AZC20 v Minister for Immigration, Migrant Services and Multicultural Affairs & Ors

[2022] HCATrans 196

[2022] HCATrans 196

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M27 of 2022
  No M28 of 2022

B e t w e e n -

AZC20

Applicant

and

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

COMMONWEALTH OF AUSTRALIA

Second Respondent

SECRETARY, DEPARTMENT OF HOME AFFAIRS

Third Respondent

Applications for special leave to appeal

GORDON J
EDELMAN J
GLEESON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA AND BY VIDEO CONNECTION

ON FRIDAY, 11 NOVEMBER 2022, AT 9.30 AM

Copyright in the High Court of Australia

____________________

GORDON J:   In accordance with the Court’s protocol when sitting remotely, I will announce the appearance of the parties.

MR M.L.L. ALBERT appears with MR J.R. MURPHY for the applicant.  (instructed by Human Rights Law Centre)

MR P.M. KNOWLES, SC appears with MR B. McGLADE for the respondents.  (instructed by Australian Government Solicitor)

GORDON J:   Mr Albert, I see that you need an extension of time but that is not opposed, you will have your extension.

MR ALBERT:   Thank you, your Honour.  Your Honours, I would seek to address you first on the application in respect of grounds 2 and 3.  In our submission, there are four principal reasons why special leave should be granted in respect of those grounds.  The first is that the Court is presented with an unusual situation where both the respondent and the Full Court below agree that the questions arising in respect of grounds 2 and 3 are ones of public importance.

GORDON J:   Before you take up those issues, may we just raise one matter with you.  Do we get to grounds 2 and 3 if you are right on ground 1?

MR ALBERT:   In our submission, probably no, your Honour.

GORDON J:   It might be useful, I think, then, if we start with ground 1, if that is appropriate.

MR ALBERT:   If the Court pleases.  In respect of ground 1, the concern, as your Honours would appreciate, is that the nature of the appeal that was before the Full Court was, in effect, moot.  The question that arises is as to the texture and content of section 24(1A) and, in particular, we would emphasise the long line of cases from the Federal Court to give content to that provision by reference to the substantial injustice test.  The substantial injustice test was not referred to or applied in this case and, indeed, had it been applied, it is hard to see how leave would have been given.

The error, in our submission, is in the court making use of what is a public resource, namely, the court itself, on what was, in effect, an academic appeal of an interlocutory order and by so doing converting the power that it has in respect of section 24(1A) into something that is quite unpredictable.

GLEESON J:   The Full Court seemed to suggest that the appeal was not moot because of the decision’s prospective relevance in relation to some other proceeding.

MR ALBERT:   Yes, your Honour, that seemed to be a factor in the approach.  There was a broad approach taken to there being a public interest in the matter and that was, indeed, the basis.   The difficulty that we have with it, the criticism we make of it, is that it converts the court into a body that is providing bodies, in the circumstances of the case that was before it, an advisory opinion.

EDELMAN J:   Mr Albert, if that is right, then one does not even get to issues like the scope of section 24 because if that is right by itself there is no matter, there is no matter left.

MR ALBERT:   With respect, your Honour, we would agree with that, and ‑ ‑ ‑

EDELMAN J:   Well, you would need to issue 78B notices then, would you not?

MR ALBERT:   Your Honour, I had not contemplated that, but that is probably right.  Yes.

GORDON J:   I mean, the short point, as I understand it, is this, is that, yes, two orders were made, one was in the form of what we might call the duty order directing the person to be taken to the regional processing centre and then the home detention order.  The home detention order was, in effect, suspended pending compliance with the first order, and by the time it got to the Full Court both orders had been either, in effect, gazumped – I do not know what the word is, really – by what had happened by the personal non‑compellable power under section 198AE.  Is that the thrust of it?

MR ALBERT:   Yes, your Honour.  A description that might be used was that what was called the detention arrangement order was parasitic upon the mandamus order and so, when the mandamus order, as it were, ceased to have any life, well, equally, so did the detention arrangement order.

EDELMAN J:  I mean, your submissions really come down to two points.  One is that there was either no matter or no utility in determining an appeal and alternatively, if there was a matter and there was utility in determining the appeal, there is an issue of real public importance concerning the scope to which home detention orders can be made.

MR ALBERT:   Yes, your Honour, with respect that does characterise the case and on the second point, we have unusual force because that is precisely the basis upon which our learned friend, on behalf of his client, put their case to the Full Court as the basis upon which they should hear it at all.  That was, if you like, the hook upon which they said they had a matter.

EDELMAN J:  Just two questions in relation to that.  Has section 197AB remained unamended since your proceedings before the primary judge?  And secondly, is there any idea of how many, or was there any evidence before the Full Court as to how many people are affected by these types of orders?

MR ALBERT:  Your Honour, on the first question, I understand the answer to be yes but there has been no amendment to 198AB that I am aware of.  In respect of the numbers, the evidence that was filed on behalf of the respondent in the Full Court was that there were 130 people, from memory, who were affected by the determination that section 198AD applied who were still in detention.  So that class and of course, within that class could have been up to 130 people who would then seek the detention arrangement order.

In respect of the detention arrangement order, as I recall it, the evidence was that there were, as I remember, five or six extant cases – extant applications – for such orders and, obviously enough, that has gone to zero since the Full Court’s judgment.  So, from that point on, there is nothing I can . . . . . add.

EDELMAN J:   Thank you. 

GORDON J:   Is there anything else you wish to say, Mr Albert, about the three grounds?

MR ALBERT:   Your Honours, can I, perhaps, just elaborate on two points that, on reflection, we did not do your Honours a great service on in our written submissions.  The first one is in respect of the submission made by our learned friends on the question of competence of ground 1.  In our submission, the policy of the relevant provisions upon which our learned friends rely is that one cannot come to this Court after an interlocutory decision and a final decision.  Rather, what Parliament intended was that

one waits after the interlocutory decision for the final decision and then can seek, in this case, special leave to appeal all at once which, of course, is precisely what we are doing.  In our submission, it is consistent with what your Honour Justice Edelman said in the case that our learned friends have cited.  The only other ‑ ‑ ‑

GLEESON J:   Mr Albert, do you accept that the judgment falls within the scope of 33(4B)(a)?

MR ALBERT:   I think the answer is not necessarily, but we can go further than that and say, assuming it does, we say it clearly falls within (4C).  So, in a sense, we do not need to grapple with that because whatever is the position, (4C) exemption applies to us.

The only other thing that I sought to add, without burdening your Honours too much, is to say that in our submission, not only is there no textual or contextual basis for the addition of a temporal or purposive element to the definition of immigration detention, we take it one step further and say that the language of section 196 is – in the words of the majority of this Court in AJL20 – intractable, and indeed would refer your Honours to what the majority said in particular at 49 and 50, where they specifically reject relying principally on the judgment of Justice Hayne in M47, directly reject the idea of detention being purposive.  In our submission, what the Full Court did is quite directly contradictory to the very certainty that was the focus of the attention of the majority, at least in AJL20, in focussing on the language of section 196.

Unless there was anything further, we are content to rely upon our written submissions primarily.

GORDON J:   Thank you, Mr Albert.  Mr Knowles.

MR KNOWLES:   If the Court pleases.  On the first issue, as to what has become an argument as to whether or not there was a matter, can I refer the Court to page 89 of the application book, where the Full Court, in deciding that it should deal with the substantive applications at paragraph 36, before going on to consider the wider importance of the question before it, did consider the specific dispute between the parties and how the issue still had relevance to that dispute.

There were two aspects to that.  First, in at least one related proceedings, “and possibly”, the Full Court say in the parentheses in the third line of page 89, “possibly some aspects of” one of the cases before it, the applicant was seeking mandamus, and that was mandamus in respect of a separate removal duty under section 198 of the Act.  And the issue ‑ ‑ ‑

EDELMAN J:   But, Mr Knowles, that was not a matter before the Full Court.  That was a separate proceeding that they are referring to.

MR KNOWLES:   That was a separate proceeding, but there was still, in my submission, a justiciable controversy, because ‑ ‑ ‑

EDELMAN J:   But it is not in the particular proceeding.  You do not get a justiciable controversy between parties in a particular proceeding if something in a different proceeding has been raised.

MR KNOWLES:   With respect, your Honour, the proceedings were considerably overlapped because the duty under section 198 and the duty of removal under section 198AD were mutually exclusive.  That is, one either had to be removed to a regional processing country or to a country under section 198, but there was a real interest in determining whether or not the duty under section 198AD, although by the time the Full Court considered it suspended or removed by virtue of the issue of a certificate there was still an issue as to whether and when the section 198 duty did kick in, so to speak.

GORDON J:   Mr Knowles, that issue was not before either the primary judge or the Full Court, though, was it?

MR KNOWLES:   No, that is true, your Honour.  But the issue was referred to by the Full Court because it explained the ongoing utility of determining whether or not the mandamus order should have issued.  The second point raised by the Full Court – again, I accept in separate proceedings ‑ but the utility of determining the court’s power to make an order of what we had called a residential detention order, was relevant as between the two parties, because the applicant sought very similar relief in one of the related proceedings.

So, I accept that that does not address what your Honour Justice Gordon and your Honour Justice Edelman had put to me about those issues arising in separate proceedings.  But in my submission, there was a real and justiciable controversy.

EDELMAN J:   What were the status of those separate proceedings, Mr Knowles?  Were there separate proceedings that were on appeal, or were they separate proceedings that were ongoing before a primary judge, or were they were separate proceedings that had been concluded?

MR KNOWLES:   The middle of those options, your Honour.  The second option, they were proceedings which were still ongoing and had not yet been determined by the primary judge.

GORDON J:   I think we have got to the point, Mr Knowles, where it sounds like a very interesting question.

MR KNOWLES:   Your Honour, I accept that the question of whether or not a residence – a detention order can be made is a very interesting question.

GORDON J:   But we may not get to it.  We are concerned with this first question, whether or not the Court was entitled to even go and consider these matters.

EDELMAN J:   This seems even more interesting.

MR KNOWLES:   Well, perhaps, your Honour – and I should concede one matter without conceding that it is entirely interesting, that there was a concession made in the Full Court in relation to costs by my client.  So, I do not put forward that any residual issue of costs was still in dispute between the parties because before the Full Court we conceded that the costs order below should not be disturbed and that costs should be paid by my client on appeal.  So, I am not in the position of saying that the remaining matter went only to costs.  My submission in relation to what the issue between the parties was is really an endorsement of what the Full Court say in paragraph 36.

EDELMAN J:   Mr Knowles, if special leave were granted, is there any reason why that concession would not be maintained in this Court?

MR KNOWLES:   Yes, your Honour, because in the court below we were the appellants seeking resolution of a point of wider importance.  We are not the appellants in this Court and, in the ordinary way, the appellant should, with respect, bear the costs subject to the event of the ultimate outcome.  I certainly do not have instructions to make any concession in relation to the costs of the application.  That is the distinction.  We accepted there was a wider public importance of the Full Court dealing with that in circumstances where the Minister was the appellant.

Your Honours, I appreciate that we do not get to grounds 2 and 3 unless there is ground 1.  The only other matter that I wanted to say in respect of ground 1 is that if, as it is currently argued, the argument is that the Full Court erred by failing to take into account the question of specific injustice to my client by reason of the interlocutory order, that, with respect, is not a matter worthy of special leave because the Full Court, or the legal authority in the Full Court, Décor Corporation v Dart make clear that the court’s power to grant leave to appeal in respect of an interlocutory issue is relatively unconstrained and certainly there are no rigid rules which would require any particular factor to be considered every case.  So that, with respect, or that argument as ground 1 is currently framed, is not worthy of special leave simply because they have insufficient prospects of success.

EDELMAN J:   Mr Knowles, do you accept that, in relation to ground 1, that your point about section 33(4B) would not arise if there is no matter?  In other words, if there were no matter, there could be no exercise of appellate jurisdiction to bring the issue within section 33(4B).

MR KNOWLES:   Your Honour, I do not concede that because, if one looks to the form of the appeal, and I appreciate that your Honour is going beyond questions of form, but my learned friend’s application for special leave seeks only to vary one order of the court below, and that is the grant of leave to appeal.  So, that may not address the substance of the question as to whether or not there was a justiciable controversy, but in the form that is currently propounded, the notice of appeal, in my submission, has to be captured by section 33(4B)(a), because it is an appeal only in respect of the grant of leave.

GORDON J:   So, if the appeal was – if the ground was reformulated along the lines that have been the subject of debate between both the Bench and yourself, Mr Knowles, as well as Mr Albert, and as Justice Edelman said, possibly the service of section 78B notices, then, is the answer to Justice Edelman’s question a different answer?

MR KNOWLES:   If the ground were reformulated and an order was seeking to challenge the substantive orders of the Full Court then yes, Justice Gordon, I accept that it is a different answer.

GORDON J:   Thank you very much.

MR KNOWLES:   Then it may be, in light of what has fallen and the possible reformulation of ground 1, that your Honours are less interested in hearing me in respect of grounds 2 and 3, but I do wish to make only two points.

First, my learned friend’s criticism of the Full Court’s judgment depends almost entirely upon the way in which the Full Court imposed a temporal aspect on subparagraph (a) of the definition of immigration detention, but, in my submission, that attack fails to deal with the other aspects of the Full Court’s reasoning, specifically first that detention in the form of subparagraph (a) of the definition is not concerned with the location of detention at all and yet the location of the detention is precisely what the order made by Justice Rangiah sought to control.

Second, as the Full Court said at paragraph 98, subparagraph (a) of the definition requires detention to occur whilst:

in the company of, and restrained by:

(i)an officer –

and it was difficult to see, as the Full Court explained, how the proposed detention arrangements could be considered restraint by an officer.

Thirdly, and perhaps most importantly, the question of whether or not this form of detention could possibly come within subparagraph (a), in my submission, overlooks the critical question which the Full Court did not overlook, which is whether or not the court can determine the nature and place of detention.  As the Full Court said at paragraph 93, subparagraph (a) does incorporate an aspect of “decisional freedom” on the part of an officer to choose where and the circumstances of detention.

Justice Rangiah at first instance accepted that on existing authority he could not order detention at a particular location under subparagraph (b) or subparagraph (c) of the definition, and yet the effect of his Honour’s orders were that detention was ordered at a particular location by the court, and subject only to the control of the court under subparagraph (a).  That divergence from the approach taken in relation to the remaining limbs of the definition, in my submission, ought not be one which would trouble a court, because the Full Court’s conclusion was clearly correct.

GORDON J:   Can I just ask one question about the legislation, which Justice Edelman asked Mr Albert, is it the position that the provision remains on the books?

MR KNOWLES:   Yes, your Honour, as far as I am aware, there has been no relevant amendment to any of the provisions which were in issue, and ‑ ‑ ‑

EDELMAN J:   There are significant numbers of people who are immediately affected, and there will be significant numbers of people who will be affected in the future by these provisions, and the question is one which goes directly to the scope of a court’s powers.

MR KNOWLES:   Yes, yes, and yes, your Honour.  The number of people affected by the mandamus order is, as my learned friend Mr Albert said, about 130 people who would have been subject to section 198AD had they not been made subject to the fast‑track scheme.  That is a large but confined number of people.  As to the question of residence determination orders or residence detention orders, his Honour Justice Rangiah’s orders have potentially very wide scope, and I accept that.  If the Court pleases.

GORDON J:   Anything else you wish to say, Mr Knowles, about the other grounds?

MR KNOWLES:   Only, really, to endorse what the Full Court said in respect of ground 3, and, in addition to saying that, is, if I am right in

respect of ground 2 on the merits, then it must also follow that the general power in section 23 of the Federal Court Act could not permit or extend to making an order which was inconsistent with the Migration Act.  But that is simply a submission which, I accept, goes to the merits ‑ ‑ ‑

GORDON J:   It follows, does it not, from your argument on ground 2.

MR KNOWLES:   It does, with respect.  If the Court pleases.

GORDON J:   Thank you, Mr Knowles.  Mr Albert.

MR ALBERT:   Your Honours, can I just make one brief responsive point, and that is that our learned friend’s submission in writing and today are divorced from the evidentiary context that was faced by his Honour the primary judge, and the divorce is in respect of the evidentiary alternatives that were put before his Honour.  The position that the respondents took – for their own forensic reasons – was what I think can be described as an “all or nothing” position.

It was all or nothing on 198 versus 198AD, that is to say they conceded that if 198AD applied, there was nothing stopping my client’s removal immediately, and on the question of alternatives, they ran an all or nothing case again, that there was no evidentiary material put on at all, other than that put on by us to provide to his Honour an alternative place of detention.

His Honour’s orders, in our submission, being, in that sense, misunderstood by the Full Court, because what his Honour was faced with was only one alternative, which his Honour expressly acknowledged would be the subject of some form of management and negotiation by ordering the parties to mediation and leaving liberty to apply.

That is the context in which his Honour’s order need to be understood and it presents the Court with a neat scenario, factually, in that there were no alternatives, really, being debated.

GLEESON J:   Mr Albert, would you oppose special leave being granted in relation to ground 1 only?

MR ALBERT:   Your Honours, we would seek special leave – I hear what your Honours say about it being a potentially fatal barrier and, obviously,

we share that concern.  We would seek special leave on grounds 2 and 3 because of the very public importance that engaged the Full Court in response to our learned friend saying it was publicly important.  Can I also say – directly from my client’s perspective – I am confident those would be my instructions, on the basis that my client remains detained.

The proceeding to, which reference has already been made, that was initiated in November 2021 is now foreshadowed, earlier this week, to be heard in February 2023 and he seeks exactly the same orders in that proceeding.  So, from that practical point of view, I think the answer to your Honour’s question is, yes, they would be pressed.

GORDON J:   The Court will adjourn for a moment to consider its position.

AT 9.57 AM SHORT ADJOURNMENT

UPON RESUMING AT 10.12 AM:

GORDON J:   Mr Albert, there will be a grant of leave in this matter in relation to the three grounds.  I think there is a bit of housekeeping to be done.  The Court is presently of the view that you would need to reconsider both the content and form of ground 1 and the relief that you would seek to address the way in which you have now put it on the application for special leave – which I think, on the face of it, is substantively different.

MR ALBERT:   If the Court pleases.

GORDON J:   Second, the Court is currently of the view that you should, as I understand the argument, reflect grounds 2 and 3 as really alternatives to ground 1, because I think they are alternatives, on the understanding that I think from both of you that you would not reach them if you were successful on ground 1.  That would also require, we think, you to consider 78B notices by reference to whether or not there is a matter.

Then finally, we note that there was an application – or at least a foreshadowed application for consolidation of the two matters.  We think the preference is – given who is before us – that the two matters be the subject of the same notice of appeal in the recrafted way we have outlined, but that there would be a core appeal book, combined submissions with both matters under one heading – with one being filed so that there is not a duplication.

MR ALBERT:   Yes, I understand.

GORDON J:   Does anything arise out of that, Mr Albert?

MR ALBERT:   No, thank you, your Honour.

GORDON J:   Is it likely to take any more than a day?  I would not have thought so.

MR ALBERT:   No, I was going to say a day.  I suppose the qualifier is as to whether there are any interveners – that is the unknown.

GORDON J:   I see.  Mr Knowles, do you have anything you wish to say in relation to any of those matters that I have just raised with Mr Albert?

MR KNOWLES:   Only to say that I agree with the time estimate that Mr Albert gave.

GORDON J:   Thank you very much.  As there will be a grant of leave in those terms, would you adjourn the Court, please, until 10.30 am.

AT 10.14 AM THE MATTERS WERE CONCLUDED