In the matter of a proposed application by Sayed-Navab Shah & Ors against the Minister for Immigration and Citizenship and the Commonwealth of Australia

[2011] HCATrans 195

[2011] HCATrans 195

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  

In the matter of –

A proposed application by SAYED‑NAVAB SHAH & Others against the Minister for Immigration and Citizenship and the Commonwealth of Australia

HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON SUNDAY, 7 AUGUST 2011, AT 6.00 PM

Copyright in the High Court of Australia

HIS HONOUR:   Now, Ms Mortimer, I understand you want to mention a matter of a proposed proceeding.

MS D.S. MORTIMER, SC:   We do, if your Honour pleases.  If your Honour pleases, I appear with MS K.L. WALKER and MS E.A. BENNETT on behalf of 41 named people in a proposed application of today’s date and a summons that accompanies that, your Honour, seeking today’s emergent interlocutory relief.  (instructed by Allens Arthur Robinson Lawyers)

HIS HONOUR:   I understand notice has been given to the proposed defendants, at least informally, is that right?

MS MORTIMER:   The defendants have been served, your Honour, with the application, the summons and the two supporting affidavits.

HIS HONOUR:   The proceeding has not yet been issued, I think, has it?

MS MORTIMER:   It has not, your Honour, that is so.

HIS HONOUR:   But there we are.  Now, Mr Donaghue, you appear, as I understand it, on behalf of the proposed defendants?

MR S.P. DONAGHUE:   That is right, on behalf of both of the proposed defendants.  (instructed by Australian Government Solicitor)

HIS HONOUR:   And that is the Minister?

MR DONAGHUE:   The Minister as the proposed first defendant and the Commonwealth as the proposed second defendant.

HIS HONOUR:   Yes, thank you.  As counsel will see, the proceedings will be transcribed so that we know what has happened.

MS MORTIMER:   If your Honour pleases.

HIS HONOUR:   Ms Mortimer, I have had an opportunity, necessarily limited, to look at the following documents.  I have looked at a proposed originating application dated 7 August 2011.  I have looked at a proposed summons seeking interlocutory relief and also identifying permanent relief that is sought.  I have looked at an affidavit of Simon David Jackson sworn on 7 August 2011.  I have looked at an affidavit of David Thomas Manne sworn on 7 August 2011.  That, I think, is the sum of the material I have seen.

MS MORTIMER:   That is the sum of the material, your Honour.

HIS HONOUR:   On which you are moving?

MS MORTIMER:   It is, your Honour, that is so.

MR DONAGHUE:   Your Honour, we have not seen the last of those documents.

HIS HONOUR:   Which one was that?

MR DONAGHUE:   Mr Manne’s affidavit.

HIS HONOUR:   There is an affidavit of 7 August 2011 of some 10 pages, together with exhibits, which I think is just being handed to you now, Mr Donaghue.

MR DONAGHUE:   Thank you, your Honour.

MS MORTIMER:   Your Honour, I apologise to my learned friend for that.  It was emailed to his instructor within about 15 minutes of the other documents, I think.

HIS HONOUR:   Be it so.

MS MORTIMER:   We understand exigencies, your Honour.  Your Honour, in ‑ ‑ ‑

HIS HONOUR:   May I interrupt you before you begin?  May I say to you that my first impression is that I should consider whether you are entitled to any relief of the kind you seek to extend to 4.15 pm tomorrow, or further order, with a view to returning the matter for further argument before me at 2.15 tomorrow.  Given that (a) the proceeding has not yet been issued, (b) that the proposed defendants have had either no or very little notice of what is urged on your behalf, it occurred to me that a possible course I might take was to consider, in the first instance, whether you should have any relief.  But relief limited initially to 4.15 pm tomorrow, or further order, with a view to bringing it back on tomorrow, most likely by video link to Canberra, at 2.15 tomorrow. 

By which time (a) we will have a proceeding that has been issued, (b) we will have some defendants who have had some opportunity to consider it and put on material in answer.  It is up to you if you seek to dissuade me from that course.  But that is where I have got to in my thinking at the moment and you should know that before we begin.

MS MORTIMER:   Thank you, your Honour.  Your Honour, I do not seek to dissuade you from that course in the sense that the urgency which attends this application I can now inform your Honour, on the basis of something my learned friend, Dr Donaghue, has just told me, concerns 16 individuals, who are scheduled for removal tomorrow.  Now, as we understand it, again from Dr Donaghue, no decision has been made in respect of any of the other plaintiffs.

HIS HONOUR:   I am sorry, I interrupt you again.  Are all of the 16 presently plaintiffs, or is the identity of the 16 not yet known?

MS MORTIMER:   Your Honour, we have been supplied at the bar table with a document by Dr Donaghue, and I am grateful for that, that identifies the 16 and we have attempted to match them with our plaintiffs and it is common ground between the parties that all 16 are plaintiffs.  There are some difficulties in matching up some of the names.  We can, with certainty, match 11 and there are five for which our information is a little deficient and we are struggling to match, but I understand it is common ground that all 16 are amongst the 35 men, including, your Honour, and importantly in some respects, the lead plaintiff, Mr Shah, who has informed Mr Manne that he proposes to act as litigation guardian for the young unaccompanied minors.  But, your Honour, there is, as we understand it, no decision to remove or no scheduling for removal in relation to those unaccompanied minor plaintiffs.  So what comes before your Honour as a matter of urgency, we accept, only relates to those 16, and the course that your Honour proposes in relation to those 16, we accept, would be appropriate.

HIS HONOUR:   Very well.

MS MORTIMER:   Now, your Honour, the other thing that I need to say at the outset is if your Honour has had a chance to look at the application, your Honour will see that it has been drafted on an assumption that there is no declaration under section 198A.  That assumption is wrong and, as of an hour ago, we were informed that a declaration has been made and was made by the Minister, the first defendant, on 25 July 2011.  So far as we can ascertain, your Honour, that declaration has never been publicly available and we were certainly all unaware of it.

HIS HONOUR:   Is it an instrument of the kind that would ordinarily find its place on the register of instruments which the Commonwealth maintains and publishes?

MS MORTIMER:   It is certainly headed, “Instrument of Declaration,” your Honour, but I am not otherwise able to inform your Honour whether it is one that is obliged to be published or whether it has been.  It certainly was news to us.  So that part of the application we need to reframe.  We have arguments and I am able to put them in a summary form to your Honour, but just as my learned friend is struggling to get up to speed, your Honour, so on that aspect of the application am I.

HIS HONOUR:   Yes, do go on.

MS MORTIMER:   Your Honour, in relation to the two limbs which your Honour has to be satisfied to grant interlocutory relief, my understanding from my learned friend, Dr Donaghue, is that he will have some submissions to put to your Honour about the cost of any delay, but other than that, the Commonwealth does not propose to say very much about balance of convenience.  So we are really before your Honour on the basis of whether there is a serious question to be tried.  The serious questions which we will identify, your Honour, are these ‑ ‑ ‑

HIS HONOUR:   Is this confined presently to the 16 in question or is it put more broadly?

MS MORTIMER:   Your Honour, I will confine it on the basis of the acceptance of the course that your Honour has proposed to the 16, so that I will not be making any submissions about the unaccompanied minors.  We accept that that is a matter that can be dealt with, if need be, over the next while and we would expect that the Commonwealth, now that they know that there are lawyers acting for those people, to give proper notice if there is any change in the situation about the removal of those unaccompanied minors.

HIS HONOUR:   They being subject to the Immigration (Guardianship of Children) Act.

MS MORTIMER:   They are, your Honour, yes.

HIS HONOUR:   And whether the Minister, as guardian, might remove the children from the jurisdiction.

MS MORTIMER:   That is so, your Honour.  There are a number of very ‑ ‑ ‑

HIS HONOUR:   Thus, I would have thought, terminating the guardianship.

MS MORTIMER:   Yes, your Honour. There are a number of discrete issues that would arise in relation to unaccompanied minors, but the course that we accept as appropriate today your Honour does not have to deal with those. So the serious questions which we place before the Court are these. Firstly, your Honour, there is a statutory obligation in section 256 of the Migration Act to afford to a person who is in immigration detention at their request all reasonable facilities, amongst other things, for the taking of legal proceedings in relation to his or her immigration detention.

Now, the evidence before your Honour is that each of the 35 adult males has made such a request.  Your Honour has the evidence of Mr Jackson about what, in our submission, are rather extraordinary and bizarre steps that were taken to contact him out of the blue yesterday, him having no experience in relation to migration at all.

HIS HONOUR:   Mr Jackson being connected with the ACT legal aid system in particular ways.

MS MORTIMER:   The only duty lawyer that Ms O’Brien, on behalf of the Department of Immigration, seemed able to find. Your Honour has the evidence about the steps that he tried to take and eventually culminating in contacting Mr Manne and the retention of Allens Arthur Robinson and the way that we got here, your Honour. But in no way, shape or form, in our submission, has that duty in section 256 been complied with. Each of these individuals has expressed in as much of a direct way as could reasonably be expected in the circumstances – that is, by a handwritten document sent from Christmas Island – that they wished to have legal assistance and that they do not want to go to Malaysia.

In that document, they have also expressed fears of persecution in Malaysia, your Honour, that is, they say that because of their religious beliefs and activities – they are Shia Muslims – they will suffer particular difficulties in Malaysia.  So that not only do we have a situation where they want to challenge the lawfulness of their removal per se, but we have a situation where those individuals are saying that they fear persecution in a way that invokes the language of the Refugee Convention in the country to which it was proposed to send them.

In those circumstances, your Honour, we would submit that they are entitled under the Act to have reasonable facilities made available for the taking of legal proceedings in relation to their immigration detention and that duty presently remains unperformed.  In these circumstances, if that duty remains unperformed, they will be removed from the jurisdiction tomorrow and they will not have an opportunity to challenge their detention or their removal at all, that is, the subject matter of the proceeding will be destroyed.

HIS HONOUR:   Would it not be a necessary step in that argument, if the argument ultimately were to be advanced and adjudicated about, to demonstrate that they had, in effect, a serious question to be tried in proceedings in respect of which they sought advice.

MS MORTIMER:   Of course, your Honour.

HIS HONOUR:   Do we not then, by that path, go from 256, whatever content that may have, to whether, regardless of their being provided with legal advice, though there is a statutory obligation on the Minister to allow it, to whether they have a serious question to be tried about their removal?

MS MORTIMER:   I accept, your Honour, that that is the reasoning process which ultimately must be applied to examining the non‑compliance with that duty, but the point I make at the moment, your Honour, is that if that process is to be applied tonight by your Honour, it must be done, we would submit, with a very low threshold in the sense that in order to consider the arguments that are legitimately available and develop them, a number of steps have to available to the legal advisers; the first one of which is adequate contact with their clients.

HIS HONOUR:   Well, it is the factual base.  The legal arguments are good or bad and they are either serious questions to be tried or they are not, and serious question to be tried is a low threshold, but I understand legal questions never emerge except with a real factual base.

MS MORTIMER:   That is right, your Honour, they are not in a vacuum.  We do not have access to the detention notices in relation to these people, we do not have access to anything other than a photocopy of the declaration made under 198A.  There a number of things which legal advisers require ‑ ‑ ‑

HIS HONOUR:   No doubt Mr Donaghue and those instructing him may be able to assist me about why it is not a registerable instrument, but that is not a matter I stated – or ask you to stay to consider.

MS MORTIMER:   We will also be interested in the answer to that, your Honour.  Your Honour, although we accept the premise that underlies your Honour’s position, there is a point at which there has to be, and the statutory provision requires, reasonable facilities and that imports, in our submission, a reasonable amount of time to gather the factual substratum, to consider it and to consider it in a way that is peculiar to provisions which have not been the subject of any judicial determination.  That is the position, as we understand it, with section 198A.  It is the position with our argument about section 189(3) and it will be the position with our argument about the Minister’s refusal or failure to invoke section 46A. 

So those are all arguments which have not been the subject any judicial determination. They are complicated and, in that sense, consideration of whether there is a point to enforcing the statutory duty must, we would submit, come at a very low threshold in these circumstances, otherwise the duty will become meaningless, your Honour. So at the first instance, we submit that an interlocutory injunction restraining the removal, at least of those 16 individuals, should go on the basis of the non‑performance of a duty under section 256 and to enable a reasonable opportunity to be given to those people who, on the unequivocal evidence, have asked for legal assistance. That is the first point, your Honour.

HIS HONOUR:   Yes.

MS MORTIMER:    The second argument which we make, in terms of a serious question, revolves around section 189(3) of the Migration Act, that is the detention power. Each of these people, we understand it to be common ground, your Honour, is an offshore entry person. The power to detain them resides in section 189(3). It is a discretionary power in stark contrast to section 189(1). As our application discloses, our argument is that, on ordinary principles, the exercise of a discretion such as that affecting liberty, as it does, would be conditioned by an obligation to afford procedural fairness. No procedural fairness, on the evidence before your Honour, has been given to these people. It would also be conditioned, on ordinary principles, by relevant considerations and those considerations would include the state of health of people, whether detention was necessary for security reasons. We would submit again, your Honour, that on the evidence, and we anticipate that Dr Donaghue may in fact concede, that there has been no exercise of discretion.

I can inform your Honour that in a case that came before Justice Crennan earlier this year, Plaintiff M168/2010, in the interlocutory reasons for that, her Honour Justice Crennan records at paragraph 24 – I can hand a copy of that to your Honour. This was an application in relation to a number of unaccompanied minors, your Honour, for orders releasing them from detention. One of the key arguments was that their detention on Christmas Island under section 189(3) was unlawful for denial of procedural fairness and for failure to take into account relevant considerations. The concession made on behalf of the Commonwealth in that case and recorded by her Honour at paragraph 24 is that the Commonwealth was content for the Court to assume:

that the plaintiffs have established a prima facie case for relief in relation to the claim of invalidity of the Christmas Island detention decisions.

Your Honour, the arguments which we seek to put, aside from the fact that these 16 are not unaccompanied minors, but otherwise, considerations arguments and the natural justice arguments are the same.  So that we submit there is a serious question to be tried about that.  Clearly the statutory language imports a distinction between 189(1) and 189(3).  Clearly 189(3) contemplates that there will be some exercise of discretionary judgment by an officer and in circumstances, your Honour, where but for the detention, none of these 16 individuals would be able to be taken under section 198A to Malaysia, the lawfulness of their detention, in our submission, is critical. 

The Commonwealth should not be permitted to rely on a power to take a person out of Australia if immediately prior to their taking their detention is unlawful, so essentially to remove those people from the jurisdiction and supervision of this Court when there is a serious question to be tried about the lawfulness of their detention.  So, your Honour, that is the second basis on which we put the serious question.

The third basis on which we put it, your Honour, is a short basis that is set out in paragraph 36 of the application and that, your Honour, is building on the understanding of the statutory scheme as set out by this Court in Plaintiff M61, namely, that there is a decision made by the first defendant to bring offshore entry people within the statutory scheme and that each of these people has been subject to an adverse decision in that respect by the application of an inflexible policy to them without regard to the merits of their individual cases.  Your Honour, that, we would submit, is obvious from the evidence, the publicly available evidence, the statements about what will happen to these people.  What will happen to anybody who is not an unaccompanied minor, we submit, is unequivocally that they were going to be removed to Malaysia.  That is the third basis.

Your Honour, the fourth basis on which we move is section 198A.  As I have submitted to your Honour, we understand now that a declaration was made by the Minister on 25 July 2011.  I can hand a copy of that to your Honour.  May I take your Honour to the text of section 198A.

HIS HONOUR:   I am generally familiar with it.

MS MORTIMER:   If your Honour pleases.  There are two matters on which we specifically rely.  The first is that subsection (3) of that provision confers a discretion on the Minister.  Again, on general principles, in our submission, it is arguable that that is conditioned by procedural fairness, although we accept that it is more of a legislative Act and that may be an argument that is less attractive for that reason.  However, each of the matters that are set out in subsection (3)(a)(i) through to (iv) we submit are jurisdictional facts of which the Minister must be satisfied before he is empowered to make a declaration, and each of those matters, in our submission, the existence of each of those matters is capable of being reviewed.  At the moment, on the evidence before your Honour, the only thing in evidence about whether those jurisdictional facts are met would be the agreement between Malaysia ‑ ‑ ‑

HIS HONOUR:   It is an arrangement.  It is not an agreement.

MS MORTIMER:   An arrangement, your Honour, yes, between Malaysia ‑ ‑ ‑

HIS HONOUR:   It is a statement of political intention, I think, is the expression, is it not?

MS MORTIMER:   It is, your Honour, and that was to be my first point.  It is by clause 16 of that arrangement.  It is expressly provided that it is not to be enforceable.  It is nothing more than a political statement and even in those terms, in our submission, your Honour, what it says about the matters in (i) to (iv) is equivocal at best, and what the statutory provisions in (i) to (iv) actually mean is presently completely unascertained.  For example, (iv) requires that the country – that Malaysia meets relevant human rights standards.  Now, that is a statutory phrase which must be construed.  Does it include economic, social and cultural rights as well as civil and political rights?  On what material did the Minister make a decision that Malaysia meets relevant human rights standards?  So far as we are aware, your Honour, there is plenty of material to suggest the opposite. 

The word “protection” in this statute is undefined and, in our submission, there is an arguable case that “protection” means something that is a real and meaningful protection for an individual person.  What this agreement demonstrates is that people are given a month’s minimum income and possibly a month’s housing and then they are left to their own devices in Malaysia.  Now, whether that is capable of satisfying the statutory criteria is a matter which is reviewable by this Court, in our submission.  So that, in our submission, the satisfaction of the Minister, if that is what is intended by the phrase “the Minister may declare”, is reviewable. 

Secondly, section 198A(1) confers a discretion on the officer, again, in our submission, conditioned by procedural fairness and, we would submit, conditioned by relevant considerations.  To take one clear example raised on the material before your Honour, several of these men claim to fear persecution on the basis of their religious beliefs in Malaysia.  Now, in relation to each of those men, that would be a relevant consideration, we would submit, under 198A(1).  It would also be a matter which indicates why they should be afforded procedural fairness.  In those circumstances, the taking or the proposal to take each of the plaintiffs under 198A(1) is reviewable.  The ability, your Honour, to challenge either the making of the declaration by the Minister or the taking of these individuals out of Australia will be entirely frustrated unless interlocutory relief is granted.

HIS HONOUR:   I will just take you back to 198A(3).  The expression “provides access”, the expression “provides protection” where twice appearing may be an expression that is directed to some factual observation.  It may, however, possibly be read as directing attention not only to factual observations but subsisting legal obligations in the country concerned.

MS MORTIMER:   I accept that, your Honour.  That is a question of statutory construction which must be, in our submission, undertaken looking at the purpose and context of these provisions, which is to provide an alternative mechanism by which Australia fulfils its protection obligations.

HIS HONOUR:   If the latter view of those provisions were to be arguable, and I express no view on that, what is the present state of the evidence or your contention about the existence of relevant legal obligation in Malaysia?

MS MORTIMER:   Our submission, your Honour, is that it is common ground that Malaysia is not a signatory to the Refugee Convention.  We do not understand that Malaysia is a signatory to the Convention Against Torture and your Honour will notice in the agreement at – I am sorry, your Honour, I will just find that provision.  There is a particular clause in the agreement, your Honour, which contemplates what will happen to people who are found not to be owed protection obligations.  Your Honour, it is on page 8 of the arrangement under clause 2.3.2.  Your Honour, this is annexure A to the arrangement.

HIS HONOUR:   It is in the procedures document, is it?

MS MORTIMER:   Yes, your Honour.

HIS HONOUR:   Clause 2.3?

MS MORTIMER:   Clause 2.3.2(b).  What that contemplates, in our submission, is not that Malaysia will consider the transferee’s border claims to protections under other human rights conventions but only that Australia will.  So that in terms of how the Minister can be satisfied that Malaysia has a legal obligation to provide protection to persons seeking asylum, in our submission, this document is silent and it is silent because Malaysia has no legal obligations that, it is assumed, under international law in relation to those matters.

HIS HONOUR:   But I suspect that an answer that might be made to that area of concern is that those provisions are engaged only in respect of persons found not to be refugees.

MS MORTIMER:   Yes, your Honour, but that is relevant also to (iv) about meeting relevant human rights standards.  So that in terms of any subsisting legal obligations on Malaysia ‑ ‑ ‑

HIS HONOUR:   I understand that, but the 198A(3) question, if it be a question, is whether, as you would have it, (i) to (iv) are jurisdictional facts, if they are jurisdictional facts, whether they are complex facts being part observation of existing practice coupled with legal obligation underpinning observed practice, in fact, or it is simply a matter of observation about events as they are occurring in a particular country at a particular time without regard to what, if any, legal obligation underpins them.

MS MORTIMER:   Yes, your Honour, that is right and perhaps to add to that, whether it is arguable that a mere political arrangement which is unenforceable is capable of satisfying those jurisdictional facts.

HIS HONOUR:   Yes.  Do those arguments; one, is a political arrangement a sufficient footing for a 198A(3) declaration and, second, is a 198A(3) declaration available absent the country concerned having particular content to its law, whether, and by reason of adoption of the Convention and protocol or by domestic law, are those matters which presently find reflection in the application as framed?

MS MORTIMER:   No, they do not, your Honour, because we ‑ ‑ ‑

HIS HONOUR:   I understand why they do not.  What do you propose to do about that?

MS MORTIMER:   Your Honour, if your Honour is persuaded on the arguments as I have imperfectly developed them in relation to holding this matter over until tomorrow afternoon, we would proposing to file and serve and amended application reflecting those arguments in the morning.

HIS HONOUR:   By when, is the next question?  I would rather a real rather than an optimistic assessment, and I fear, Ms Mortimer, I know how easy it is at the moment to give a time, and then delivering it is just a tad harder.

MS MORTIMER:   Yes, your Honour, so long as the only document we had to amend was the application.

HIS HONOUR:   I am not giving you any prediction about that, Ms Mortimer.

MS MORTIMER:   No, I understand, your Honour.  That was the hypothetical ‑ ‑ ‑

HIS HONOUR:   But could you do it by 11 o’clock tomorrow, or noon tomorrow?

MS MORTIMER:   Well, if I had a choice, your Honour, I would respectfully ask for noon.  The more consideration we are able to give this, your Honour – because a lot of this falls down to a construction argument, so we do need to get some ‑ ‑ ‑

HIS HONOUR:   I understand that, but if presently we were to work on an assumption that if there is a serious question to be tried, if there is interim relief to go, the application, as amended, would be one that would be capable of filing and service by noon tomorrow.

MS MORTIMER:   Yes, your Honour.

HIS HONOUR:   Is there anything else you want to say on ‑ ‑ ‑

MS MORTIMER:   No, your Honour.  If your Honour pleases.

HIS HONOUR:   Thank you.  Yes, Mr Donaghue.  I would be assisted, I think, most by your focusing on the matters most recently debated about 198A, that is to say, whether the declaration is, as no doubt you will either say no or later, unchallengeable.

MR DONAGHUE:   Your Honour, can I hand up a short folder which unfortunately does not have an index in it because we were a little pressed for time, but Ms Mortimer said, no doubt for similar reasons, that there are not any authorities on 198A.  That is not correct.  Just that we do – his Honour Justice French, as he then was a member of the Federal Court, in P1/2003 when the Commonwealth looked at the section, it was also looked in Sadiqi v The Commonwealth and I will take your Honour to both of those cases, if I might.  Before I do that, can I first remind your Honour of three passages in M61 where the Court looked at the relationship between section 46A and section 198A and treated them, in my submission, as two alternative ways of dealing with claims of offshore entry persons.

HIS HONOUR:   I am generally familiar with that.  As I say, I would be much assisted by your submissions about whether there is a serious question to be tried about the validity of this declaration.

MR DONAGHUE:   All right, your Honour.  If I can turn immediately then to P1, which is I think behind the third of the tabs in your Honour’s folder?

HIS HONOUR:   I have that.

MR DONAGHUE:   P1 was, in fact, Mr Sadiqi, at a much earlier stage in the litigation.  If I can just briefly indicate the facts to your Honour.  Mr Sadiqi had been rescued when his boat was sinking by an Australian Customs vessel and was taken directly to Nauru pursuant to the declaration then in force under section 198A of the Act.  He was then brought back to Australia pursuant to section 198B, which refers to transitional persons, to give evidence in the inquest concerning the sinking of the boat and having given that inquest, it was then proposed to return him to Nauru and he sought interlocutory relief to prevent that return.  It was that proceeding that came before his Honour Justice French and his Honour dealt with 198(3) at the end of the judgment in paragraphs [49] and [50].

HIS HONOUR:   Did his Honour consider the questions which had been identified in the course of argument this evening?

MR DONAGHUE:   Not the second of the them, your Honour, but in terms of – the question whether the facts identified in the various subparagraphs of subsection (3) are jurisdictional facts was considered by his Honour and his Honour expressed a view there that has been subsequently taken up in Federal Court cases that the terms in which the section is drafted:

does not in terms condition the power to make a declaration upon satisfaction of the standards which are its subject matter.  The form of the section suggests a legislative intention that the subject matter of the declaration is for ministerial judgment.  It does not appear to provide a basis upon which a court could determine whether the standards to which it refers are met.  Their very character is evaluative and polycentric and not readily amenable to judicial review.  That is not to say that such a declaration might not be invalid if a case of bad faith or jurisdictional error could be made out.  In my opinion, however, the argument against the validity of the declaration faces a significant threshold difficulty.  It does not support the view that there is a seriously arguable case.

We submit that his Honour was addressing there the question of whether the reference to jurisdictional error is a reference to bad faith in matters of that kind and we concede that it would be open to challenge a declaration on that basis.  But we submit that his Honour’s observation about the character of those criteria as being criteria that called for a judgment by the Minister rather than an objective judgment is, with respect, correct and supported by the language of the subsection in that it refers not to the existence of any of those things, but to the Minister having declared all of those various things.  Your Honour, in the next case ‑ ‑ ‑

HIS HONOUR:  It may, it may not, I do not know, bear some comparison with what this Court looked at in a case which is reported in 180 CLR 474. It is called BHP Petroleum v Balfour.  It is a case apparently very distant from this.  It concerns what is the wellhead of a petroleum subsea completion off Bass Strait.  The Court there identified the ministerial power as, in effect, fact finding and the Minister was not able to find as a fact that a valve was a wellhead if it would not, according to ordinary usage of the term, constitute a wellhead of a subsea completion.  Apparently very different, but there may be a question, there may not, whether 198A(3) is obliging the Minister to engage in an inquiry that it is in the nature of fact finding, step one.  If it is, there may be a question whether the Minister is bound under 198A(3) to not only find the facts but find that those facts are supported by legal obligation. 

MR DONAGHUE:   Your Honour, we submit, having regard to the character of the various matters identified in subsection (3), the legislature should not be understood as having identified these matters as facts that had to be found, particularly having reposed the judgment in the Minister who would not ordinarily be an officer of a kind required to undertake a fact‑finding task of matters of this kind.

HIS HONOUR:   In a matter where it is necessary that Australia abide its international obligations?

MR DONAGHUE:   Well, yes, your Honour, but making judgments as to the extent to which other countries with whom Australia has international relationships meet relevant standards.  The judgment that is being called for is obviously one that is potentially sensitive ‑ ‑ ‑

HIS HONOUR:   Extremely.

MR DONAGHUE:   ‑ ‑ ‑in affecting Australia’s international obligations and one in which minds might reasonably differ as to what, for example, effective procedures are in assessing needs for protection.  That is what the relevant human rights standards are, are matters that cannot, in our submission, be subject to an objective answer.  They are just criteria that necessarily contemplate a range and whereupon the range a country needs to fall before a declaration should be made or can validly be made under section 198, we submit, is reposed in the Minister.

If I could take your Honour to Sadiqi, because these arguments were considered in more detail in Sadiqi than by Justice French in P1 and by Justice McKerracher.

HIS HONOUR:   Is it another single instance, first instance judgment?

MR DONAGHUE:   It is but not an injunction application, your Honour.  This was preliminary questions had been stated to finally determine the questions.  There were a large number of issues and I have only given your Honour the relevant part of the judgment but it starts at page 47.  In fact, at the bottom of page 46, you can see question 8 was stated as:

does any of the criteria in s 198A(3) of the Migration Act constitute a jurisdictional fact, the existence of which is relevant to the validity of the second defendant’s declaration of Nauru under s 198(3) of the Migration Act?

HIS HONOUR:   You take this, do you, in aid of a proposition that it is beyond argument that these are not jurisdictional facts?  I have probably got too many negatives there.

MR DONAGHUE:   Your Honour, we say that every judge who has needed to decide this question has found that they are not and that is consistent with the form of the drafting of the section.  I would not go so far as to say beyond argument, but I submit that there is no serious question to be tried having regard to the question to that issue because the form of the section is such that it does call for that evaluation.  Now, Justice McKerracher relied upon in paragraph [221] a decision of the Full Federal Court constituted by Justices Lockhart, Gummow and Foster, in the context of a regime that was found to be somewhat analogous.  This is the bottom part of page 48.  I rely on the last two sentences:

The Full Court constituted by Lockhart, Gummow and Foster JJ held that as the regulation used terms such as “substantial”, “significant” and “major”, questions could arise as to the state of affairs in other countries which involved issues very much of degree rather than of “indisputable fact”.  The court held the view that the resolution of such issues was conveniently reposed in the Minister. 

Justice Nicholson in another interlocutory proceeding involving Mr Sadiqi took the same view or applied that view in relation to the words “protection”, “access”, “effective” and “relevant standards” in section 198 but then ultimately did not need to determine the issue, but his Honour Justice McKerracher did over the page.  His Honour said:

[223]However, the appropriate standard in answering the present agreed preliminary questions is the conventional civil standard of balance of probabilities.  As with Eremin, the criteria contained in s 198A(3) are not criteria which admit of answers by reference to indisputable fact . . . Debates even about what evidence may be relevant in order to prove the existence of absence of such criteria would be substantial. It is improbable that Parliament would have intended that Australian courts should without clear legislative imprimatur make judgements with public effect about whether other countries meet relevant human rights standards. The criteria in s 198A(3)(a), in my view, are iconically the province of the Executive.

[224]The broad ranging and subjective nature of the considerations involved in the criteria and the fact that the opinions for and against could be so varied make it clear that the criteria do not set out straightforward objective standards.

Now, your Honour, I accept, of course, that that is a first instance judgment in the Federal Court, but it is a judgment that reflects full argument on the very question that is now raised before your Honour and we submit that for the reasons that his Honour gave, the question is appropriately answered in the way that his Honour did answer it, which was that these criteria are not jurisdictional facts.  If they are not jurisdictional facts, then the second issue about whether or not the reference to protection is a reference to legally enforceable protection would not arise because the Minister having declared the four subparagraphs to be satisfied ‑ ‑ ‑

HIS HONOUR:   Why?  Why would it not arise?  Is that not the anterior construction question?  The anterior construction question surely is whether the protection spoken of is protection in fact or legally enforceable protection?   What am I missing?

MR DONAGHUE:   Your Honour, the terms of the declaration made by the Minister track the language of the paragraph.

HIS HONOUR:   Yes, I know that, but the question is whether there is a question of construction of the statute.  Does 198A(3), when it uses these expressions, refer to protection in fact or is it referring to protection in fact supported by legal obligation?  Is that an open debate about the construction of the section or not?

MR DONAGHUE:   Your Honour, without seeking to avoid your Honour’s question, in my submission, it is a declaration about whether it is protection of fact or a declaration about whether it is protection in fact supported by legal obligation and if the declaration has that character, as long as the declaration tracks the section, then if the anterior issue that these are not jurisdictional facts is answered in the way that I submit that it should be, that is, if what is required for this power to be available is that the Minister has declared four things, if he has declared those four things, the power is available.

HIS HONOUR:   Regardless of whether the Minister has had regard to the existence of legal obligation if – I emphasise “if” – the section is available only where there is, it cannot be so.  How can it be so?

MR DONAGHUE:   Well, your Honour, in my submission, the contrary view required means that it is open to the Court to evaluate whether or not the criteria declared to be met are in fact met and, in my submission, if the Minister has declared that there is protection for persons seeking asylum in a country and that all that this section requires is that the Minister has declared the four identified things, then the criteria for the making of a valid declaration would have been met in those circumstances.  I accept that if your Honour is against me on the jurisdictional fact point, that the issue would arise, but ‑ ‑ ‑

HIS HONOUR:   It is not a question of whether I am against you.  The question is whether there is a serious question to be tried, is there a prima facie case, and at the moment I am having some difficulty.  The Minister decides to make a declaration.

MR DONAGHUE:   Yes.

HIS HONOUR:   In making that decision, would you accept that the Minister must ask himself or herself the right question, the right legal question?

MR DONAGHUE:   Well, your Honour, I would not accept that the right legal question is whether objectively those four paragraphs are – in my submission, there is not in fact a legal question that the Minister is required to answer.

HIS HONOUR:   Would you accept that the Minister must construe the section properly?

MR DONAGHUE:   Yes.

HIS HONOUR:   If on its proper construction 198A(3) is available, if and only if there is a legal obligation on the receiving country to provide the various matters mentioned in 198A(3), whatever their factual content may be, is there not a live question?

MR DONAGHUE:   Your Honour, if the power is available, only if the criteria are satisfied, then that would be so, but that would also mean the jurisdictional fact argument had been rejected.  It would mean that there was a constraint upon the capacity of the Minister to make a declaration that arose by reason of the factual existence or otherwise of the matters identified in those four paragraphs, and our primary contention is that that is not so, that it is for the Minister to decide whether to make a declaration under this section, and the Minister must declare those four things. 

There are, no doubt, constraints of a variety of kinds, including political kinds, upon the Minister making declarations of all of those things that are entirely untenable, but the judgment as to whether or not the Minister should make the declaration is for the Minister, in our submission, and that being so, it is, we say, not possible to say, well, Malaysia does not meet relevant human rights standards for various reasons, therefore it was not open to the Minister to make the declaration. 

We submit that that is the very argument that was rejected, certainly in Sadiqi v The Commonwealth, and we submit that was also said by Justice French to have substantial hurdles confronting it because of the nature of those criteria and because of the demonstrable difficulty that would arise in a proceeding in this Court, or in any other court, identifying the evidence that would be necessary in order to reach a judgment as to whether or not those criteria were satisfied.

Your Honour, it is apparent from the form of the subsection that a declaration in relation to a country is not made in relation to any particular individual, or group of individuals, and we submit that in those circumstances, the proposition that the Minister owes an obligation of procedural fairness before making a declaration in relation to a country is not supported by any authority. 

In relation to the question of removal pursuant to that section of individuals, as I understood her submission, Ms Mortimer suggested that there was likewise an obligation to afford procedural fairness before removing under that section.  We submit that that submission fails to have regard to the wider statutory scheme within which section 198A is found.  This Court in M61 identified that there would be a duty to remove under 198(2) of the Act unless the Minister was in the process of considering claims under 46A. 

The Minister has made it clear in this case that he is not going to consider claims under 46A in relation to persons who fall within the ambit of the Malaysia arrangement that was signed on 25 July and so we submit there is a duty to remove non‑citizens where there is a third country to which they can be removed, and that is the case at present, that country being Malaysia, under the arrangements that have been agreed between the Commonwealth and Malaysia.  So to submit that removal cannot occur without compliance with procedural fairness collides with the statutory obligation that is imposed on the Act in circumstances where the Minister has decided not to consider the exercise of non‑compellable powers in Australia and where there is a third country to which removal is possible.

HIS HONOUR:   That includes, does it, a country in which the person being removed alleged that he or she has a well‑founded fear of persecution for a Convention reason?

MR DONAGHUE:   At least in circumstances where that removal takes place pursuant to section 198A, we submit yes. 

HIS HONOUR:   Yes.

MR DONAGHUE:  Your Honour, those are the submissions that I would seek to make about the section 198A. I do not seek to say anything separate about the section 256 argument for the reasons identified by your Honour during Ms Mortimer’s submissions. I also do not seek to make any further submissions in relation to the question of the legality of detention under section 189 because, in my submission, that does not bear upon the matter with which your Honour is immediately concerned, being the pending removal. The removal is, I am instructed, scheduled to take place at 11.30 eastern standard time tomorrow, which is 8.30 am, Christmas Island time.

I have been instructed to submit to your Honour that there are both substantial financial costs and non‑financial costs involved in the arrangements that have been put in place with costs estimated in the region of $100,000 per day of delay in the removal arising out of costs of the detention services provider and another $120,000 a week in relation to the costs of the charter aircraft.  We accept that that, of course, is only part of the picture, but we submit that those costs are relevant to the balance of convenience questions to the extent that your Honour needs to address those issues.

HIS HONOUR:   Do you accept that removal will defeat the claim entirely?

MR DONAGHUE:   Your Honour, I think that is so.  It is difficult, in light of the proposed amendment to the claim, to be certain of that answer, but it seems likely that that would be so.  May it please the Court, those are my submissions.

HIS HONOUR:   Thank you.  Ms Mortimer.

MS MORTIMER:   Your Honour, there are ‑ ‑ ‑

HIS HONOUR:   Again, I would be grateful if you would confine your attention to 198A issues at the moment.

MS MORTIMER:   I will, your Honour.  There are two possible ‑ ‑ ‑

HIS HONOUR:   Forgive me, before you begin, I should have asked Mr Donaghue this and did not.  Mr Donaghue, you may not be able to provide me an answer at once, but was this document, the declaration, not a registrable instrument under the Legislative Instruments Act 2003?

MR DONAGHUE:   Your Honour, I am not able to provide you with a final answer to that question.  My understanding is that it is not because it is not a legislative instrument.  My understanding is that that Act requires regulations and instruments of that kind to be made.  This is a declaration that must be made by the Minister by way of an administrative decision under the Act which, having been made, triggers the availability of the power to remove under subsection (1).  But, as I understand, it does not have the character of a legislative instrument, but I do not have final instructions on that question and I do not, in fact, know whether it was or was not included in any such register, if there is an obligation to include.

HIS HONOUR:  Because if it is the subject of that Act, a question may arise about the engagement of section 12 of the Legislative Instruments Act 2003 (Cth), but these are questions about which neither side addresses. I say no more about them. Yes, Ms Mortimer.

MS MORTIMER:   Your Honour, there are at least two possible constructions of the words “the Minister may declare” and the following subparagraphs.  One is that they are jurisdictional facts about which a court can objectively make findings, and I will deal with that in a moment.  The second is that those words import the forming of a state of satisfaction by the Minister.

Now, the Commonwealth’s argument to your Honour is that there is no serious question on either of those constructions.  As I understand it, it is put to your Honour that on the basis of two single justice decisions, it is not seriously arguable that those matters are jurisdictional facts, and I will address that in a moment.  But then it also must be part of the Commonwealth’s argument that even if they are not jurisdictional facts and the proper construction of the words “the Minister may declare in writing” is the Minister has to be satisfied about something, the Commonwealth says to your Honour that that satisfaction is unreviewable by this Court.

In part my learned friend relied on a statement out of Sadiqi at paragraph [223] that it is improbable Parliament intended review.  Your Honour, we submit this is an Act par excellence where Parliament makes it clear if it does not intend something to be reviewable.  This Act is replete with provisions to that effect.

HIS HONOUR:   Not only that, but 75(v) cannot be taken away.

MS MORTIMER:   That is so, your Honour.

HIS HONOUR:   That is the bottom line. 

MS MORTIMER:   So it is a large thing indeed for the Commonwealth to submit that even if this provision is construed as requiring the Minister to be satisfied about something, that is an exercise of judgment that this Court cannot review.  If that was the case, the statement by the Parliament of criteria would be otiose and all that would be required is for the Minister to identify a destination.  The setting out of criteria with ascertainable standards, in our submission, submits that there are matters of construction that the Minister must get right and that there are matters of understanding that the Minister must get right.  The Minister must properly construe those words “provides protection”, including understanding whether they mean provides protection by way of legal obligation.  In our submission, your Honour, those words are susceptible to several constructions and it is a large thing to find it is not arguable that this Court cannot review them at all.

HIS HONOUR:   The Minister submits in one branch of the argument that it would be invidious for a court to pass judgment on the conduct of a state with whom, by hypothesis, Australia has friendly relations.  There is, perhaps, some force in that argument, but the consequence of the argument may be that the attention must focus not on what is happening in fact on the ground as much as on what are the legal obligations that are in place.

MS MORTIMER:   Your Honour, precisely, which is the construction issue that is raised, what is meant by those words “provides protection” because there is nothing ‑ ‑ ‑

HIS HONOUR:   We are not going to resolve that tonight, are we, Ms Mortimer?  I do not think I need trouble you further on that aspect of the matter.  What else, if anything, need be mentioned in reply?

MS MORTIMER:   Your Honour, that the finding by Justice McKerracher in Sadiqi is obiter and that of a single judge.

HIS HONOUR:   Yes.  As I say, I am not going to be determining this issue tonight.  The only questions is, is there a serious question.

MS MORTIMER:   Yes, your Honour.  The only other matter that my learned friend pointed to that I wish to reply to is the submission about 198A(1), in effect, as I understood my learned friend, imposing a duty to remove on everybody that is excluded from the 46A process.  The consequence of that, your Honour, is that every unaccompanied minor must be taken to Malaysia, every ill person must be taken to Malaysia and that is a construction which again your Honour, in our submission, is open to serious question.  If your Honour pleases.

HIS HONOUR:   This an application in which persons who seek to be plaintiffs in proceedings which it is proposed should be instituted in this Court seek interlocutory orders restraining their removal from Australia.  The matter has come on very quickly, on little notice to the defendants.  The defendants whom it is proposed to name in the proceeding which the plaintiffs intend should be instituted in the Court are the Minister for Immigration and Citizenship and the Commonwealth. 

As I explained in the course of argument, I am minded, first, to consider whether the plaintiffs, or any of them, should have interim relief of the kind that they seek until 4.15 pm tomorrow, 8 August, or further order, with a view to the matter returning for further argument before me at 2.15 pm on that day.  By that time the plaintiffs will have instituted their proceedings and the defendants will have had a further opportunity, not only to consider what arguments should be advanced against the application, but also to provide any factual material upon which they would seek to rely.

The facts which lie behind the application are not without their complexity.  The proceeding which it is proposed to institute would seek to name as plaintiffs 36 persons who claim to be adults and citizens of either Pakistan or Afghanistan.  Some claim to be of Pashtun ethnicity, others Hazara, still others Tajik and some Qizilbash.  It is proposed that six other persons be named as plaintiffs.  Each of those six others is said to be an unaccompanied minor in respect of whom the proposed first plaintiff would wish to act as litigation guardian.  Nothing is shown in the papers which are presently before me about the age of any of those six persons described as unaccompanied minors, save that each is said to be under 18 years of age.  Nothing is said in the papers about their citizenship or ethnicity. 

All of the proposed plaintiffs were recently brought to Christmas Island, what section 5 of the Migration Act 1958 (Cth) refers to as an “excised offshore place”. In the proposed originating process in this Court, it is intended to allege that each of the proposed plaintiffs claims to have a well‑founded fear of persecution for a Convention reason and to have sought protection from Australia.

The removal which the plaintiffs say they fear is removal from Australia to Malaysia.  This application for interim relief was argued on the footing that, of the named plaintiffs, 16 adults are likely to be removed from Christmas Island tomorrow unless an order is made restraining that removal.  Among the 16 whom it is proposed to remove is the first named plaintiff, the person who, as I indicated earlier, proposed to act as a litigation guardian for the six unaccompanied minors named in the proceeding.  The argument of the present application proceeded on the footing that no time has been fixed for any proposed removal from Australia of any of the unaccompanied minors.  Little, therefore, need be said this evening about their position. 

In considering whether interim relief of the kind I have indicated should be granted, it is necessary to take account of arrangements that have been made between the Government of Australia and the Government of Malaysia on questions of transfer of certain persons from Australia to Malaysia.  On 25 July 2011, the Minister of Immigration and Citizenship and the Malaysian Minister of Home Affairs signed a document entitled “Arrangements between the Government of Australia and the Government of Malaysia on transfer and resettlement”.  That arrangement recorded understandings reached between the two governments.  As clause 16 of the arrangement document records:

This Arrangement represents a record of the Participants’ intentions and political commitments but is not legally binding on the participants.

Clause 1, subclause 2 of the arrangement records that:

The Government of Australia will transfer certain persons seeking international protection to Malaysia for refugee status determination, in exchange for the Government of Australia accepting certain persons who have been determined to be refugees by the United Nations High Commissioner for Refugees (UNHCR) in Malaysia.

Subclause 3 records that:

This Arrangement is subject to the respective Participant’s relevant international law obligations in accordance with the applicable international law instruments or treaties to which the Participant is a Party.

Clause 4 provides that:

Subject to the terms of this Arrangement and the laws, rules, regulations, and national policies from time to time in force in Malaysia, the following Transferees will be transferred to Malaysia for processing:

1.Subject to clause 4(2), the Transferees to be transferred to Malaysia are those persons who, after the date of signing of this Arrangement:

a)have:

i.       Traveled irregularly by sea to Australia; or

ii.Been intercepted at sea by the Australian authorities in the course of trying to reach Australia by irregular means; and

b)who:

i.The Government of Australia determines should be transferred to Malaysia;

ii.Under Australian law, may be transferred to a declared country for processing or taken to a place outside Australia or removed from Australia; and

iii.The Government of Malaysia provides consent and approval for the transfer.

Clause 10 subclause 2 provides that:

(a)The Government of Malaysia will provide Transferees with the opportunity to have their asylum claims considered by the UNHCR and will respect the principle of non‑refoulement.

(b)the benefit of non‑refoulement may not, however, be claimed by a Transferee who is a refugee:

i.Whom there are reasonable grounds for regarding as a danger to the security of Malaysia; or

ii.Has been convicted by a final judgment of a particularly serious crime that constitutes a danger to the community of Malaysia.

(c)Where the exceptional circumstances in paragraph (b) may have arisen the Government of Malaysia will discuss a suitable country of destination with UNHCR.

The plaintiffs allege and, as I have recorded, it is common ground, that the Minister intends, unless restrained, to transfer 16 of the named plaintiffs to Malaysia pursuant to the arrangements that I have described. 

The plaintiffs seek interlocutory relief in two forms.  First they seek an interlocutory injunction restraining the Minister and the Commonwealth from taking any steps to remove the plaintiffs from Australia until the determination of the application which it is proposed to institute in this court and, second, they seek an interlocutory injunction requiring the defendants to afford to the plaintiffs all reasonable facilities for obtaining legal advice and taking legal proceedings in relation to their immigration detention.

In my opinion, it is not necessary to give consideration to granting any interim relief of the second kind that is sought. That is, I do not consider that tonight I should make any interim order that would require the Commonwealth or the Minister to afford the facilities for legal advice which are the subject of the proposed mandatory injunction. It is not necessary to do that because section 256 of the Act obliges the Minister and others to make those facilities available. It is unnecessary and, in my opinion, undesirable to make any interim order directed to that subject matter without identifying a particular circumstance or set of facts which would warrant immediate remedy without further notice and argument.

I therefore put that aspect of the claim for interlocutory relief aside from consideration in determining whether interim relief of the kind I am presently considering should be allowed.  It will be for the parties to make such further submissions, as they may be advised, at any further interlocutory hearing of this matter in that connection.  Rather, in my opinion, it is necessary to confine attention to the immediate question that presents itself as a matter of urgency; should the Minister and the Commonwealth be restrained from removing any of the 16 plaintiffs whom it is intended to remove from Australia to Malaysia.  I was informed that the removal would occur at 11.30 tomorrow morning Australian eastern standard time.

The principles to be applied in determining whether interim relief should go are well known.  I do not intend to rehearse those principles in any detail.  So far as the present application is concerned, the immediate question is whether there is a sufficiently serious question to be tried as would warrant restraining the Minister from effecting the removal which is intended for tomorrow.

It was not disputed that I should approach that question on the footing that unless removal of the plaintiffs in question is intercepted, the claims which they would seek to make in this Court will be defeated entirely.  Once that is accepted, it is then readily apparent that even without regard to the undoubted jurisdiction of this Court to preserve the subject matter of litigation pending in it (as to which, see Tait v The Queen (1962) 108 CLR 620), it is readily determined that if there is a question for an investigation, interim relief of the kind sought should go.

Counsel for the proposed plaintiffs advanced four serious questions requiring examination. I express no view of any kind about the first three of the questions which counsel identified. Those questions concerned the application of section 256 of the Migration Act concerning the affording of legal advice, the nature and extent of the power given under section 189(3) of the Act to detain persons and, third, whether the determination to remove the plaintiffs without considering the exercise of jurisdiction under section 46A or 195A of the Act was itself open to some dispute or attack.

As I say, as to those matters, I express no view. Rather, I direct attention, and I required counsel to direct attention, only to the questions that are presented in connection with the engagement of section 198A(3) of the Migration Act. Section 198A of the Act permits the taking of persons who are described as offshore entry persons to a declared country. Section 198A(3) provides that:

The Minister may:

(a)declare in writing that a specified country:

(i)provides access, for persons seeking asylum, to effective procedures for assessing their need for protection; and

(ii)provides protection for persons seeking asylum, pending determination of their refugee status; and

(iii)provides protection to persons who are given refugee status, pending their voluntary repatriation to their country of origin or resettlement in another country; and

(iv)meets relevant human rights standards in providing that protection; and

(b)in writing, revoke a declaration made under paragraph (a).

I was informed by counsel for the plaintiffs that they became aware only very recently that on 25 July 2011 the Minister made what is entitled “Instrument of declaration of Malaysia as a declared country under subsection 198A(3) of the Migration Act 1958”. I was informed that, so far as counsel for the plaintiffs knew, the making of that declaration had not previously been the subject of any publicity. I assume, but do not presently know, that the instrument is not one which appears in the register of legislative instruments and counsel for the Minister indicated that it was his understanding, as at present advised, that the instrument may not be one whose registration is required under that legislative regime. Be this as it may, the Minister has declared that Malaysia provides access, provides protection and meets relevant human rights in the fashion described in 198A(3) of the Act.

Counsel for the plaintiffs told me that now being aware of the making of this declaration, they would propose to amend the process which it was intended to institute in this Court to argue, in effect, that the declaration that has been made is legally infirm. As I understand it, an aspect of the argument which the plaintiffs would seek to advance in this Court, is that the instrument is legally infirm on the footing that section 198A(3) permits the making of a declaration of the kind described if, but only if, in the country that is declared as a specified country is a country in respect of which the various matters of access and protection and the like are the subject of enforceable obligations; enforceable, that is, according to the law of the country that is to be specified.

In circumstances where Malaysia is, as I am informed, not a party to the Convention or the protocol, the plaintiffs would submit, again as I understand it, that it was not open to the Minister to make the declaration that has been made in respect of Malaysia.  I express no view at all on the force of the arguments which the plaintiffs would seek to advance in this respect.  It would not be right in determining an application for interim relief limited to but a short time for me to essay any opinion on the strength of the arguments which the plaintiffs would advance in this regard. 

I notice, however, that section 198A takes its place in an Act which, as this Court has I think more than once observed, contains many references and many provisions explicable only by the Act’s intending to provide for Australia meeting the obligations which it has undertaken under the Refugee Convention and protocol. What consequence, if any, that observation may have for the proper construction of section 198A(3) is a matter for further and fuller argument, but I cannot say, contrary to the submissions advanced on behalf of the Commonwealth and the Minister, that the arguments advanced by the plaintiffs have no merit.

I do not wish there to be any misunderstanding.  I express no view upon the merits of the arguments.  But I cannot say that the arguments are necessarily without merit, and that is the only question that needs to be decided tonight, for if the arguments ultimately turned out to have merit, when it is recognised, as counsel for the defendants did, that removal from Australia would defeat the plaintiffs’ claims entirely, it follows, I think, inexorably that the plaintiffs should have the limited relief which they seek.

I recognise, of course, that as counsel for the defendants pointed out, there are substantial financial consequences for the Commonwealth if the proposals for removal of these plaintiffs are intercepted.  Significant amounts of money were mentioned as being the consequence of intercepting the removal of the plaintiffs, but be it so, their claims should not be defeated entirely by their removal from Australia if I cannot say that those claims are necessarily hopelessly bad.

In my opinion, the plaintiffs should have an interim injunction restraining their removal from Australia before 4.15 pm tomorrow, or further order.  The matter should return for further argument before me at 2.15 pm tomorrow.  If necessary, that can be conducted by video link to Melbourne for I would expect that by 2.15 pm tomorrow I should be in Canberra, though, of course, if counsel desired to appear in Canberra, they are entirely at liberty to do so.  It is necessary then, I think, subject to what counsel may say, that some further directions be given about the proper conduct of this proceeding, even in the short time that will elapse before it returns before me. 

First, Ms Mortimer, it will be necessary that your side issue the proceedings.  That will be an amended proceeding.  It is necessary that your side file the affidavits and it is probably desirable that they be served again with the filed initiating process.

MS MORTIMER:   Yes, your Honour.

HIS HONOUR:   Subject to adjourning it for further hearing at 2.15 pm tomorrow, what other directions or orders would I have to make?  Can I, in effect, think aloud and sketch what would seem to me to be the essence of the orders that need be made.  Perhaps if you would be good enough to sit down and take a note of them and I will then hear from both sides about what, if anything, should be done about their form.

1.Direct the solicitors for the proposed plaintiffs to file and serve not later than 12 noon tomorrow, 8 August 2011, an application for an order to show cause in or substantially to the effect of the draft application produced in Court on 7 August 2011, but amended so as to include such claims as the plaintiffs may be advised to make in respect of or in consequence of the instrument of declaration of Malaysia as a declared country under section 198A(3) of the Migration Act 1958 (Cth) dated 25 July 2011.

2.Direct proposed plaintiffs file and serve not later than 12 noon, 8 August 2011, any affidavit on which it is sought to rely in support of their application for interlocutory injunction together with a summons stating the injunction or injunctions that are sought.

3.Until 4.15 pm, 8 August 2011, or further order, the Minister is restrained, whether by himself, his officers or otherwise, from removing from Australia any of the persons named as a proposed plaintiff in the draft application for an order to show cause produced to the Court today and initialled by me.

4.Adjourn further hearing of the plaintiffs’ application for interlocutory relief to 2.15 pm tomorrow, 8 August 2011, by video link from Melbourne to Canberra.

5.Costs of today costs in the cause.

Now, what I have not included in that is any direction about the defendant’s material in answer.  I am presently not minded to make any direction of that kind, but I will hear counsel on that.  Ms Mortimer, is there anything you wish to say about what I have put in or, no less importantly, what is not there and perhaps should be there?

MS MORTIMER:   A minor query, your Honour.  Would your Honour prefer the application to be in a marked up form or not?

HIS HONOUR:   It is the initiating process, so it is probably unnecessary.  If by chance your solicitors happened to provide both to your opponent and to me a marked up copy, that would be a courtesy.

MS MORTIMER:   Thank you, your Honour.  If I might just have a word to my learned friend, your Honour, about whether he knows if the Commonwealth proposes to put any material on.  It may be something that we can sort out as between us.

HIS HONOUR:   You are going short service as it is, Ms Mortimer.

MS MORTIMER:   We will take it as it comes, your Honour.

HIS HONOUR:   I thought you might.  Yes.  Mr Donaghue, is there anything you say I have omitted or should add or subtract?

MR DONAGHUE:   No, your Honour, save that your order number 4, set by video link from Melbourne to Canberra, pursuant to your Honour’s indication, people might appear, there may be others who appear on behalf of the Commonwealth in Canberra tomorrow.

HIS HONOUR:   Yes.  You would astonish me if that were not so, Mr Donaghue, but who knows.

MR DONAGHUE:   Subject to that, your Honour ‑ ‑ ‑

HIS HONOUR:   Yes.  I take it I do not need to provide for service of the order, though it may be, I think, that the order should be taken out as soon as possible, and that will be tomorrow morning.  Mr Donaghue, is there any difficulty about this matter?  The order has been pronounced.

MR DONAGHUE:   The order has been pronounced.  I have ensured that is conveyed to the appropriate people.

HIS HONOUR:   Also that it is in force from the date and moment of its pronouncement.

MR DONAGHUE:   I will ensure that that is understood, your Honour.

HIS HONOUR:   Yes, very well.  May I thank counsel for their assistance in the matter.  Adjourn to 2.15 pm tomorrow.

AT 7.52 PM THE MATTER WAS ADJOURNED