Isley v Minister for Home Affairs & Anor

[2021] HCATrans 121

[2021] HCATrans 121

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M17 of 2021

B e t w e e n -

JOHN ISLEY

Plaintiff

and

MINISTER FOR HOME AFFAIRS

First Defendant

COMMONWEALTH OF AUSTRALIA

Second Defendant

GAGELER J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON WEDNESDAY, 4 AUGUST 2021, AT 11.00 AM

Copyright in the High Court of Australia

HIS HONOUR:   In this matter the orders that I make are as follows:

1.The interlocutory application filed on 3 August 2021 is directed to be determined on the papers and is dismissed.

2.The originating application for a constitutional or other writ is dismissed.

3.The plaintiff is to pay the defendants’ costs of and incidental to the originating application.

I publish my reasons and I direct that those reasons be incorporated into the transcript.

The plaintiff in this application for a constitutional or other writ filed in the original jurisdiction of the High Court is a citizen of the United Kingdom.  He was born in1962.  He relocated to Australia with his family in 1971.

In 2011, following a trial in the County Court at Melbourne, the plaintiff was convicted of indecent assault of a child under the age of 16 and of incest.  On appeal to the Court of Appeal of Victoria, his total sentence was reduced to imprisonment for eight years and six months with a non‑parole period of five years and eight months.

In 2015, a delegate of the Minister cancelled the plaintiff’s visa under s 501(3A) of the Migration Act 1958 (Cth). In 2017, the Minister decided not to revoke the cancellation under s 501CA of the Migration Act.  In 2018, Kerr J in the Federal Court of Australia dismissed an application for judicial review of the non‑revocation decision:  Isley v Minister for Immigration and Border Protection [2018] FCA 632.

The plaintiff served the whole of his term of imprisonment. Upon his release on 23 September 2019, he was taken into immigration detention under s 189(1) of the Migration Act where he remains.

The originating application for a constitutional or other writ names the Minister for Home Affairs and the Commonwealth of Australia as defendants.  The originating application was signed by counsel for the plaintiff on 10 March 2021 and was filed by the solicitor for the plaintiff on 12 March 2021.

By the originating application, the plaintiff seeks writs of prohibition and habeas corpus, a declaration to the effect that his detention and continuing detention purportedly under s 189(1) of the Migration Act was and is invalid, and damages for false imprisonment on an aggravated and exemplary basis.

In the originating application, the plaintiff relies on four grounds for the relief he seeks.  The grounds are confusing in their expression and are confused in their content.

The first ground is to the effect that the treatment of the plaintiff under s 501(3A), s 501CA and s 189(1) of the Migration Act amounted to a “violation of the principle of legality” on the basis that the provisions “abrogated and curtailed” the plaintiff’s legal rights “to apply for” and, or “to be released on parole”.  He particularises that these provisions, “in particular [s] 501(3A) and [s] 189 of [the Migration Act], do not provide express words empowering the Minister and/or his officers to abrogate or curtail the sentencing and parole orders of the [County Court] as substituted by the [Court of Appeal] on appeal”.

The second ground is to the effect that the treatment of the plaintiff under s 501(3A), s 501CA and s 189(1) “abrogated and curtailed the independence and authority of the [Court of Appeal] and the [Adult Parole Board of Victoria] in the performance of the administration of justice ... in violation of [Ch III of the Constitution]”.

The third ground is to the effect that the treatment of the plaintiff under s 501(3A), s 501CA and s 189(1) “abrogated and curtailed the independence and authority of the [County Court] and the [Court of Appeal] and the [Adult Parole Board] in the performance of the administration of justice ... in violation of the principle of [State] immunity pursuant to [ss] 106 and 107 of the [Constitution]”.

The fourth ground is expressed in the originating application as follows:

“The exercise of power by the Minister and/or the officers of the Commonwealth, resulting in the detention of the plaintiff from 23 September 2019 until the present day, abrogated and curtailed (a) the principle of legality; and/or (b) the separation of powers doctrine and/or (c) the principle of state immunity and/or (d) the constitutional limits on the plaintiff’s detention for the purposes of his removal when the Minister is unwilling or unable to return the plaintiff from Australia to the UK within the foreseeable future and was unlawful.”

Paragraphs (a), (b) and (c) of the fourth ground appear to be in substance no more than a repetition of the first three grounds, as appears to be confirmed by the particulars which immediately follow.

Paragraph (d) of the fourth ground, however, introduces a new and independent claim to the effect that the plaintiff’s detention or continuing detention under s 189(1) of the Migration Act is invalid by reason of unwillingness or inability on the part of Commonwealth officers to remove the plaintiff from Australia to the United Kingdom in the foreseeable future.  Further paragraphs of the particulars seek to link that alleged unwillingness or inability to “the [outbreak] of COVID19 and the closure of Australia’s and Britain’s borders”.

After the filing of the originating application, the parties complied with the requirements of Pt 25 of the High Court Rules 2004 (Cth) for the filing of a response and reply. After judgment was given in The Commonwealth v AJL20 (2021) 95 ALJR 567, I directed the parties to file supplementary submissions addressing the effect of that decision on the originating application. In response, the defendants and the plaintiff filed supplementary submissions on 22 July 2021 and 26 July 2021 respectively.

On 2 August 2021, the parties were advised by a Deputy Registrar that the matter would be listed for determination on 4 August 2021.

In the afternoon of 3 August 2021, the plaintiff filed an interlocutory application seeking leave to amend the originating application.  In an accompanying affidavit, the solicitor for the plaintiff explained that the plaintiff had sent an email to the defendants on 28 July 2021 seeking consent to the filing of an amended application and had received no response.

The eleventh‑hour nature of the application for leave to amend is not suggested to be attributable to any change in the plaintiff’s circumstances and is not adequately explained by the accompanying affidavit.  Were there to appear to be an arguable basis in fact and law for the amendment sought, a real question would arise as to whether the amendment should be permitted as a matter of discretion.  For reasons which will become apparent, there is no arguable basis in fact and law for the amendment sought.

Were the leave to amend now sought by the plaintiff to be granted, there would be no change to the relief sought in the originating application.  The principal change would be that the fourth ground would be re‑expressed as follows:

“The decision by the Minister and/or the Commonwealth to detain the plaintiff made on 23 September 2019 until the present day pursuant to section 189(1) of the Act, abrogated and curtailed (a) the principle of legality; and/or (b) the separation of powers doctrine and/or (c) the principle of state immunity and/or (d) the constitutional limits on the plaintiff’s detention for the purposes of his removal when the Minister is unable to return the plaintiff from Australia to the UK as soon as reasonably practicable and the Minister is unwilling to grant the plaintiff to remain in Australia. The plaintiff is therefore subject to an arbitrary and indefinite detention by the defendants, contrary to law.”

As so re‑expressed, paragraphs (a), (b) and (c) of the fourth ground would remain in substance a repetition of the first three grounds. The main difference would be that paragraph (d) would be reformulated to claim that the plaintiff’s continuing detention under s 189(1) of the Migration Act is invalid by reason of an inability on the part of Commonwealth officers to remove the plaintiff from Australia to the United Kingdom in the foreseeable future combined with an unwillingness on the part of the Minister to grant the plaintiff permission to remain in Australia, presumably through the grant of a visa.

Proposed amendments to the particulars to the originating application appear to indicate two bases for the invalidity that would be asserted in paragraph (d) as reformulated.  One would be that the continuing detention of the plaintiff is “in violation of the prohibition against arbitrary and indefinite detention and in violation of the prohibition against torture, cruel, inhuman or degrading treatment, under customary international law, as adopted or incorporated into Australian law”.  The other would be that the continuing detention is unconstitutional, involving the plaintiff seeking to re‑open Al‑Kateb v Godwin (2004) 219 CLR 562.

The plaintiff proffers no explanation as to why the first three grounds, and paragraphs (a) (b) and (c) of the fourth ground, were not advanced in the application for judicial review of the non‑revocation decision which was heard and determined by the Federal Court in 2018.  In the absence of any such explanation, the application is to that extent appropriately characterised as an abuse of process:  Plaintiff S3/2013 v Minister for Immigration and Citizenship (2013) 87 ALJR 676 at 678 [9]‑[14]; 297 ALR 560 at 562‑563.

None of the first three grounds or paragraphs (a) (b) or (c) of the fourth ground in any event provides an arguable basis for challenging the cancellation decision under s 501(3A), the non‑revocation decision under s 501CA or the detention of the plaintiff under s 189(1). Each appears to proceed on the gross misconception that cancellation of the plaintiff’s visa and the plaintiff’s consequent immigration detention in some way operated to interfere with the exercise of State judicial power involved in the imposition of the criminal sentence on the plaintiff or with the exercise of State executive power involved in the denial of his application for parole. The visa regime of the Migration Act is separate from and cumulative upon regimes of State criminal justice, as was emphasised in Falzon v Minister for Immigration and Border Protection (2018) 262 CLR 333. Such potential as might exist for the regimes to intersect in practice at an operational level is not manifest in the circumstances of the present case.

To the extent that paragraph (d) of the fourth ground as formulated in the originating application seeks to rely on circumstances related to the COVID 19 pandemic, the application is unsupported by evidence that the Minister or any relevant officer is unable, or unwilling, to remove the plaintiff from Australia in the foreseeable future.  To the extent that judicial notice is appropriate to be taken of limitations on international travel that have been imposed from time to time in Australia and in the United Kingdom in response to the COVID 19 pandemic, judicial notice is also appropriate to be taken of those limitations having changed from time to time and of those limitations being kept under constant revision.

The absence of any evidentiary basis for the assertion that the Minister or any relevant officer is unable to remove the plaintiff from Australia in the foreseeable future is sufficient to deny the plaintiff leave to amend to reformulate paragraph (d) of the fourth ground insofar as it would involve the plaintiff seeking to re‑open Al‑Kateb v Godwin.  The plaintiff’s attempt to reformulate paragraph (d) to rely on international law is simply untenable.

The application for leave to amend the originating application will be the subject of a direction under r 13.03.1 of the High Court Rules 2004 that it be determined without being listed for hearing and will be dismissed. The originating application itself will be dismissed under r 25.09.1 of the High Court Rules.  The plaintiff must pay the defendants’ costs of and incidental to the originating application.

AT 11.01 AM THE MATTER WAS CONCLUDED