DBE17 (by his litigation guardian Marie Theresa Arthur)

[2019] HCATrans 215

[2019] HCATrans 215

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M124 of 2019

B e t w e e n -

DBE17 (BY HIS LITIGATION GUARDIAN MARIE THERESA ARTHUR)

Plaintiff

and

COMMONWEALTH OF AUSTRALIA

Defendant

NETTLE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 8 NOVEMBER 2019, AT 9.29 AM

Copyright in the High Court of Australia

MR B.F. QUINN, QC:   May it please the Court, I appear with my learned friend, MR M.W. GUO, for the plaintiff.  (instructed by Maurice Blackburn)

MR A.M. DINELLI:   May it please the Court, I appear for the defendant, the Commonwealth of Australia.  (instructed by Australian Government Solicitor)

HIS HONOUR:   Yes, Mr Quinn.

MR QUINN:   If your Honour pleases, could I thank the Court for the indication, as far as it went, of the issue that we need to deal with today.  It seemed, reading between the lines, that the two potential issues were, one, as to whether this Court had a choice as to which court to remit to – that is, the Federal Circuit Court or the Federal Court – and, secondly, if there was a choice, which – in the exercise of a discretion – which court ought be the preferred choice.  Was that, your Honour – if you do not mind me asking ‑ ‑ ‑

HIS HONOUR:   Indeed, it was that for which I first listed the matter, Mr Quinn.

MR QUINN:   Yes.

HIS HONOUR:   One other consideration which has occurred to me in the interim is the application of section 486B and whether that would preclude the action in any event.  We can come to that in due course, if you wish. 

MR QUINN:   If your Honour pleases.

HIS HONOUR:   My concern about the remittal was simply whether, for the purposes of section 44 of the Judiciary Act, the Federal Court as opposed to the Federal Circuit Court had jurisdiction to deal with the matter.  I assume, but I do not know, whether it is said that because of Bodruddaza similar considerations apply, is it?

MR QUINN:   I am sorry, your Honour?

HIS HONOUR:   I said I assume that the contention is that because of this Court’s decision in Bodruddaza ‑ ‑ ‑

MR QUINN:   Yes.

HIS HONOUR:   ‑ ‑ ‑ similar considerations apply to the jurisdiction of the Court for the purposes of this application.

MR QUINN:   Your Honour, yes.  It may also be the position that the Federal Circuit Court is not a court to which this matter may be remitted.  It really turns, we would submit, on whether or not we are dealing with a proceeding or a matter that relates to a migration decision.  Can I take your Honour through the reasoning process as we see it?

HIS HONOUR:   Certainly.

MR QUINN:   Can I start, your Honour, with section 476B of the Migration Act?  Your Honour, we have a small bundle of the provisions, if I could hand those ‑ ‑ ‑

HIS HONOUR:   It is okay, I have got the Act, thank you.

MR QUINN:   Thank you, your Honour. 

HIS HONOUR:   Yes.

MR QUINN:   You will see, your Honour, 476B:

Subject to subsection (3), the High Court must not remit a matter, or any part of a matter, that relates to a migration decision to any court other than the Federal Circuit Court.

Raising squarely, of course, the question of whether we are dealing here with a matter that relates to a migration decision.

That limitation on the remittal power, we submit, does not apply in the present proceeding simply because it is not a matter that relates to a migration decision or, indeed, any decision at all.  What is being challenged by the plea in our statement of claim – or the pleas in our statement of claim – is an unlawful detention.  Before I take your Honour to the pleading to elaborate upon that can I, perhaps, in more general terms – at a general level – encapsulate the claims that we advance?

HIS HONOUR:   Yes.

MR QUINN:   Of course, their claim is false imprisonment, founded solely in the law of tort.  No migration decision – and I will come to the definition of “migration decision” in a moment – but no migration decision is challenged or requires scrutiny.  No migration decision is relevant to the case, save – if I can put it this way – as a background fact or part of a milieu that feeds the factual substratum upon which the case emerges – from which the case emerges.

In simple terms, the plaintiff claims on behalf of those whom he represents.  That, firstly, he was detained by the Commonwealth for certain purposes – for present purposes we do not need to worry what those purposes were – but he was detained by the Commonwealth for certain purposes.  Secondly, his detention was only for those purposes.  Thirdly, he was detained for periods in which those purposes were not being pursued.

HIS HONOUR:   That purpose being the grant of a visa or withholding of a visa.

MR QUINN:   The purpose being for a determination of whether a visa might be granted.  That is one purpose.

HIS HONOUR:   Yes.

MR QUINN:   There are really two purposes.  That is the first purpose.  The other purpose – and, again, I will take your Honour to the pleading in a moment – the other purpose, after a certain period of time, or from a certain point of time, was to determine to take a person to an offshore processing facility after those became relevant to Australia, which is Papua New Guinea or Nauru, at the relevant time.  So, those are the two purposes. 

We are not challenging the purposes in the proceeding.  But, what we do say, in the final plank of the argument is that in those periods where those purposes were not being pursued, there was no lawful purpose for detention and, accordingly, the imprisonment must have been false.  So, if you want to frame the question in terms of what the proceeding is concerned with, or what it is in respect of, it is detention – the purposes of detention – and an inquiry, most importantly, as to when those purposes could be said to have been pursued and when they were not being pursued. 

I know that is pitched at a level of generality, your Honour, but I think it is useful just in terms of, at the outset, why we say it is not a matter that involves a migration decision.  Having said that – and, again, before I go to the pleading – can I take your Honour to the next piece of the legislative puzzle?  We have gone to 476B.  I now want to go to the definition of “migration decision”.

HIS HONOUR:   Yes. 

MR QUINN:   Your Honour will need to go to section 5 for that.  

HIS HONOUR:   Yes.

MR QUINN:   I do not know whether your Honour has the definition.

HIS HONOUR:   Yes, I do, thank you.

MR QUINN:   “Migration decision” means a privative clause decision or a purported privative clause decision or a non‑privative clause decision.  I can leave to one side for the moment the AAT Act migration decision because that is not relevant here.

HIS HONOUR:   Yes.

MR QUINN:   So, taking those – the privative clause decisions, et cetera – if we look for a definition of those, section 5 tells us that privative clause decision has the meaning given by subsection 474(2).  So, I can then take your Honour to 474.

HIS HONOUR:   Yes.

MR QUINN:   Your Honour will see in this section:

“privative clause decision” means a decision –

I will ask your Honour just to note the word “decision”:

of an administrative character –

note the term “administrative character”, the verbage that we are all familiar with from the ADJR Act and other pieces of legislation:

made, proposed to be made, or required to be made, as the case may be, under this Act or under a regulation or other instrument made under this Act –

et cetera.  We may as well just traverse the rest of that provision while we are there.  Your Honour will see, moving through to subsection (4), there is a list of provisions – decisions pursuant to which are said not to be privative clause decisions ‑ ‑ ‑

HIS HONOUR:   Yes.

MR QUINN:   ‑ ‑ ‑ and they are listed.  Then, if you go to subsection (6), you will see that:

A decision mentioned in subsection 474(4), or specified . . . in regulations made under subsection 474(5), is a non‑privative clause decision.

So, there you have those two definitions.  Of course, the purported aspect of the privative clause decision will, of course, be something that purports to be one of those two things – or the first of them.  From there, your Honour – I know I am jumping around a little bit but I want to take your Honour back to the pleading – the statement of claim. 

HIS HONOUR:   Yes.

MR QUINN:   If we commence, your Honour, with paragraph 5?

HIS HONOUR:   Yes.

MR QUINN:   This purports to be a statement of who the plaintiff brings the proceeding on behalf of under the old Chancery provision that is in the High Court Rules.  You will see between 27 August and 26 September of the relevant years, inclusive:

was in detention for more than two working days in any part or parts of Australia purportedly pursuant to s 189 of the Migration Act ‑

This is really the critical element of the group definition.  We can leave for a moment the remaining subparagraphs of the definition because what they really do is carve out certain exclusions.  But, the critical aspect – because we are talking about people who are purportedly detained pursuant to section 189 of the Migration Act.  I will come back to that provision in a moment.  Your Honour, just to confirm what I was explaining earlier in relation to the nature of the case, if your Honour then goes to paragraph 7, you will see that there is also a – if I can put it this way – a subgroup of group members represented who are the “Designated Regional Processing Cohort Group Members”.  And, at 8, a group described as the “Visa Group Members”.

HIS HONOUR:   Yes.

MR QUINN:   The substantive allegations of the plaintiff then commence at paragraph 12.  Really, that is a recitation from 12 to 19 of the chronology of events that constitute the detention and the periods in which there was no detention.  Culminating in paragraph 19:

In the premises, DBE17 was in detention at all times between –

certain dates.  So, again, in that recitation, in respect of the plaintiff and the family members, there is no question raised about validity of visas, applications of visas or anything like that.  It is simply a recitation of when detention took place.  Then we go to paragraph 21, and you will see the “Visa Group Member False Imprisonment” heading.  And you will see a statement of purpose:

The only purpose for the DBE17 detention and the detention of each Visa Group Member was to:

a.receive, investigate and determine an application for a visa permitting that person to enter and remain in Australia; or

b.determine whether to permit a valid application for a visa from that person –

(collectively, the visa purposes).

And then the crux of the case, at 22:

The [relevant] detention . . . was only lawful for the period of time for which one of the visa purposes was being pursued and carried into effect as soon as was reasonably practicable.

HIS HONOUR:   So, in effect, it is alleged that the Commonwealth went too slowly in processing the application of the visa and thus the detention became unlawful?

MR QUINN:   Precisely, your Honour.  With respect, that is the case in respect of the visa purposes.  And at 23 you will see that we have a cascading catalogue of time periods that we say may have been practicable but present, essentially, alternatives for a court based upon the facts that will be thrown up by the case.  And it is apparent from that that, of course, there is no scrutiny of the relevant visa applications or anything like that.  It really is about the time that it takes – that is taken for the Commonwealth to undertake this purpose.

HIS HONOUR:   So that means, does it, it is not a claim in relation to making a decision about a visa?

MR QUINN:   Exactly.  Precisely, your Honour.  It is a claim in relation to the period of time that a person was in detention while the visa purposes were purportedly being implemented.  But the case does not touch upon – we would not see a circumstance in which there was any scrutiny of the decision itself or the decision‑making – well, the process leading to the decision possibly, but you never have to look at the decision itself and how it was made.

HIS HONOUR:   Normally, of course, the words “in relation to” are regarded as expressing a conception of the widest possible connection but it is different here, is it?

MR QUINN:   It is different here, your Honour, because we would have to concede that the words “in relation to” have the meaning that legislature usually ascribes to those words.  They are broad words.  But they are broad words in relation to a particular subject matter, that being a migration decision.

HIS HONOUR:   Yes.

MR QUINN:   Here there is reference to a migration decision – that is, the granting of visas or processes et cetera ‑ but those are the factual fence posts around which the allegations in the case are constructed.  They simply denote time periods.  So when a visa application is determined, that time period, that time which is determined will of course be a fact in the case.  But it is simply there so that you can measure the time at which detention without that purpose occurred.  So it is the period of detention which is the relevant subject matter.  The case does not relate to, is not in relation to the visa application itself, therefore the decision in respect of it.

Your Honour, the other strand of the case commences at paragraph 25 and really it is the same analysis.  You will see that in respect of ‑ ‑ ‑

HIS HONOUR:   It is exactly the same again except it was for removal rather than visa.

MR QUINN:   Exactly, your Honour.  And there is a question there whether there is any decision involved at all that you could even scrutinise, but we are just looking at the removal process.  So that is the way the case is put and pleaded.  If you then go to section 189 of the Migration Act, your Honour will recall that this is really the critical element of the group definition:

If an officer knows or reasonably suspects that a person in the migration zone (other than an excised offshore place) is an unlawful non‑citizen, the officer must detain the person.

Not “must consider”, not “must make any decision about it”.  This is an operational provision.  It tells the officer what needs to be done and it is a detention.  Well, we would submit that there is no decision related to migration or otherwise involved in the exercise of the power under section ‑ or the purported exercise of the power under section 189 any more than there would be a decision of an administrative character made by a police officer in seeing a felon on the street and making the arrest.

HIS HONOUR:   Of course, detention under 189 can only be for a migration purpose, delineated in 196, may it not?

MR QUINN:   That is right, your Honour, and that is really the crux of our case, of course, that there is a certain purpose for the detention.  There needs to be a purpose and it needs to be carried out in a certain amount of time.  But that does not convert the fact of detention itself or the detention into a decision and nor does it necessarily convert it into something that relates to or is in relation to a decision in respect of migration.  If you have an officer, presumably in a boat, one can imagine a decision to be made and there is a detention takes place.  And any decision‑making happens down the track afterwards the officer making the detention need know nothing about that or even turn their mind to it.  And their action does not relate to the decision which is ultimately made.

Now, that is really the analysis in respect of whether or not this is a matter that relates to a migration decision.  I do not know whether there is much more that I can say about the analysis.  The submission is simply that there is no migration decision within the meaning of the provisions to which the proceeding could possibly relate.  The pleading itself confirms that.

HIS HONOUR:   Do you seek any support in the decision of this Court in Bodruddaza?

MR QUINN:   In respect of this element?

HIS HONOUR:   In respect of the breadth of the conception “in relation to”.

MR QUINN:   Your Honour, I would have to concede I had not considered the case in respect of that element.

HIS HONOUR:   I see; if we adopt 476A(1), as it used to be, and held that in that section the words “in relation to a migration decision” were confined to judicial review proceedings and not to proceedings such as, for an example, an action for damages in tort which collaterally attacked a migration decision, as it was said.

MR QUINN:   Your Honour, I am embarrassed that I was not aware of that aspect of the decision and I am grateful that your Honour has raised it with me.  Accepting what your Honour has said about it, of course, I would have to rely upon that.

HIS HONOUR:   Right.  Very well, thank you.  So that is it for “in relation to”?

MR QUINN:   That is it for “in relation to” and really, your Honour, we would submit that points, clearly, away from the Federal Circuit Court.  We cannot see any other source of jurisdiction the Federal Circuit Court would have for the case.  There does not seem to be another statutory basis for its jurisdiction.

HIS HONOUR:   The Federal Circuit Court would have or would not have jurisdiction?

MR QUINN:   We think it would not.  If there is not a case in relation to a migration decision, we do not think the Federal Circuit Court would have jurisdiction, but your Honour does not have to determine that finally.  It is really a question of whether or not there is a choice to be made and our submission is that choices between – if there is a choice, the Federal Court is one that your Honour can choose, which would take us to the second question of whether it is the appropriate choice.

HIS HONOUR:   I suppose if it were a claim in relation to a migration decision, then the Federal Circuit Court would have jurisdiction.

MR QUINN:   Yes, it would, and that is clear from section 476 itself, your Honour.  I do not know whether your Honour has that there.

HIS HONOUR:   Yes, I do; thank you.

MR QUINN:   Section 476(1) says:

Subject to this section, the Federal Circuit Court has the same original jurisdiction in relation to migration decisions as the High Court has under paragraph 75(v) of the Constitution.

Specifically, of course, in relation to migration decisions.

HIS HONOUR:   Thank you.  Can I ask you, then, about section 486B?

MR QUINN:   Your Honour can, but I will have to have a look at it.  I was not – if your Honour will bear with me while I read the provision.

HIS HONOUR:   Certainly.

MR QUINN:   Your Honour, the submission would be a similar one to the one we have just advanced.  It would be that the case is pleaded and does not raise an issue in connection with visas.  Again ‑ ‑ ‑

HIS HONOUR:   “In connection with” seems to be used in contradistinction to “in relation to” and thus to suggest a wider ambit of connection than “in relation to”.

MR QUINN:   I must say, your Honour, I would have cast “in connection with” possibly as a narrow ambit, but it does seem to be – it is different language, but we would say that it is not broader than “in relation to”.

HIS HONOUR:   I mean, your claim is essentially that you, the Commonwealth, detained me whilst you were deciding whether to grant me a visa and you went too slowly in doing so.  Is that not a claim in connection with visas?

MR QUINN:   We submit not, your Honour.  We would submit that is a claim in connection with the time that it might take and the process that might lead ultimately to a visa but it is not in connection with the visa itself.  It is not in connection with the decision to grant the visa.  So we would draw a fairly confined line around the term “visa”, regardless of the ambit of the phrase “in connection with”.  The visa being referred to there is the visa itself that has been granted, not one that might be granted in the future or not one that is just contemplated.  This case is not in connection with visas, we submit.

HIS HONOUR:   I take it you do not know of any authority on the point.

MR QUINN:   No, your Honour, I must concede I had not looked at 486B immediately before your Honour mentioned it to me, apart from some time ago.  My learned junior ‑ not wanting to hang my learned junior on this ‑ thinks that her Honour Justice Mortimer in this case, in the decision below, is probably the only reference to the provision that we are aware of.

HIS HONOUR:   Yes, her Honour mentions it but makes no decision about it, which rather alerted me to the possibility of the application of it.

MR QUINN:   With respect, that is unfortunate, your Honour, but it is what it is.  In the absence of authority your Honour is, of course, going to have to take a view in respect of the language as it connects with the case as pleaded.  I do not know whether I can express our position any more attractively.

HIS HONOUR:   I mean, if you are right, there is no problem.  If you are wrong, then I suppose the proceeding is incompetent.

MR QUINN:   As it stands.

HIS HONOUR:   As it stands.

MR QUINN:   Your Honour, no application has been made in respect of that.  Of course, we are asking your Honour to remit the matter, so it may be that it is not a matter that your Honour needs to consider at all.

HIS HONOUR:   Maybe.

MR QUINN:   The application before your Honour is purely for remittal and presently, at least, there is no application in respect of its dissolution in this Court.

HIS HONOUR:   Except that it applies also to this Court.  As you can see, “all proceedings . . . in the High Court” – it would be incompetent in this Court if you are wrong about the ambit of “in connection with”.

MR QUINN:   Yes.  Your Honour, I wonder, whilst in fairly short compass I have done what I can in respect of “in connection with”, whether your Honour would give me the indulgence of some time to consider and perhaps provide a note to the Court in respect of this, because I had not considered its precise application.

HIS HONOUR:   All right, let us see what Mr Dinelli says about it and we will take it from there.

MR QUINN:   Thank you, your Honour.

HIS HONOUR:   Thank you very much, Mr Quinn.  Mr Dinelli.  Can we start with “in relation to” please?

MR DINELLI:   Thank you, your Honour.  Your Honour, as to the phrase, “in relation to”, your Honour is – may I say with respect – right to point to Bodruddaza v Minister – does your Honour have a copy of that case?

HIS HONOUR:   Yes, I do, thank you.

MR DINELLI: It is at – for the transcript – (2007) 228 CLR 651.

HIS HONOUR:   Yes.

MR DINELLI:   As your Honour pointed out, that case concerned section 486A which contained the words – and I will take your Honour, if I may, to paragraph 21, on page 662 of the judgment of the Chief Justice, Justices Gummow, Kirby, Hayne, Heydon and Crennan.

HIS HONOUR:   Yes. 

MR DINELLI:   There, the Solicitor‑General’s submission is recorded that:

the phrase in s 468A(1) “a remedy . . . in relation to a migration decision” was sufficiently broad to encompass more than applications for judicial review –

HIS HONOUR:   Yes.

MR DINELLI:  

He submitted that, for example, unless the plaintiff complied with s 486A, an action in tort would not lie in the original jurisdiction of this Court against the Commonwealth for false imprisonment where an officer had detained the plaintiff as an unlawful non‑citizen without the knowledge or reasonable suspicion stipulated by s 189 of the Act.

Their Honours then go on to identify in the next paragraph, paragraph 22, that:

the plaintiff advanced cogent reasons why the phrase . . . should not be given a reading which would take s 486A beyond public law remedies and into the area of what might be called collateral attack upon migration decisions.

Then, your Honour, there are two arguments considered in support of that, the outcome of which is that the Court in that case rejected the Solicitor‑General’s submission as to the broader reach of section 486A.  It follows, in my submission, your Honour, that “in relation to” does not go beyond public law remedies and I join with my learned friend in saying that this is not a case that is in relation to a migration decision for the reasons that he has articulated.

HIS HONOUR:   I gather that the Federal Court has more than once now applied Bodruddaza to 476B?

MR DINELLI:   Yes, your Honour.  And indeed, your Honour, this brings me to an issue I will come to in a moment.  There are cases where matters have been remitted by this Court and that ought give your Honour some comfort that it is appropriate in these circumstances.

HIS HONOUR:   Thank you.

MR DINELLI:   Your Honour, in relation to the first of the issues, that being the case, then your Honour can put to one side sections 476, 476A and 476B of the Migration Act.  And this is a simple, if I may say, application of section 44(2A) of the Judiciary Act, permitting a remitter by this Court to the Federal Court.  And insofar as that is concerned, there is no dispute between my learned friend’s client and mine, at least on this issue, and that is that the Commonwealth consents to the remitter to the Federal Court and that occurs by way of section 44(2A).  With your Honour’s permission, I might now move to section 486B issue.

HIS HONOUR:   Yes, please, Mr Dinelli.

MR DINELLI:   Your Honour, insofar as that is concerned, as the words of the section suggest, it is a slightly different wording – that is, it refers to raising an issue “in connection with”, which is in contradistinction to “in relation to”.  Of course, the different wording is accepted, your Honour.  Its significance is a matter that need not detain you today, your Honour, for this reason.  The section 486B question can, if it be a question that need be determined, be determined on any remittal, unlike that which I have considered to which I have already referred – that is the section 476B issue, which would preclude your Honour’s remittal of the proceeding.

HIS HONOUR:   Yes.

MR DINELLI:   Insofar as ‑ and I do not say that there is any problem with the proceeding in this regard, but this being a slightly different wording and the fact that we do not point to any authority which suggests the same reading of “in connection with” or “in relation to”, your Honour ought not be concerned by the remittal of this matter, and insofar as 486B may or may not have any application, it is a matter that can and indeed ought be dealt with on the remittal.

HIS HONOUR:   I take your point about jurisdiction being different to this.  My concern is that if this is a proceeding which raises an issue in connection with visa, deportation, detention within the meaning of 486B(1) it is per force of subsection (4), a proceeding which is not permitted to be brought in this Court.

MR DINELLI:   Yes, your Honour, and indeed ‑ ‑ ‑

HIS HONOUR:   Which means that if that is the case, it probably should not have got past the Registrar or would not if there was an authority about it.

MR DINELLI:   There is a live question, your Honour, in that regard.  What I put to your Honour primarily is simply that, as my learned friend did, the different wording is accepted but it makes no material difference.  But in any case, your Honour, despite your Honour’s point that it may be that if that be the position that the proceeding should not even be brought in this Court, another way of dealing with it, your Honour, rather than your Honour determining it, is to remit the matter, as your Honour is empowered to do, and then insofar as either of the parties or the Court of its own motion in the Federal Court wishes to consider section 486B, then it ought be considered at that point, your Honour.

HIS HONOUR:   I do not know, Mr Dinelli.  I am not too sanguine about remitting something to a lower court which is not permitted to be brought in this Court.  I rather suspect that the better course is for me to decide the point now and make orders on that basis.  Mr Quinn obviously needs some more time to consider it.  Do you?

MR DINELLI:   Yes, your Honour.  I would seek that if that be the course that your Honour is minded to take, that there be a timetable and that there be some short submissions to assist the Court, if your Honour wishes to make that decision before any remittal.

HIS HONOUR:   Very well.  I think I probably should at least hear argument on it, Mr Dinelli, before I decide one way or the other.  It is just a little troubling to be dealing with a provision which says it is not permitted and to be making orders as if it were permitted. 

MR DINELLI:   Thank you, your Honour.

HIS HONOUR:   How quickly could we get to this?  I am in Canberra next week for sittings, but back again in Melbourne the following week.  So that is to say I would be back in Melbourne in the week beginning Monday, 18 November.  Are either or both of you gentlemen available in that week?

MR DINELLI:   Excuse me, your Honour.

HIS HONOUR:   Certainly.  Why do we not make it the 22nd, the Friday, which is today fortnight?

MR DINELLI:   Yes, your Honour.  Yes, your Honour, thank you for that indication.

HIS HONOUR:   What about some short submissions?  Do you want to put those in in advance?  It would be helpful for me if you can.

MR DINELLI:   By next Friday, your Honour?  It might be that there is some utility in there being a staged process whereby ‑ ‑ ‑

HIS HONOUR:   What if the plaintiff puts in his submissions by the 15th, which is next Friday?  And could the Commonwealth – could that come back by, say, Wednesday, the 13th?  All right, I will direct ‑ ‑ ‑

MR DINELLI:   Your Honour, sorry.  I think in terms of the dates, it may be ‑ ‑ ‑

HIS HONOUR:   I beg your pardon, Wednesday, the 20th.

MR DINELLI:   Yes, thank you, your Honour.

HIS HONOUR:   Wishful thinking, Mr Dinelli.  I will direct that the plaintiff file some short submissions as to the correct construction of section 476B of the Migration Act by 3.00 pm on Friday, 15 November 2019 and that the respondent file brief submissions in response by 3.00 pm on Wednesday, 20 November 2019.

MR DINELLI:   Thank you.  Your Honour was referring to 486B ‑ ‑ ‑

HIS HONOUR:   I beg your pardon.

MR DINELLI:   No, not at all, your Honour.

HIS HONOUR:   486B, yes, I think.

MR DINELLI:   Thank you.  Your Honour, if I may be permitted to raise one further matter in relation to a provision which has not arisen ‑ ‑ ‑

HIS HONOUR:   Yes.

MR DINELLI:   ‑ ‑ ‑ in the course of this morning, that is section 494AA of the Migration Act.

HIS HONOUR:   Yes.

MR DINELLI:   Your Honour, I am obliged to bring that section to your Honour’s attention because if your Honour were to remit the matter, an issue that was identified by Justice Mortimer and that arises on the language of 494AA is this, your Honour.  It provides that:

The following proceedings against the Commonwealth –

of which this may be one:

may not be instituted or continued in any court ‑

HIS HONOUR:   They dealt with that in Bodruddaza, did they not?  That is to say, having decided that there was jurisdiction in the Federal Circuit Court in that case they held that the comparable provision did not preclude them remitting to the Federal Circuit Court.

MR DINELLI:   Your Honour finds support for that approach in Plaintiff S156/2013 v Minister.

HIS HONOUR:   Yes, absolutely right.  Thank you.

MR DINELLI: Your Honour, that is at (2014) 254 CLR 28 at paragraph 20. That is extracted, and your Honour will have seen that in Justice Mortimer reasons at paragraph 131. I will not take your Honour to it but I just raise the point, your Honour, because there at paragraph 20 – and this was, of course, a migration decision – but:

This Court may remit any part of a matter that is pending in the Court to any federal court that has jurisdiction with respect to the matter.

If I may skip over what is said then about 476B for the purpose of this argument.  If one then goes to the very last two lines on page 41, this is so notwithstanding the terms of section 494AA(1)(c) which provides that certain proceedings relating to what are described as UMAs:

may not be instituted or continued in any court –

Section 494AA(3) makes plain that the provision does not:

affect the jurisdiction of the High Court under section 75 of the Constitution.

Then there is reference to section – I think I might have said subsection (c) previously, but section 494AA(1)(e) should not therefore be construed as limiting this Court’s ability to remit matters to the Federal Circuit Court, by parity of reasoning, your Honour.  Although there is no detailed discussion of it, the use of the word “continued” in 494AA(1)(c) should not be construed as limiting this Court’s ability if your Honour were otherwise satisfied but I do feel that that ought be raised for your Honour’s consideration.

HIS HONOUR:   There is no reason to doubt, is there, that the same reasoning would apply in this case?

MR DINELLI:   No, your Honour.  Indeed, if I may ‑ it was raised by Justice Mortimer as a potential issue and an alternative construction was put

by my learned friend’s client before Justice Mortimer.  The simple answer seems to be, your Honour, that on a remittal pursuant to section 44(2)(a) the Federal Court stands – and this is in the language of Justice Mason in McCauley v Hamilton Island Enterprises – the Federal Court stands in what are described as “the jurisdictional shoes of this Court”, so there is no issue, your Honour.  But it is necessary just to bring that issue to your Honour’s attention, which your Honour will himself, of course, consider in reading the decision of Justice Mortimer.

HIS HONOUR:   Thank you, Mr Dinelli.

Well, on the basis of those directions as to the filing of submissions regarding 486B, I will adjourn the further hearing of this matter until 9.30 today fortnight.

MR DINELLI:   Thank you, your Honour.

MR QUINN:   If your Honour please.

HIS HONOUR:   Thank you, gentlemen.

AT 10.11 AM THE MATTER WAS ADJOURNED