Carrascalao v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs & Anor

[2022] HCATrans 162

[2022] HCATrans 162

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S109 of 2022

B e t w e e n -

HELDER AGAPITO CARRASCALAO

Plaintiff

and

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Defendant

COMMONWEALTH OF AUSTRALIA

Second Defendant

KEANE J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA AND BY VIDEO CONNECTION

ON WEDNESDAY, 5 OCTOBER 2022, AT 9.28 AM

Copyright in the High Court of Australia

HIS HONOUR:   As the Court is sitting remotely, I will announce the appearances for the parties.

MR T.M. WOOD appears for the plaintiff.  (instructed by Legal Aid NSW)

MR P.D. HERZFELD, SC appears with MS K.N. PHAM for the defendants.  (instructed by Australian Government Solicitor)

HIS HONOUR:   I should say at the outset that I have read the amended application for a constitutional or other writ filed on 16 August 2022; the defendants’ response to the application, filed on 12 September 2022; the affidavit of Katherine Elsa Wallis Bones, filed 1 August 2022; the notice of a constitutional matter, filed 2 August 2022; the affidavit of Hervee Dupont Dejean, filed 13 September 2022; the plaintiff’s reply, filed 20 September 2022; the further affidavit of Katherine Elsa Wallis Bones, filed 20 September 2022; the plaintiffs submissions, filed 4 October 2022 and the defendants’ submissions filed 4 October 2022.  Mr Wood, I understand that you seek leave to read and file a further affidavit of Ms Bones.

MR WOOD:   Yes, I do, your Honour.  In light of your indication that your Honour has read all of that previous material that has been filed, I do seek leave to file and rely on a third affidavit of Ms Bones, filed this morning.  It contains some additional documents that were produced by the defendants and we took that step this morning in light of receiving the defendants’ submissions yesterday, which contained two documents annexed to the back of those submissions, which were produced as part of the correspondence between the plaintiff and the defendants.  The third affidavit of Ms Bones simply places those documents in their broader context.

HIS HONOUR:   Thanks, Mr Wood.  Mr Herzfeld, what is your attitude to this affidavit?

MR HERZFELD:   There is no objection.

HIS HONOUR:   Very well.  Mr Wood, you have leave to file and read the further affidavit of Katherine Elsa Wallis Bones, sworn 4 October 2022.  Mr Herzfeld, can I say just at the outset, whether the Full Court or the Court is prepared to entertain an application to reopen Al‑Kateb as was sought to be done in Plaintiff M47/2018, is not, I think, a matter that I should be pre‑empting.

MR HERZFELD:   And we have not sought for your Honour to dismiss this matter on that basis for that ‑ ‑ ‑

HIS HONOUR:   I appreciate that, but given that in order for the matter to come forward to the Full Court in order to raise that issue, there is an issue – subject to what you say, of course – as to whether the plaintiff’s removal is not likely in the foreseeable future or that there is no real prospect or likelihood of removal in the reasonably foreseeable future.

Now, I understand that you take a stand on questions of onus and say that there is no real question about that.  That is to say, about the factual basis on which the plaintiff would seek to rely on the minority view in Al‑Kateb.  Subject to what you say – and to what Mr Wood might say in response, of course – I would have difficulty, I think, in concluding that there is simply no issue raised about that factual question.  I know there are arguments about where the onus lies, and Mr Wood would say on an application for habeas the onus is on the detain and to justify the detention, and you would say that there is an onus on the plaintiff to demonstrate that he has done what he can to facilitate his removal or, indeed, perhaps even beyond that, to demonstrate the absence of a reasonable prospect of removal.

That having been said, I am currently disposed to think that there is enough in the material that is before me to say that there is a factual issue about that that does need to be resolved, and it seems to me it is a rather large factual issue.  That is the first thing I would say.  The second thing I would say, Mr Wood, is really directed to you.  That is in relation to paragraph 8 of your written submissions, where you say there may need to be:

alternative findings on each of the different possibilities, for otherwise the fact‑finding exercise may ultimately lack utility –

Well, apropos of that, yes, there may need to be a number of findings made – findings of primary fact as well as ultimate fact – but it is better, is it not, that one Federal Court judge makes those findings than that the matter comes before seven judges in the High Court and we have the matter being put before the Court on a very unsatisfactory basis and the Court being required to make findings which, as Mr Herzfeld points out, may depend on testimonial evidence and may depend on expert evidence?

I suppose, apropos of your paragraph 7, Mr Wood, there may be questions about the content of what is likely or real likelihood or prospect, but these might be ultimate factual questions – questions of ultimate fact – but they are factual questions and for your side to make a case invoking the minority view in Al‑Kateb, they do need to be resolved.  Whoever bears the onus initially, in your client’s favour – and I have to say the nature of the factual contest that is in prospect just seems to me to be one that is certainly not attractive or amenable to resolution by a Full Court and not attractive to

resolution by a single judge of this Court, given the time and the management that may be required to bring the case to a point where the questions of fact can be resolved, primary findings of fact made – possibly even findings about credibility.  These are all questions that would no doubt take time to resolve and the notion of them being resolved by a single judge of this Court is, I think, perhaps incompatible with the primary function of the judges of this Court, so far as the time that is going to be involved in that is concerned.

So those are the prefatory observations I make before inviting you to address me.  So, having said that, Mr Wood, what do you want to say?

MR WOOD:   Thank you, your Honour.  We do not object at all, particularly in light of your observations your Honour has just made to this matter being remitted to a single judge of the Federal Court.  The purpose of our submissions yesterday was really to highlight some of these matters for that court, whichever judge may ultimately sit on that court, because they will be placed in a somewhat unusual position to make findings of fact on a somewhat – I do not want to say hypothetical – prospective basis for the purpose of this Court ultimately making a ruling on the correctness of Al‑Kateb, if the matter were to return to this Court through the ordinary appellate process.  So I accept everything your Honour has just said about the appropriateness of remittal.

My primary submission today, particularly in light of hearing or reading Mr Herzfeld’s submissions of yesterday, was to resist the notion that this matter should be dismissed by your Honour.  I would embrace what your Honour has said to Mr Herzfeld about that.  Although Mr Herzfeld has not pointed out which provision he was relying on to have the matter dismissed, we understand it was the provision in rule 25.09 that:

the application does not disclose an arguable basis for the relief sought or is an abuse of the process of the Court –

and we submit that that threshold is not met for the reasons your Honour has identified and put to Mr Herzfeld.  So those are my submissions on the two matters your Honour has just raised.

HIS HONOUR:   Thanks, Mr Wood.  Mr Herzfeld, it will not have escaped your attention, I am sure, that on Mr Wood’s side they have sought to structure the case on the footing that the burden of proving the relevant question of fact is very much on your side, and they are entitled to do that.  It will also not have escaped your attention that in Plaintiff M47/2018, so far as the majority were concerned, the view that was taken as to where the

onus lay was influenced strongly by the course which the case had taken.  In that case, the plaintiff had actually assumed in the course of the litigation a number of burdens.

The parties will no doubt wrangle with questions of onus as they see fit, but so far as this Court is concerned, with the material that I have seen, how is it that you say that I should conclude that there is not an arguable basis for findings of fact that would enable Mr Wood’s client to rely on the minority view in Al‑Kateb? 

MR HERZFELD:   So let me just try to orient things.  First of all, the debate, as it has turned out, is not about referral to the Full Court.  So that is off the table.  The only question is remittal or termination of the proceeding by your Honour.  In relation to that, rule 25.09.3 would permit your Honour not only to dismiss the application if it does not disclose an arguable basis, but also to finally determine the whole or part of the application.  our Honour could do that on not an arguability basis but on the basis that the material that has been put forward factually just does not engage the question of Al‑Kateb.  So your Honour could, particularly by reference to the lack of cooperation – which I want to say something about – conclude that the material, as it is presently before the Court, simply on its merits does not allow the plaintiff to raise a question about Al‑Kateb.  So that is what I want to say something about orally.

On that topic, your Honour will have seen these things.  First of all, that the Department’s assessment, based on the plaintiff’s birth in East Timor, is that he has a right to Timor Leste citizenship, and also in relation to Portugal, that he is eligible to Portuguese citizenship based on his birth in a Portuguese territory to a Portuguese‑citizen father.  So that is the context.  In that context, these things, relevantly, have happened:  in relation to Timor Leste, on 8 September this year, the solicitors for the defendants wrote to the solicitors for the plaintiff asking if he would be willing to apply for a birth certificate from Timor Leste and the plaintiff has still not confirmed whether he would be willing to do so.

In relation to Portugal, he had previously said in 2019 that he had no intention to apply for Portuguese citizenship.  Now, it is true that, subsequently, he has changed his position a number of times, but the present position is this:  on 25 August, the solicitors for the defendants wrote to the plaintiff asking if he would be willing to apply for Portuguese citizenship and, again, the plaintiff has still not confirmed whether he would be willing to do so.

The final point that we would make orally on this topic is that in relation to both countries, on 28 September, the solicitors for the defendants wrote to the solicitors for the plaintiff asking if he would be willing to attend in‑person interviews with the consulates of both countries – and that was said to be based on past experience that that may assist in progressing the inquiries with those consulates in respect of the plaintiff’s case where there is a lack of documents – and, again, the plaintiff has not confirmed whether he would be willing to attend such an interview.  So unlike Al‑Kateb, there is no basis to conclude that the plaintiff is a stateless person.  Unlike Al‑Kateb, the plaintiff has not requested removal and, indeed, unlike Al‑Kateb, the plaintiff’s actions that I have just mentioned are apt to frustrate his removal.

That is really the end of the case, for the reasons explained in Plaintiff M47/2018, completely interpedently of any question of onus.  That coheres, as we have explained in our written submissions, with the pre‑Al‑Kateb Federal Court authorities, all of which were careful in excluding from the ambit of the implied exception to the Act that those Federal Court cases identified – all of which were careful to exclude a case where one was dealing with a person who was not cooperating with their removal.

So quite apart from any of the questions of disputed factual matters or onus that your Honour has raised, that is sufficient now for the proceeding to be dismissed.  If your Honour does not accept that and we are in the territory of other matters – although it is a bit artificial to divorce the two aspects of our opposition to this proceeding – one is nonetheless still in a position where there are plainly matters remaining to explore with both Timor Leste and Portugal, particularly in light of the outstanding matters that are presently within the plaintiff’s control.  So one could not possibly reach a conclusion that removal efforts have been exhausted.

Now, as your Honour has identified, the plaintiff is really seeking to reformulate the factual question from being whether there is a real likelihood of removal in the reasonably foreseeable future into just whether it is likely, and then to shift the onus onto us.  That is both a radical reformulation of the factual premise which underpinned Al‑Kateb and also, in our submission, on onus contrary to decisions of this Court, not just Plaintiff M47/2018 but also the approach in Plaintiff M76.

Even putting aside all of those complexities, when one looks both at the lack of cooperation and the remaining matters to explore, one just could not possibly conclude that there is a circumstance here where removal efforts have been exhausted to any standard or on any onus.  So, firstly, because of the lack of cooperation – that is an independent reason – but, secondly, when one adds that to all of the factual circumstances apart from the lack of the cooperation, this is a suitable matter to terminate at this point because there just is not prospect of those factual premises necessary to raise the minority view in Al‑Kateb being reached.  As I say, the first matter is simpler and is independent of any of the questions of onus and disputed ultimate facts that your Honour has raised with me at the outset.

HIS HONOUR:   Except in this respect, Mr Herzfeld, that in Plaintiff M47/2018, it was not simply a want of cooperation that put the applicant out of court.  It was the want of cooperation in relation to the question whether removal was likely or reasonably likely, and to the extent that the want of cooperation had a bearing on that.  To put it bluntly, the applicant for removal could not be heard to say that he, having not cooperated in relation to matters which plainly bore upon his prospects of removal, could not be heard to say that the prospects of removal were exhausted.

In this case, there is, I think, a suggestion – perhaps an ironic one – that the plaintiff, having regard to his circumstances, is unlikely to succeed in an application for Portuguese or Timor Leste citizenship so that – to the extent that it might be said that he has failed to cooperate, it does not make a difference.

MR HERZFELD:   That invites the retort which the Court put in Plaintiff M47/2018, which is what might be achieved if the plaintiff’s cooperation is unknown.  The same kind of retort or same kind of point was made in Plaintiff M47/2018.  So what might be achieved with an actual application for Portuguese citizenship?  Requested on 25 August, no response.  When I say no response, no confirmation as to whether the plaintiff was willing to apply for that.  What might be achieved with an actual application for an East Timor birth certificate?  Requested on 8 September, no confirmation.  What might be achieved with an in‑person interview with both consulates?  Again, unknowable without the plaintiff’s agreement to participate in that process.

So those steps cannot be divorced from the process of removal.  They are not entirely unrelated to it.  Further, for then exactly the reasons that your Honour has just put to me about Plaintiff M47/2018, the plaintiff really cannot be heard to say well, even if I cooperated, removal would still not be likely.  That is precisely what was said not to be permissible in Plaintiff M47/2018 and on which we rely identically in this case.

HIS HONOUR:   Thanks, Mr Herzfeld.  Yes, Mr Wood.

MR WOOD:   Thank you, your Honour.  I might just reply briefly to Mr Herzfeld’s submissions, because, in our submission, it is a somewhat selective account of events that has occurred over the last five years that my client has been in detention.  The first point Mr Herzfeld started with was the submission that my client, in the Department’s view, is either eligible

for citizenship of Portugal or is a citizen of East Timor.  He states that as a simple matter to be concluded by this Court, which is contrary to the submission that he put in writing yesterday, in which he accepted that it was a very complex issue.  That alone suggests this matter is not one which would be suitable for determination by your Honour on its face.

Mr Herzfeld then relies on three – what he calls – outstanding requests in relation to letters that have been sent by the Australian Government Solicitor to my client’s solicitor over the past six weeks, all of which occurred in the course of this litigation.  The first was a request to apply for Portuguese citizenship, which Mr Herzfeld says is substantively outstanding.  Our position in relation to application of Portuguese citizenship is clearly set out in our reply submissions.  As the Portuguese authorities have made consistently clear since at least 2019, my client cannot apply for Portuguese citizenship in the absence of an East Timorese birth certificate.

The second outstanding request in Mr Herzfeld’s submission relates to an application for an East Timorese birth certificate, which was a request made to my client very shortly before the defendants filed their response in this matter.  Presumably, that was made in light of someone realising at that point in time that there was a problem in relation to Portuguese citizenship, which I have just identified.  In response to that request, we sought documents relating to East Timor and asked a series of questions about how my client would go about making an application for an East Timorese birth certificate.  The current position in relation to that is the defendants do not know how my client goes about making an East Timorese citizenship – sorry, not citizenship – application for a birth certificate.  That is true as of today.  The most recent affidavit filed by Ms Bones sets out those circumstances.  In effect, after we filed our reply submissions, only then did the defendants write to the East Timorese authorities seeking information about how to apply for an East Timorese birth certificate, and that information is not forthcoming.

The final point is that last week, less than a week ago, the defendants wrote to my client’s solicitor and asked if he would attend in‑person interviews with the Portuguese or East Timorese authorities.  That response remains outstanding.  Again, after we received that letter, we sought further information from the defendants, which was only provided to us yesterday evening.  In my submission, there is no material over the past five years that indicates that an in‑person interview with either the East Timorese or Portuguese authorities would make any difference to the prospects of my client’s removal.  It is very clear what they require.  They require an East Timorese birth certificate.  At the present time, the party that has not taken steps to progress an application for East Timorese citizenship is in fact the defendant, which is made clear by the most recent correspondence received

from the East Timorese authorities, which asked for information about my client’s history.  That was received by the defendants last Tuesday and the defendants had not provided a response to that very simple request.

So, your Honour, all of these things are relevant, including because they relate to who bears the onus.  If Mr Herzfeld’s clients bear the onus, then each of these matters that I have just described are important to that question, including because, as I say, at the moment the most outstanding request from East Timor is one which the defendants are yet to respond to.  Mr Herzfeld accuses us of rewriting, I think, the Al‑Kateb test or minority.  We reject that submission, as we have set out in our amended application.  The formations we have put forward for the minority position in Al‑Kateb are supported by the minority judgments in Al‑Kateb and subsequent judgments that have considered that issue.

We do not accept that my client’s position is analogous to that of the plaintiff in Plaintiff M47/2018.  The position in Plaintiff M47/2018 was that nobody knew with any certainty who he was and what his identity was.  Here, the Department knows who my client is, on their material, to a hundred per cent certainty.  They have provided information both to East Timor and Portugal about my client and his history.  None of that is in doubt.  This is not a position where my client has not provided information about himself or his family that has prevented the Department from taking steps with the relevant authorities to try and remove him to one of those places.

Mr Herzfeld then goes on to say, well, your options have not been exhausted yet.  Now, in my submission, that is a gloss on the minority position in Al‑Kateb.  What the minority position in Al‑Kateb is is whether or not there is a likelihood of removal.  That does not imply that there might not be outstanding options.  It is about the prospect of those options coming to fruition.  If Mr Herzfeld’s clients bear the onus, which we say they do – the legal onus of justifying my client’s detention – then that is something that is for Mr Herzfeld’s clients to prove, not mine.  So we say that this case is just simply not at all analogous to Plaintiff M47/2018.  Those are the matters I wish to reply on, your Honour.

HIS HONOUR:   Thanks, Mr Wood.  Mr Herzfeld, I am not going to invite you to reply to the reply, but can I just have your observations, if any, in relation to Mr Wood’s last point that the relevant factual question that we need an answer to is not the options for removal exhausted but is there a likelihood of removal?

MR HERZFELD:   Well, that is the way that the plaintiff seeks to reformulate the factual premise in Al‑Kateb.  The factual premise in Al‑Kateb was that there was no real chance of removal in the reasonably

foreseeable future.  That was a finding by the trial judge and that was the factual premise upon which the case was argued.  What the plaintiff seeks to do is to introduce a different test, based on aspects of the reasons of Justice Gummow, of whether it is likely that removal will occur in the reasonably foreseeable future.  So the plaintiff’s approach to their Al‑Kateb challenge seems to be different from the factual premise, which was the premise for debate in Al‑Kateb.  So your Honour asked me if that is what we need a factual answer to.  If that is how the plaintiff chooses to structure his case, then that is the factual question which the plaintiff’s case raises.

Of course, we would not accept that that is the correct factual question, but that is the factual question which the plaintiff seeks to set up in his case.  My reference to processes being exhausted picked up on language in Plaintiff M76, which was then repeated in Plaintiff M47/2018.  It was not my gloss; it was picking up on the language of those cases.  Those cases use that language ‑ ‑ ‑

HIS HONOUR:   Mr Herzfeld, can I say, as you probably appreciate, I have some sympathy with that view.

MR HERZFELD:   I understand.

HIS HONOUR:   But for present purposes, it is, I think, necessary to accept that the Full Court may take a different view in relation to the challenge to Al‑Kateb.

MR HERZFELD:   And that is why I sought to say, your Honour, that because the plaintiff structures his factual case raising the question in the way that he seeks to raise it, then that is the factual question which, on the plaintiff’s case, needs to be answered.  None of that really engages, with respect, with the question of a lack of cooperation.  That is at an anterior point.  So, without wanting to get into a rejoinder, if we ask for the plaintiff’s consent to attend an interview or apply for citizenship, the response has not been, yes, of course, and can I have some documents, it is, show me some documents and I will decide whether to agree or not.  And that does not bespeak cooperation; it bespeaks a tactical approach.  That means that one does not get to any of these questions of likelihood or prospect.  In any event, I think I have now trespassed beyond your Honour’s question.

HIS HONOUR:   No.  Thanks, Mr Herzfeld, I appreciate it.  Ladies and gentleman, I had hoped to be able to finally determine the matter today, but I think I do need to consider the submissions that have been made on each side.  Obviously, I will come to a view on that as soon as I can, and obviously that will not be very far in the future.  So, for present purposes, I will consider the matter.

Adjourn the Court, please.

AT 10.05 AM THE MATTER WAS ADJOURNED