ENT19 v Minister for Home Affairs & Anor

[2022] HCATrans 144

[2022] HCATrans 144

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S102 of 2022

B e t w e e n -

ENT19

Plaintiff

and

MINISTER FOR HOME AFFAIRS

First Defendant

COMMONWEALTH OF AUSTRALIA

Second Defendant

KEANE J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA AND BY VIDEO CONNECTION

ON MONDAY, 5 SEPTEMBER 2022, AT 11.03 AM

Copyright in the High Court of Australia

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

MS L.G. DE FERRARI, SC appears with MR J.D. DONNELLY for the plaintiff.  (instructed by Zarifi Lawyers)

MR S.B. LLOYD, SC appears with MS A.M. HAMMOND and MR J.G. WHERRETT for the defendants.  (instructed by Australian Government Solicitor)

HIS HONOUR:   Ladies and gentlemen, can I just say at the outset, in addition to the material that I read for the previous occasion, I have read the further amended application of the plaintiff dated 26 August 2022, and I have seen the draft proposed minutes of orders of each party for today.  Yes, Ms De Ferrari.

MS DE FERRARI:   Yes, your Honour.  The timetables are substantially the same in terms of where they might get the matter ready for a hearing.  The one issue is whether the matter should proceed before a Full Court by way of a special case or by way of an agreed bundle of papers.  That is the substantive issue.  The minutes are drafted differently.  We have adopted order 44 without spelling out every step, whereas the defendants have spelled out the steps that take us to the hearing.  Substantially, everything would be complete by mid‑November, and I think that is the earliest that can sensibly be done, and then it will be a matter – if that timetable suits, it will be a matter for when the Court might be minded to hear it.  In my estimation, it is a one‑day matter.

HIS HONOUR:   Mr Lloyd, do you agree with that, that it is a one‑day matter?

MR LLOYD:   I think so, yes, your Honour.

HIS HONOUR:   Okay.  Ms De Ferrari, is there a substantial difficulty between the parties as to whether it should proceed by way of a special case or by way of the bundle of papers?  I just have it in mind that on previous occasion it was pressed on me that this is an urgent matter, and it obviously is a matter where there is a compelling public interest in having it determined.

I am just wondering what it is, by way of matters of fact, that would necessitate a special case, given that there have already been findings of fact by the Full Court of the Federal Court and these proceedings are not in the way of an appeal against those findings of fact, and I had apprehended that your argument accepted that, so far as they are findings of fact, as opposed to findings of fact which may have some legal complexion one way or the

other having regard to the Minister’s purpose, we did not have any factual controversies.  I am just wondering, what is it that you see as the factual – what it is that needs to be the subject of agreement in a special case.

MS DE FERRARI:   Your Honour is quite correct.  I should note, again, those are findings of fact that were made in respect of a different decision, but we do say it is substantially the same reasoning.  It is a new decision, and no findings of fact about that.  Your Honour, ultimately, I do not think it is going to be any issue in dispute, and certainly it is the defendants that propose to go by a bundle of papers, so they must be happy that there are no issues in dispute.  It was just a matter of whether it would be more convenient for the Court to have it presented in terms of finding the relevant matters in the papers and having the questions stated to have it as a special case.

Your Honour the previous time indicated that it might proceed by a special case.  We think it can be done by a special case.  Equally, we are not going to stand in the way of being done by way of an agreed bundle of papers that the Court can extract the facts, assisted by a chronology and submissions as to where those facts are to be found.  The legal complexions that might be put about those facts is obviously a different matter.  But if the defendants are content that there is no factual issue in dispute that arises, having seen our further amended originating application and they decided the materials that it refers to, then it can certainly proceed that way.  It really is a matter of what is most expedient for the Court.

HIS HONOUR:   Well, it is a matter of expedience for the Court, of course, but it is also a matter of not delaying the matter unnecessarily ‑ ‑ ‑

MS DE FERRARI:   I agree, your Honour.

HIS HONOUR:   ‑ ‑ ‑ to reach agreement about matters of primary fact where that might not be possible.  Mr Lloyd, what is your position?

MR LLOYD:   Yes.  Your Honour, our position was that we thought this was a matter that could be done on the papers.  Mostly it will be what was before the Minister at the time that she made her decision.  We did not think there would be much contention about that.  There might be arguments to be made as to what inference is to be drawn from that material, but that would be the material.  So, the fastest and easiest way, we thought, was just to proceed that way.

We did ask the applicants what additional facts that they would want and they have not yet told us anything.  So, we just think it seems to be faster to be done on what would be in a couple of affidavits – which we have already filed and served – and then some documents which I do not

think are kind of controversial at the moment, anyway.  That is my current understanding.

So, just to make it clear, we have put in an affidavit from a Ms Wood, that deals with the habeas corpus aspect of it.  There is the affidavit from Mr Hutton, which deals with the conclusive certificate decision.  Then there would be the submission to the Minister and the May 2022 decision, the June 2022 invitation and the reasons for the conclusive certificate, possibly.  That is something along the matter – that is what we thought would be involved.  Our only concern is if the applicants – or the plaintiff, rather – want something else, then we do not know what that is.

HIS HONOUR:   Ms De Ferrari, is there something else that you want?

MS DE FERRARI:   Your Honour, we referred in the further amended application to a press release by the previous Minister.  That spurred then the reporting by the various media outlets naming our client.  Your Honour would recall that one of the matters that this current Minister for Home Affairs relied upon in her decision was the fact that there had been news reporting about my client that named him.  That was all done – occurred because of a press release by the previous Minister for Home Affairs that named him.  So, that press release is something that we would want to go in.

HIS HONOUR:   Is there a problem about that, Mr Lloyd?

MR LLOYD:   I do not know if that press release was before the Minister when she made her decision.  That was all.  So, I mean, if it went in, it would have to be on the basis that it was not before the Minister.  I am not sure if that is enough for my friend.

HIS HONOUR:   Is it, Ms De Ferrari?

MS DE FERRARI:   That it was not before the Minister is a part of the problem.  The Minister did not have the full history as to why he was actually named in the press, which is something that the Minister held against my client.  He was named in the press because the previous Minister, her predecessor, decided to have him named in the press.  She did not make any reference or give any consideration to that fact.  The causation was the Minister himself – the then‑Minister himself.  What is then seen as an obstacle to my client getting a visa is the fact that his name is known.

HIS HONOUR:   Mr Lloyd?

MR LLOYD:   Well, all I can say at the moment is that – on my instructions, that was not before her.  So, if the proposition that they want to have is that – here is a copy of an article that was not before the Minister for whatever – or an article or a press release that was not before the Minister, then, you know, that probably is uncontroversial, I would think.

HIS HONOUR:   And, Ms De Ferrari, does that go as far as you need?

MS DE FERRARI:   Yes, your Honour.  It is just the actual document.  If it is submitted that the press release by the previous Minister for Home Affairs, the honourable Dutton, then that is the argument that we would make on the basis of that document.  That is why there has been news reporting about him being convicted, because the Minister named him.

MR LLOYD:   Perhaps the way through is if my friend’s solicitor does an affidavit that attaches that document, and then the records will show that it was not before the Minister.  That seems to be what they want to establish and what we accept.  That would all be apparent on the papers, so they can put forward the fact that the previous Minister issued that press release and that will be established by the affidavit, and that it was not before the Minister will be established by the documents which show what was before the Minister.

HIS HONOUR:   Now, does that sound acceptable to you, Ms De Ferrari?

MS DE FERRARI:   Yes.  That covers the field.

HIS HONOUR:   All right.  On that footing, I am inclined to think that we can proceed on the basis of the defendants’ proposed orders.  I will confess to some residual concern as to how the matter we have just been discussing will be satisfactorily resolved, but I am optimistic on the basis of what I have been told that that will not be a problem.

As to paragraph 2 in the defendants’ proposed orders, I am not in a position to say that the amended application should be referred for consideration in the November sittings.  I think we will need to have that paragraph provide:

2.The Plaintiff’s amended application filed on 26 August 2022 and the agreed bundle of documents be referred for consideration by the Full Court on a date to be fixed.

I am sorry I cannot be firmer about that, but that is just the way the – that is just reflecting the exigencies of the Court’s docket.  Otherwise, I would be content to make directions in terms of the defendants’ proposed orders, which I will initial and – yes, Ms De Ferrari?

MS DE FERRARI:   Your Honour – given that, perhaps if the first order be made the 19th, just to give a little bit more time to get all the papers – we would have to do another affidavit and get all the papers agreed and then filed by the defendants.

HIS HONOUR:   Okay.  Mr Lloyd, any problem with that?

MR LLOYD:   No, your Honour, that is fine.

HIS HONOUR:   All right.  Well, paragraph 1 will now be:

1.On or before 4pm on 19 September 2022, the Defendants file and serve an agreed bundle of documents.

And I notice that there is:

10.The parties have liberty to apply –

So, if there is a problem about that, you can come back.  Not that I am encouraging you to do that, but, if it is necessary, it can happen.  Are there any other alterations that need to be made to the defendants’ proposed orders?  Mr Lloyd?

MR LLOYD:   The only other issue was, I think, the plaintiffs wanted an extra week to put on a joint bundle of authorities.  So, order 8, I think they wanted that to be 21, but we are not fussed by that, if that is ‑ ‑ ‑ 

HIS HONOUR:   Ms De Ferrari, is that right?

MS DE FERRARI:   I think – I do not know that it was on these particular orders.  I think it might have been the way the other orders worked in terms of following order 44 and the timing for that.  We do not mind having it by the 14th.  If it is not the November sittings, it is not going to matter if it slips, in any event.

HIS HONOUR:   It is just that I cannot guarantee you that.

MS DE FERRARI:   No, I understand, your Honour.  We can live with 14 November, your Honour.

HIS HONOUR:   Okay.  Did you have any other suggestions?

MS DE FERRARI:   No, your Honour.

HIS HONOUR:   I propose to order the costs of today be costs reserved, and make that paragraph 11.  Very well, then.  I will make directions in terms of the defendants’ proposed orders, that I have initialled and placed with the papers, and we can adjourn the Court.  Adjourn the Court, please.

AT 11.20 AM THE MATTER WAS ADJOURNED