whether there is any justiciable question before any court as to whether a person is a refugee or not, that that can never be justiciable in a court as distinct from under the statutory machinery that the Act sets out, a refugee or otherwise.

HIS HONOUR:   That may be the problem, or the problem may be whether it is asserted or established that there is some limitation on the operation of the relevant provision of the Migration Act.

MR CAVANOUGH:   True, your Honour.

HIS HONOUR:   It seems as though the claim is in the nature of an assertion that the Executive does not have power, conferred by the Act, to expel the applicant in the circumstances that have arisen.

MR CAVANOUGH:   That is certainly what is asserted.

HIS HONOUR:   Yes.

MR CAVANOUGH:   And, in effect, that is exactly what is asserted in the other matter, at the end of the day.  Perhaps I have not quite captured the way the matter would be ultimately viewed, but certainly the way your Honour has put it does do so in respect of both matters.

HIS HONOUR:   Yes.  Now, if I make an order for expedition to the December leave list, first, that would be subject to any contrary order that may later be made; second, do I need to give any directions in order to have the matter ready for hearing in December?

MR CAVANOUGH:   I am told by my instructor not.

HIS HONOUR:   I am not conscious of a need to do so.  All I would say to you is – and those who represent the applicant will no doubt examine this transcript – that if it appears that a problem is emerging, I would be very grateful if the parties gave early attention to it, rather than have the problem burst on them and on the Court late in the day.  The pressure on the December sittings will be quite high and you will likely receive a very frosty response if, having been expedited, the matter is not in proper order and ready to proceed.

MR CAVANOUGH:   That is fully heard and understood, your Honour.

HIS HONOUR:   Then, subject to any contrary order of the Court or a Justice, I will order that the hearing of the application for special leave to appeal be expedited and listed for hearing in the list of cases for Friday, 12 December 2003 in Melbourne.  Although unnecessary, I would reserve liberty to apply on three days notice in writing to the opposite party.  I would make the costs of the application for expedition costs in the application for special leave.  I certify for the attendance of counsel.

I would add this, that nothing that I have done or said should be understood as in any way affecting the ordinary course of the matter in NATB.  That is a matter for the Federal Court, the Full Court of that court, to determine.  Nothing that I have said or done today should be understood as in any way fettering or affecting the way in which that court sees fit to deal with that application now pending in that court.

MR CAVANOUGH:   In that regard, can I just correct myself marginally, your Honour.  There may be one or two additional points, procedural fairness type points, in NATB that are pleaded and argued that are not included in M38.

HIS HONOUR:   Which may, in fact, make it a rather less confined set of issues than appear to be presented in this one.

MR CAVANOUGH:   Yes, that may be so, your Honour.

HIS HONOUR:   Yes.  If I make orders in those terms, is there anything you wish to add, Mr Cavanough?

MR CAVANOUGH:   Nothing further, your Honour.

HIS HONOUR:   There will be orders in those terms.  I will adjourn.

AT 9.46 AM THE MATTER WAS CONCLUDED