Cayzer v Minister for Immigration and Border Protection & Anor

[2015] HCATrans 297

[2015] HCATrans 297

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Hobart  No H8 of 2015

B e t w e e n -

GRAHAM RANKIN CAYZER

Applicant

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

THE COMMONWEALTH OF AUSTRALIA

Second Respondent

Application for removal

KEANE J
NETTLE J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 13 NOVEMBER 2015, AT 12.58 PM

Copyright in the High Court of Australia

MR A.G. MELICK, SC:   May it please the Court, I appear with MR R.J. BROOMHALL for the applicant.  (instructed by Tremayne Fay & Rheinberger)

MR S.B. LLOYD, SC:   I appear for the respondents.  (instructed by Australian Government Solicitor)

KEANE J:   Yes, Mr Melick.

MR MELICK:   Thank you, your Honour.  Your Honours, this is an application for removal pursuant to section 41 of the Judiciary Act.  I should take your Honour to the orders sought and the questions to be answered which have been significantly reduced.  At page 142 – and I apologise, but it is the lower numbers that appear in the application books that are the relevant ones – the orders sought are as there, except deleting order 8, or proposed order 8.  Then, in relation to the questions that appear at pages 234 and 235, 1, 2 and 3 are pursued, but numbers 4 to 13 are not.

KEANE J:   Now, what effect does that have on your application for removal?  Is it still the case that there is a question of fact or mixed fact and law as to your client’s citizenship?

MR MELICK:   There is a small lacuna in the evidence, the factual evidence, which may or may not have to be sorted out if ‑ ‑ ‑

KEANE J:   Well, if there is a lacuna in the evidence, whether it is small or whether it is not small, that is a significant obstacle to removal.

MR MELICK:   The problem being, your Honour, I do not know if we are ever going to be in a position – what we do not know is why ‑ ‑ ‑

KEANE J:   Well, the way to be in a position would be to prove it.

MR MELICK:   Well, your Honour, I do not know if we have to prove it in that I think we could show that the factual base would be a sufficient basis for this appeal.  I could probably deal with that straight away.  Obviously, if we are going to go anywhere with this appeal, we either have to distinguish Shaw and/or have the Court give leave to reconsider Sipka.

KEANE J:   They are issues that are significant and not necessarily attractive in terms of you about removal, because they could come up in the ordinary course by way of special leave.  Whether they would come up or not would depend on how the matter proceeded below, so that removal is not determinative of whether those issues come here.  It may well be that the better way for them to come here would be on special leave, should they be alive given the findings of fact that need to be made before they are alive.

MR MELICK:   We say whatever the finding of fact ‑ ‑ ‑

KEANE J:   So that even if your client is not a citizen, these issues arise?

MR MELICK:   If our client is not a citizen?

KEANE J:   Yes.

NETTLE J:   You contend that he was - that he became one when he attempted to enlist with the RAAF, do you not?

MR MELICK:   Yes, but we do not pursue that, your Honour.  We do not say he was a citizen.  We say he was a member of the Commonwealth, which has a different meaning altogether.

KEANE J:   What meaning does it have – a member of the Commonwealth?

MR MELICK:   It means he has certain rights that cannot be taken away, one of the few being the right to vote.  Of course, we rely upon Justice McHugh’s decision in Wang’s Case where at least one member of this Court, after the decision in Shaw, thought that the question of the right to remove – sorry, the ability of Commonwealth legislation to remove certain rights remained open.  We say one of those rights is the right to vote under section 41 and it does not matter what facts are determined.  We say one way or the other, pursuant to 107(1) or 107(2) of the Electoral Act 2004 (Tas), the removal of Mr Cayzer’s temporary visa has denied him the right to vote.

KEANE J:   In Tasmania or in Commonwealth elections?

MR MELICK:   In Tasmania, and once he has the right to vote in Tasmania section 41 gives him the right to vote in Commonwealth elections.  You see, at the moment he is enrolled as an elector in Tasmania.  My learned friend’s submission was that he was enrolled by mistake and it was an error because at the time he was enrolled his temporary visa had been removed.  He was in fact in detention.

KEANE J:   So there is an issue of fact or perhaps of mixed fact and law as to whether he is entitled to vote in Tasmanian elections?

MR MELICK:   Yes there is, your Honour, I would have to ‑ ‑ ‑

KEANE J:   If that is the case, then do not – should not these issues be resolved before the matter comes to this Court because until they are resolved the questions are hypothetical?

MR MELICK:   I suppose the question is, we say he has the right to vote either under one or other of the sections, of the subsections to section 107, and therefore it is unnecessary to resolve precisely which one, because the question we wish this Court to resolve would still have to be dealt with.  The Federal Court will be obliged, of course, to follow Sipka, and I do not know what approach they would take in relation to the distinction we try to draw from Shaw. 

I have to concede there is a possibility the Federal Court may be emboldened by his Honour Justice McHugh’s decision in Wang and make a determination which would then have to be referred to this Court.  That is one matter which I have to concede is maybe appropriate to have dealt with below first.  I am not so much – I am concerned that your Honour has raised it, about questions of mixed facts and law, but it does occur to me that your Honours may consider it appropriate that the Federal Court deal with the question raised by Wang’s Case as it did follow on after Shaw’s Case. 

What his Honour Justice McHugh says, if you will remember, of citizens of the Commonwealth, there are certain votes the Commonwealth Parliament cannot take away.  We say the application of one of those is the right to vote, because it was decided along different lines or on a different factual basis to Shaw’s Case.

KEANE J:   Well, we come back to the question about citizenship – which is disputed.

MR MELICK:   Sorry, I do not think the question of citizenship is disputed, your Honour.  We can see he has not been a citizen of Australia as such, but the question ‑ ‑ ‑

KEANE J:   But the proposition of Justice McHugh that you just put to us is a proposition which involves citizenship.

MR MELICK:   I would have to concede the question that still is disputed is entitlement to vote in Tasmania.  I think we are still disagreeing about that, are we not?  Yes.  We are still in dispute about that, your Honours, so, if that is the case, I would have to concede that we may well have to deal with that in the Federal Court first.

KEANE J:   Well, is there anything further you want to put to us?

MR MELICK:   No, your Honour.

KEANE J:   Mr Lloyd.

MR LLOYD:   Yes, your Honour?

KEANE J:   Is there anything you want to say to us?

MR LLOYD:   Only to say that my client will seek an order for costs in the circumstances.

KEANE J:   What would you say about that, Mr Melick?

MR MELICK:   I would make no submissions, your Honour.

KEANE J:   The application for removal is refused with costs.

Adjourn the Court until 10.15 am on Wednesday, 2 December in Canberra.

AT 1.08 PM THE MATTER WAS CONCLUDED