Burgess, Ex parte - Re MIMIA

[2003] HCATrans 679

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry         
  Sydney  No S306 of 2002

In the matter of -

An application for Writs of Certiorari and Prohibition against MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS OF THE COMMONWEALTH OF AUSTRALIA

Respondent

Ex parte –

BRIAN JOHN LAWRENCE BURGESS

Applicant/Prosecutor

GUMMOW J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 1 MAY 2003, AT 9.12 AM

Copyright in the High Court of Australia

MR R.F. WILKINS:   I appear for the prosecutor/applicant.  (instructed by Bruce Dennis Solicitor)

MR D.M.J. BENNETT, QC, Solicitor‑General of the Commonwealth of Australia:   If your Honour pleases, I appear for the respondent.  (instructed by Australian Government Solicitor)

HIS HONOUR:   Now, I am not sure I understand at the moment what the important issue involved here is.  Am I right in thinking that Mr Burgess was born in the United Kingdom before 1973 and arrived here before 1973?

MR BENNETT:   Yes, your Honour.

MR WILKINS:   Yes, your Honour.

MR BENNETT:   This case does not raise the difference between Justice McHugh, on the one hand, and Justices Gaudron, Callinan and Kirby, on the other.

HIS HONOUR:   Yes.

MR BENNETT:   The only two issues raised in this case are, first of all, should Patterson be overruled; if not, the prosecutor is entitled to the first two declarations he seeks.  The second issue is, is the consequence that he is entitled to return to Australia?  Our argument would be ‑ ‑ ‑

HIS HONOUR:   I think the second is the important one at the moment.  The second question is not governed by Patterson.  The second question has never been decided.

MR BENNETT:   I am sorry, your Honour.  It is a question of which – if your Honour goes to our draft case stated – does your Honour have ours?

HIS HONOUR:   Yes.  Let me tell you what I am coming to.  This gentleman is outside Australia.

MR BENNETT:   Yes, your Honour.

HIS HONOUR:   He is not an Australian citizen.

MR BENNETT:   That is so, your Honour.

HIS HONOUR:   If he were an Australian citizen, Air Caledonie 165 CLR 462 at 469 would suggest that as an Australian citizen he had a

right to enter the country without any need to obtain a licence or permission from the Executive.

MR BENNETT:   Yes, but there is no suggestion that he is an Australian citizen, as I understand it.

HIS HONOUR:   Exactly.  The question seems to be he nevertheless asserts such a right by reason of his Patterson status.

MR BENNETT:   Yes, your Honour.

HIS HONOUR:   Am I right in thinking that is the question?

MR BENNETT:   Yes, your Honour, it is.

MR WILKINS:   Yes, your Honour.

HIS HONOUR:   Yes.  Now, what travel documents does he have at the moment, Mr Wilkins?  Has he a British passport?

MR WILKINS:   No, your Honour, none at all, as I understand it.  He has applied for a form of Australian visa and recently has been rejected in the last couple of weeks.

HIS HONOUR:   Yes, but if you are right, he would not need a visa.  That is what I am trying to put to you.

MR WILKINS:   That is so, your Honour, but at the moment the Commonwealth has taken the attitude that he cannot come to Australia.

HIS HONOUR:   Yes, I understand that is their attitude.  The question is how do we test it by a proper proceeding.  Can I also say I do not think there is any point served, Mr Wilkins, in setting aside his original deportation?  I mean, it is gone.  It has been implemented.  It has been done.  He is out.  What is the point?

MR WILKINS:   It has been physically done, yes, your Honour.

HIS HONOUR:   Well, not physically.  He is not in Australia.

MR WILKINS:   He is definitely not in Australia.

HIS HONOUR:   He needs to establish some legal entitlement to get back in here, does he not?

MR WILKINS:   Certainly, he does, your Honour.

HIS HONOUR:   So I am not sure an application for prohibition in relation to an already implemented decision is going to help anyone.

MR WILKINS:   Your Honour, our case at its highest is that he was not entitled to be deported and the Commonwealth is not entitled to deport him in the first place, which means he is ‑ ‑ ‑

HIS HONOUR:   Just assume that is correct.  What follows from that?

MR WILKINS:   Well, he is notionally still here but he is actually ‑ ‑ ‑

HIS HONOUR:   No, no.  He is not here.

MR WILKINS:   He is certainly not physically here, your Honour.

HIS HONOUR:   No.

MR WILKINS:   There is absolutely no doubt about that.

HIS HONOUR:   You cannot be here in spirit.  Now, I am not expressing any view as to what the answer is but the question, it seems to me, really is do these persons who have the advantage of Re Patterson also have not only the advantages that gives in terms of expulsion but advantages in terms of entry analogous to those of citizens.

MR WILKINS:   Yes, your Honour, that is the question.

HIS HONOUR:   Now, I think that is the question.  I think at the moment I would be minded to order you to proceed by way of statement of claim seeking some declaratory relief to that effect to which Mr Bennett can demur or however he sees fit.

MR BENNETT:   My only concern with that, your Honour, is 17 June.

HIS HONOUR:   This is will not go in the list for 17 June, Mr Bennett.  The ark is full.

MR BENNETT:   If your Honour is not interested in being persuaded to that effect, then I have no opposition to your Honour’s suggestion.

HIS HONOUR:   Yes.

MR BENNETT:   We were hoping to submit that the additional argument that this would entail would be quite short.  It would solve another problem which follows from Re Patterson because there are no doubt many people in this situation.

HIS HONOUR:   Are there many people in this situation?

MR WILKINS:   There were two more cases which I thought were going to be proceeded with together with ours, your Honour.  The last time this matter was mentioned when it was mentioned before her Honour Justice Gaudron in Sydney ‑ ‑ ‑

HIS HONOUR:   Yes, I have seen that.

MR BENNETT:   The potential class is quite large, whether the actual class is as large is another question.

HIS HONOUR:   We just do not know, I think.

MR BENNETT:   No, I do not know about the actual class.  The potential class is all people from the UK who arrived before 1973 who have been deported.

HIS HONOUR:   Yes, or who have just left.

MR BENNETT:   Yes.

MR WILKINS:   Yes.

HIS HONOUR:   Gone back home, as it were.

MR BENNETT:   There is another category of cases which is certainly not going to catch up with 17 June of which there were two in Western Australia at various stages which involves people who have left for substantial periods voluntarily and whether they have lost their Patterson status by returning to the UK for 20 years, for example, in one case.

HIS HONOUR:   They had best be connected with this case, I think.

MR BENNETT:   Yes, that can be done.

HIS HONOUR:   How far advanced are they, do you know, Mr Solicitor?

MR BENNETT:   One of them is reserved by a single justice of the Federal Court.

HIS HONOUR:   Justice French, is it?

MR BENNETT:   No, your Honour, Justice Lee.

HIS HONOUR:   Right.

MR BENNETT:   And one is reserved by the Full Court on appeal from Justice French.

HIS HONOUR:   Right.

MR BENNETT:   But they are not going to catch 17 June.

HIS HONOUR:   No, they are not.  How soon could you put on a statement of claim?  You can accommodate various factual matters that are already here, but how long would it take you to formulate a statement of claim?

MR WILKINS:   Two weeks, your Honour.

HIS HONOUR:   All right.  I am reluctant to state a case when the substratum was not the right substratum.  That is what is the cause of my attitude this morning.  In other words, we are going to get into the circumstances of the rightfulness or wrongfulness of the gentleman’s removal from this country in the first place.

MR BENNETT:   Your Honour, if Re Patterson stands ‑ ‑ ‑

HIS HONOUR:   That is right.

MR BENNETT:   ‑ ‑ ‑ removal was unauthorised, although what flows from it of course is another question.

HIS HONOUR:   That is right.  What does not flow from it is some notional presence here at this moment.  I think if you are seeking declaratory relief the Commonwealth had better be joined as a party, I would think, as well as the Minister.  How long will you need to plead or demur?

MR BENNETT:   Two weeks would be sufficient, your Honour.

HIS HONOUR:   This is what I suggest, gentlemen.  Direct that:

(1)  The matter proceed by way of pleadings;

(2)  The applicant as plaintiff file a statement of claim on or before 16 May 2003 which joins the Commonwealth as an additional party and is framed to present an issue as to the entitlement of the applicant to re‑enter Australia and then remain on the same basis as if he were an Australian citizen;

(3)  The defendants file their defence or demurrer, or defence and demurrer, on or before 6 June 2003;

(4)  The matter be relisted before me at Canberra at 2.15 pm on 16 June 2003;

That is the day before, so you will be here, Mr Solicitor.

MR BENNETT:   If your Honour pleases.

HIS HONOUR:   I may not have presented it in describing the issue in paragraph (2), that may not be entirely the way you want to put it, Mr Wilkins, but you will get the drift from what has passed this morning. 

(5)  I certify for counsel; and

(6)  Costs of today be costs in the cause.

Now, you may need to plead the application on 20 February 2003.  That was made in London, was it, and the refusal?

MR WILKINS:   Yes, your Honour.

HIS HONOUR:   You may need to plead that to show that there is a contested issue, as it were.

MR BENNETT:   Yes.  Well, that is the only matter in the applicant’s version which we do not accept.

HIS HONOUR:   I see that.

MR BENNETT:   They have indicated the precise dates and ‑ ‑ ‑

HIS HONOUR:   Have you?  Excellent.  That will assist you.

MR BENNETT:   Hopefully we can agree on that.

HIS HONOUR:   Yes, excellent.  Is there anything else?  I will make those orders and I will now adjourn.

AT 9.29 AM THE MATTER WAS ADJOURNED
UNTIL MONDAY, 16 JUNE 2003