Applicant S201-2003, Applicant S349-2003.doc; Ex parte - Re DIMIA

[2003] HCATrans 367

[2003] HCATrans 367

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry         
  Sydney  No S201 of 2003

In the matter of -

An application for a Writ of Prohibition, an Injunction and a Declaration against SECRETARY, DEPARTMENT OF IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

Ex parte –

APPLICANT S201/2003

Applicant/Prosecutor

Office of the Registry         
  Sydney  No S349 of 2003

In the matter of -

An application for a Declaration, a Writ of Mandamus and an Injunction against SECRETARY, DEPARTMENT OF IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

Ex parte –

APPLICANT S349/2003

Applicant/Prosecutor

GUMMOW J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 12 SEPTEMBER 2003, AT 3.07 PM

Copyright in the High Court of Australia

__________________

MR R.W. KILLALEA:   May it please the Court, I appear for the applicant in both matters.  (instructed by Ian D. Graham & Associates)

MR S.B. LLOYD:   May it please the Court, I appear for the respondent in both matters.  (instructed by Australian Government Solicitor)

GUMMOW J:   Yes, Mr  Killalea.

MR KILLALEA:   If I can address your Honours first of all on S201, which is the detention issue, but indicate in a preliminary way that the applicant seeks to withdraw his application in relation to S349, save as to costs.

GUMMOW J:   What was the difference between 201 and 349?

MR KILLALEA:   In 201, the applicant says that he is currently unlawfully held.

GUMMOW J:   Yes.

MR KILLALEA:   In 349, the applicant was seeking an order of mandamus essentially, that the Minister appoint a medical specialist, because, according to the tenor of a report to be conducted by a medical specialist appointed by the Secretary, the applicant may have been entitled to a bridging visa, which would have got him out of detention.

GUMMOW J:   Which matter is now being pressed and which is not?

MR KILLALEA:   S201, the matter of detention.

GUMMOW J:   And 349 is not being pressed?

MR KILLALEA:   No.

GUMMOW J:   Yes, I can understand that.  Now, 201 is the detention point, is it not, as you have said?

MR KILLALEA:   Yes.  We still press that even though we are now informed by the Secretary that an assessment process is being put in place through, I think it is Health Services Australia.  We were informed of that two days ago I think it was.

CALLINAN J:   Is that the only point in this one, Mr Killalea?  Is it the detention point only in 201?

MR KILLALEA:   No, in 201 we say that the applicant should be released forthwith, regardless of the fact that the assessment has not been done.  Not released from immigration detention ‑ ‑ ‑

CALLINAN J:   No, but I mean it is still a detention point.  There is no other point that you want to argue ‑ ‑ ‑

MR KILLALEA:   No.

CALLINAN J:   ‑ ‑ ‑ if you do get special leave, is that right?

GUMMOW J:   He wants an order nisi

CALLINAN J:   I am sorry, yes.  That is the point, the only ground upon which you rely is the detention ground, is that right?

MR KILLALEA:   Yes.

GUMMOW J:   That turns on 196 of the Act.

MR KILLALEA:   We are not asking, your Honour, that he be released from immigration detention as defined.  We are saying it is unlawful to hold him in a detention centre, because it is within the detention centre that his conversion disorder is both caused and exacerbated, and for so long as he is held there and the longer he is held there the possibility that the blindness ‑ ‑ ‑

GUMMOW J:   Where is there some jurisdictional error or constitutional invalidity involved, in this application under 75(v)?

MR KILLALEA:   A 78B notice had been issued.  Shall I pass those to the Court?

GUMMOW J:   No, do not worry about them at the moment.  Just tell me what the point is, in terms of the legislation.

MR KILLALEA:   The point is that what is occurring now is that he is being held under a purported exercise of judicial power.

GUMMOW J:   So it is a validity question?

MR KILLALEA:   Yes.

GUMMOW J:   All right.  Now, the validity of 196, which I think has that aspect to it of alleged judicial power, is going to be before the Full Court in either or both of two sets of appeals, the first being heard on 20 September and the second on 12 and 13 November.  Our inclination at the moment is to stand over this application pending the outcome in those matters, which will engage this validity of 196.

MR KILLALEA:   Your Honour, so far as we anticipate, the question we want to ventilate before the Court today is this.  We are not saying that the Minister properly should not detain this person.  The Minister should detain this person.

GUMMOW J:   I realise that, but you are putting an argument about the validity of 196 because you say there is an exercise of judicial power by a non‑judicial officer and that cannot be permitted because if it is done allegedly pursuant to 196 by the Executive, it is not authorised by 196 to be done by the Executive, right?

MR KILLALEA:   Yes.

GUMMOW J:   Okay.

MR KILLALEA:   The applicant, with respect, does not wish to stand the matter over to 20 September because the applicant submits that he is unlawfully held.  His health is at risk.  He is now blind.

GUMMOW J:   At the moment 196 is valid, unless someone persuades a Full Court to the contrary, correct?

MR KILLALEA:   Yes, your Honour, but I submit that this Court ‑ ‑ ‑

GUMMOW J:   The business of the Court is such that this question is going to be dealt with one way or another, either later this month or early in November.

MR KILLALEA:   Yes, I hear that, your Honour, but all we are asking is that the applicant ‑ ‑ ‑

GUMMOW J:   We cannot let anybody out.

MR KILLALEA:   We are not asking for him to be out, with respect.

GUMMOW J:   We cannot act contrary to 196, unless it is invalid.

CALLINAN J:   Where we would get power – I think I understand the sort of order that you would like us to make.  You really want us to make an order that although he might be detained, he be detained under different conditions and perhaps at a different place from where he is now.

MR KILLALEA:   Yes, your Honour.

CALLINAN J:   Where is our jurisdiction to make that order while section 196 stands?

GUMMOW J:   You want a mandatory injunction of some sort really and you have to show some illegality to get that.

MR KILLALEA:   Yes.

GUMMOW J:   Where is the illegality?  That is the problem, as Justice Callinan has put to you, while 196 is there.

MR KILLALEA:   I submit that this Court, being the High Court, can address the constitutional issue, can consider the constitutional issue and grant an injunction when one looks to the balance of convenience which would allow for the applicant to be removed from his present place of detention and placed in detention elsewhere.

CALLINAN J:   Look, I would have a problem about that anyway, assuming jurisdiction.  You have not made an application for an injunction, have you?

MR KILLALEA:   The answer should be yes.

CALLINAN J:   Where do I find that?

MR KILLALEA:   The draft order nisi is at page 43, order 3.

GUMMOW J:   You will not get an order nisi, if you want an injunction.

CALLINAN J:   What page, I am sorry?

MR KILLALEA:   Page 43 of the joint application book.

CALLINAN J:   Is that an application for an interim or interlocutory injunction?  That is an application for a final order, is it not?

MR KILLALEA:   The final order really is that the writs of prohibition and the declaration with the injunction to see to it that ‑ ‑ ‑

CALLINAN J:   I will tell you why I am asking you this.  It would seem to me that factual questions may be involved.  There may have to be a trial on factual issues even for you to get an interlocutory or interim injunction.  I do not know what Mr Lloyd’s position on that is.  I do not know whether he has had notice of that.  He might want to cross‑examine your client.  He might want to put on an affidavit himself.  It does not seem to me that the nature of the application that you make today, which is in the nature of an interlocutory or interim injunction that you seek, is really spelled out by your material.  I see Mr Lloyd shaking his head.  I must say I did not expect you to be making an application for an interim order today, which might involve all sorts of factual questions.

MR KILLALEA:   Yes, I hear your Honour and ‑ ‑ ‑

CALLINAN J:   That is even assuming jurisdiction to do it, which means you would at least have to show a prima facie case ‑ to show a prima facie case of illegality and then you would have to show that on the balance of convenience – perhaps you had done that, on the balance of convenience, I do not know.

MR KILLALEA:   I would submit that we have shown both.

CALLINAN J:   But you have not really given notice of this sort of application that you now make.

GUMMOW J:   Can we ask Mr Lloyd what his client’s attitude is today.

MR LLOYD:   Yes, your Honour, certainly.  I had not understood that there was an interlocutory injunction.  What I had prepared to say was simply that we consider that the decision of the Full Court in NAMU was not clearly wrong and so this matter should be dismissed.

GUMMOW J:   Is there an appeal against that?

MR LLOYD:   No, but I think the children involved have left the country.

GUMMOW J:   Yes, but there is another matter which raises the same point, I think.

MR LLOYD:   That may well be the case, your Honour.  I should say that with the brilliance of section 91X, I am not sure if your Honours appreciated this applicant is the same person who is W26.

GUMMOW J:   We had worked that out.

MR LLOYD:   Now, that that is the case ‑ ‑ ‑

GUMMOW J:   We…..from your client’s legislation.

MR LLOYD:   Yes.  Well, I cannot say anything about that.

CALLINAN J:   What about the point that I was debating with Mr Killalea?  Did you come along prepared to argue?

MR LLOYD:   I did not understand ‑ ‑ ‑

CALLINAN J:   Is there any possibility that there may be facts in contest?

MR LLOYD:   I think so, your Honour, if it is being suggested that my client is holding his client illegally.

CALLINAN J:   There is that – I do not know what facts could bear upon that except a writ, unless there might be something about the nature of the detention centre, but what about facts in relation to the balance of convenience?

MR LLOYD:   In relation to the balance of convenience, there are two obvious issues.  The first is, in light of this Court’s decision 10 minutes ago, the applicant is now able to be removed, so he may not be in detention much longer anyway.  Secondly, the other matter, the S349 matter, my client has agreed to have a medical specialist consider whether or not he can be an eligible non‑citizen, which might, in any event, see him released.  It is not entirely clear how that will transpire now ‑ ‑ ‑

CALLINAN J:   But what is the answer?  Might there be facts in contest?

MR LLOYD:   There certainly could be.  In all honesty, I was not prepared at all for an interlocutory injunction.  If what I understand my friend is after is something in the nature of an order that my client, under section 5 of the Act, approve a place in writing to be an immigration detention facility – that is what I now understand him to be asking for.

GUMMOW J:   Section 5?

MR LLOYD:   Section 5, the definition of immigration detention, your Honours will see that there are various places that can be immigration detention.

GUMMOW J:   A “person directed by the Secretary” ‑ ‑ ‑

MR LLOYD:   I am not sure how exactly it could even be done because it still has to ‑ ‑ ‑

GUMMOW J:   I see, “in another place approved by the Minister in writing”.  There is no duty to approve a place in writing.

MR LLOYD:   Indeed, so there would be no illegality.

GUMMOW J:   There is no case of mandamus to compel that, or illegality if he does not approve it.

MR LLOYD:   Yes, your Honour Justice Callinan was asking about evidence and I cannot say that I have turned my mind to whether or not there are questions of evidence.  If I knew what the alleged illegality was, then I might know whether or not we would put on evidence.  If the alleged illegality is the effect of detention on his client, that does not clearly say to us why it is illegal.

CALLINAN J:   That would not go, I would not think, to legality or otherwise, but it might go to the balance of convenience.  In relation to an injunction, he would not get anywhere unless he could show an arguable case of illegality and then, if he shows that, he then has to show the balance of convenience favours him.  Illegality probably does not need any evidence at all.  It is a matter of legal argument, I would have thought.  So the only evidence might be in relation to balance of convenience, but I suspect you

have not come along prepared to argue the illegality point in full either, not in relation to an injunction anyway.

GUMMOW J:   Because you say you do know what it is yet.

MR LLOYD:   Indeed, and also I suppose we would ask the applicant to be much more specific as to exactly what our duty is in terms of ‑ ‑ ‑

CALLINAN J:   Could I make this suggestion.  Assume the matter were to go over until after November, then if Mr Killalea wants to make an application for an injunction or some sort of an interim order, he can make it, on proper material and on proper notice.

MR LLOYD:   Certainly.

CALLINAN J:   As he may be advised, and depending upon what is happening in relation to this assessment.  It may be that he would not need it.

MR LLOYD:   I could not object to that.  It may be that his client will not be here in November, so that might dissolve by then, and of course his client might be out of detention by virtue of the bridging visa application.

GUMMOW J:   Yes.  Well, at present, I think we are minded to – we note that 349 is not being pressed and as to S201 we are minded to stand the application over to be reformulated in the fashion you have indicated, if need be, and to be restored on seven days notice before a single Justice.  The question will then arise, also, as to whether the matter – if there really is no constitutional question, whether it might be remitted or whether it would stay here or whether it would be futile in view of the imminent removal of the applicant and so forth.

MR LLOYD:   Perhaps I should say that because I had understood it was the exact point that my friend had run in NAMU we were going to accept that it would be futile to remit it, but it now seems to be a different point, so it might not be futile.  I am not sure.

GUMMOW J:   We will just have to see what emerges, I think, Mr Lloyd.

MR LLOYD:   The only other matter, as my friend said in passing, although he is not pressing S349, he is seeking costs in it and I would like to address on that if my friend was going to push it.

GUMMOW J:   We will hear what he says, but we would not be minded to make a costs order unless we are persuaded.

MR KILLALEA:   May it please the Court.  I will address costs.  I would refer in the first instance to the affidavit of Ian Graham affirmed on 20 June 2003.

CALLINAN J:   Is that in the book, Mr Killalea?

MR KILLALEA:   Yes, I am sorry, your Honour.  I beg your pardon.

GUMMOW J:   What page?

MR KILLALEA:   Folio 48.

GUMMOW J:   Thank you.

MR KILLALEA:   Attached to Mr Graham’s affidavit and referred to at paragraph 7 is what is called an affidavit of Libby Hogarth and properly can be called a statement.  It is not in proper form in terms of the style of this Court, that is why I say that.  But what it sets out is that on 13 June this year Libby Hogarth, a registered migration agent, she sought the appointment of a medical specialist.  That is set out there at paragraph 4 of her – what is styled an affidavit of Libby Hogarth.  At paragraph 5:

The Case Officer said words to the effect of:

“We do not need any more doctors reports”

Now, what has happened is that the Secretary of the Department, if I could put it that way, has simply stood off from appointing a medical specialist to attend to this man’s clear needs.  Further correspondence – I might pass, your Honours, the bundle of documents and just take you to relevant parts of it.  My friends have a copy.

GUMMOW J:   What is all this going to show, Mr Killalea, on this costs question?

MR KILLALEA:   If I can just take your Honours to the solicitor’s correspondence at folio 3.  There is a letter there to the Australian Government Solicitor from my instructing solicitor.  It encloses copies of the correspondence that is set out there.

CALLINAN J:   What is the provision in relation to appointment of a medical officer, or a medical assessment?

MR KILLALEA:    If one is looking for a bridging visa on account of the fact that one cannot receive care for a health condition within the detention centre, then the Secretary must appoint a medical specialist to ‑ ‑ ‑

CALLINAN J:   What section?

MR KILLALEA:   It is regulation ‑ ‑ ‑

CALLINAN J:   A regulation, is it?

MR KILLALEA:   Yes.  It is 2.20(9)(c).

CALLINAN J:   At any rate, you say that is the effect of it, the Minister has to appoint a ‑ ‑ ‑

MR KILLALEA:   Yes.  If I can take your Honours to a recent judgment of the Federal Court that was in that bundle of documents.

GUMMOW J:   How is all this going to the cost question, Mr Killalea?  You took us to folio 3, which is a letter from a solicitor saying that his client withdraws the above proceedings.  “Will the Secretary pay the costs?”  Now, what response was there to that?

MR KILLALEA:   At or about that time we ‑ ‑ ‑

GUMMOW J:   No, what response was there, if any, by letter in this bundle?

MR KILLALEA:   It is not in this bundle, but I have a copy of it here today.  I sent a copy earlier.  The response is that they are now seeking to appoint a medical specialist through Health Services Australia.

GUMMOW J:   That is what I thought Mr Lloyd told us.

MR KILLALEA:   Yes, quite, but why did they not do that at an earlier date?  This man is manifestly suffering blindness.  It is getting worse.

GUMMOW J:   That is your point.

MR KILLALEA:   Yes, that is the point.

GUMMOW J:   It can be shortly stated.  All right.

MR KILLALEA:  This has gone on ‑ ‑ ‑

GUMMOW J:   Unless we are persuaded to the contrary by Mr Lloyd, we are presently minded to make no order as to costs in 349.

MR KILLALEA:   If the Court pleases.

MR LLOYD:   I do not seek to persuade you.

GUMMOW J:   Yes, very well.  And as to 201 that application is stood over to be restored on seven days written notice as the applicant may be advised.  We have indicated in the course of argument that the application certainly needs reformulation and clarification to present the other side with a clear indication of the legal and factual case which he will be required to meet.  Costs of today will be reserved.

The Court will now adjourn until 10.15 am on Monday, 29 September at Canberra.

AT 3.28 PM THE MATTERS WERE CONCLUDED