Ismail v Minister for Immigration, Citizenship and Multicultural Affairs

[2023] HCATrans 73

[2023] HCATrans 073

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M20 of 2023

B e t w e e n -

MOUNIB ISMAIL

Plaintiff

and

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

Defendant

JAGOT J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA AND BY VIDEO CONNECTION

ON MONDAY, 5 JUNE 2023, AT 9.30 AM

Copyright in the High Court of Australia

HER HONOUR:   I will announce the appearances for the parties, given the remote hearing.

MS G.A. COSTELLO, KC appears for the plaintiff.  (instructed by Zarifi Lawyers)

MR R.C. KNOWLES, KC appears with MR N.D.J. SWAN for the defendant.  (instructed by Australian Government Solicitor)

HER HONOUR:   So, ordinarily I would propose to make some fairly standard directions, largely as per the plaintiff’s proposed orders, with some minor amendments, but I understand the defendant wants to seek an adjournment of the matter.

MS COSTELLO:   That appears to be the case, your Honour.  There has not been any affidavit material filed by the defendant in support of an adjournment application, and there has not been consent by our client for the Minister to email various documents to the Court selectively regarding the state of the same issue being argued in other places in Australia.

HER HONOUR:   Yes.  Okay.  So, perhaps I had better hear from Mr Knowles as to what their position is and the reasons in support of it.  Okay, Mr Knowles?

MR KNOWLES:   Yes, thank you, your Honour.  The Court will have seen the application in this case, which, made out of time, requires an extension of time, but essentially, subject to the grant of an extension of time, raises three proposed grounds in respect of a decision to refuse to grant a return resident’s visa to the plaintiff.

HER HONOUR:   Yes.

MR KNOWLES:   That decision was made under section 501(1) of the Migration Act and Direction No. 90 made by the Minister under section 499 of the Migration Act applied to that decision‑making by the Minister’s delegate.  The first proposed ground is that the delegate failed to make an obvious inquiry or did not apply paragraph 8.3 of the direction.  Now, that is a ground that turns on the specific facts of this matter, in particular, what materials were before the delegate, what case was the delegate required to consider and did the delegate in all the circumstances have a duty to inquire.

In terms of the second and third grounds, the Court will have seen that they relate to the construction and application of paragraph 8.2 of the direction, and in particular in respect of the second proposed ground it concerns whether or not the delegate impermissibly gave weight to find family violence repetitively, either on the basis that the direction did not permit that or, if it did, it was invalid insofar as it did.  The third ground is couched in similar terms, but in respect of a different, alternative issue, and that is that the delegate gave weight to family violence in a punitive or irrelevant way.

Now, those two grounds are said by the plaintiff to raise matters of public importance, as the Court will have seen from paragraph 25 of the application, and that is not conceded by the defendant as is indicated in paragraph 6 of the defendant’s response, but in any event, the matters the subject of those grounds are currently under consideration in other proceedings in the Federal Court, firstly in QHRY v The Minister, and that is proceeding number QUD69/2022.  That matter was commenced on 15 March 2022, it was heard by Justice Thomas on 27 September 2022, and judgment is currently reserved.

The second matter is that of Demir, which is proceeding number NSD83/2023.  That was commenced on 1 February 2023, and it is listed to be heard by Justice Kennett on 4 July 2023.  The defendant has provided the Court with some of the documents that have been filed in each of those proceedings, and in particular when one has regard to the documents in QHRY, it is apparent that the proposed grounds 2 and 3 in this matter are very similar in their nature to matters that are being argued in the Federal Court and have been the subject of hearing in QHRY.  I do not know whether I might take the Court briefly to those particular passages in the documents that indicate the similarity of arguments ‑ ‑ ‑ 

HER HONOUR:   I am not – I do not really need that.  I think the issue is more one of principle.  I think I am prepared to assume there may be some similarity, or some degree of overlap, but I am still wondering why this matter would not get heard even if there was direct overlap.  Has the matter that Justice Thomas heard been fixed for hearing, did you say that, or did I miss that?  The appeal.

MR KNOWLES:   The matter that is before Justice Thomas has been heard, it was heard in September last year ‑ ‑ ‑ 

HER HONOUR:   No, no, I meant the appeal, is there not an appeal, did you not say ‑ ‑ ‑ 

MR KNOWLES:   ‑ ‑ ‑ and reserved ‑ ‑ ‑ 

HER HONOUR:   ‑ ‑ ‑ no, it is reserved before Justice Thomas, is it, and then there is another single‑judge matter before Justice Kennett that is not yet heard?

MR KNOWLES:   That is correct, your Honour, and I fully concede that the state of play is that there are two first‑instance matters before the Federal Court in which we would say very similar arguments are advanced, but I fully concede that they are not imminently going before a Full Federal Court as such, and the highest that we put it is simply that the Court would be assisted in that respect by some consideration, judicial consideration of the issues by another court to have regard to how the matter has been addressed by another court, and on that basis ‑ ‑ ‑ 

HER HONOUR:   I do not really find that persuasive, I have to say.  I mean, it may be that if there were a couple of Full Court decisions that were imminent, it might be sensible to hold this off, but really, probably, in one sense, the other way around.  I just cannot – and this person is overseas at the moment, in Lebanon, is that right?  Wanting to come back in?

MR KNOWLES:   That is right.  Yes, that is absolutely right, he is overseas in Lebanon and seeks to return.

HER HONOUR:   Okay.

MR KNOWLES:   That is not in issue between the parties.  The only other matter that I might just point to in terms of my client’s position in this regard, your Honour, is that there may be issues of fact or evidence that have to be heard in the case relating to – just by way of example – the circumstances that were in existence so as to support a purported duty to inquire and insofar as there are factual issues that arise, we would simply say they ought to be tested before a single judge so as to retain a right of appeal to the Full Court.

HER HONOUR:   So, what are you suggesting – you have not put forward orders to deal with what you are currently suggesting.  What orders would you be suggesting to allow that to occur?  At the moment we have got the plaintiff’s proposed orders that the matter be referred to the Full Court for hearing.  What are you suggesting in the alternative?  I am not persuaded we should hold until the other two matters have made their way through the Full Court, so – what then?  What do you fall back to?

MR KNOWLES:   Just so I am clear about that first argument, your Honour, I understand your Honour’s position – we are not saying you would necessarily hold off until – that the Court would hold off until the Full Court had determined it, we are simply saying that there would be the benefit of some judicial consideration ‑ ‑ ‑ 

HER HONOUR:   Yes.

MR KNOWLES:   ‑ ‑ ‑ even if it were in the form of a first instance judgment.  I will just say that, but I understand your Honour’s indication in that regard.

HER HONOUR:   No, yes.  I am against you on – yes, I understand that ‑ ‑ ‑ 

MR KNOWLES:   I understand.

HER HONOUR:   ‑ ‑ ‑ and I am against you, so I am trying to understand what you then – what are you suggesting?  That the matter be referred to a single Judge of the High Court?  Is that what you are suggesting?  I could not quite follow.

MR KNOWLES:   Yes, that is the alternative position, that the matter be referred to a single Judge of the High Court for determination, including in respect of any issues arising that – any factual issues that may arise in the case, having regard to the nature of the first ground.

HER HONOUR:   Well, two matters strike me:  one, that I cannot imagine the parties are not able to agree the relevant facts, so it may well just be that directions should also be made for the parties to file a statement of agreed facts.  I mean, I could make directions that, you know, turn this into a kind of stated case about the proper construction of those provisions, but that would have to be done on agreed facts; or I simply could refer the whole thing – I am thinking of referring it to a Bench of three Judges, which seems to be, to me, more than adequate, but I would want the parties to agree the facts.  Then, the only other issue is, is the extension of time seriously opposed?

MR KNOWLES:   It is opposed, but I can say that my instructions are that there is no objection to it being dealt with at the same time as the substantive hearing.

HER HONOUR:   Okay.  All right.  I think that is probably the sensible way to deal with it, otherwise we end up with a staged hearing and it costs more money.  Now, if I take the plaintiff – and it may be that some further amendment is needed for these – but if I take the plaintiff’s proposed orders, which I assume you have, Mr Knowles?

MR KNOWLES:   Yes, I do, thank you, your Honour.

HER HONOUR:   It has been suggested by the Registry that the court book, which was provided for in order 2, coming in on 28 August, that a better way to deal with it is the court book needs to come in before the submissions.  So, if you stuck with this timetable, where the third order is

26 June, you would need to have the court book on something like 21 June, and then we would need to add the words, after “Court Book”, “in a form satisfactory to the Registrar”.  So, that is the main change to the submissions.

The only other one is that in order 3, you would have to add in the words “and a chronology”, so the plaintiff also provided the chronology.  But the issue with – and then you would delete order 5, because you would already have filed and served the court book earlier.  So, it should be court book, plaintiff’s submissions and chronology, et cetera, running on in a timetable.  The only thing that interferes with that is there should be an agreed statement of facts that comes before anything, and you have not allowed for that.  So, it seems to me that there should be an extra direction inserted, which is the new 2, which provides for the parties to confer and to file a statement of agreed facts, because there needs to be no disputed issue of fact in this matter.

We do not want to have any disputed issue of fact.  And then the timetable would then run off how long will it take for you to agree the relevant facts – step one – and then, a week or two after that you could put in your court book and then the submissions can flow.  I am content to leave it to the parties to confer after this to work out how long they need for an agreed statement of facts and then to rework the timetable between themselves and then to send the timetable, to file the agreed orders reflecting whatever it is you work out between yourselves on the basis that, obviously, if there is some failure of agreement, you can have liberty to restore.  How long would you need to confer and talk about working out this timetable?  I would assume you could work out the timetable today and set it up by 4.00 pm today?

MS COSTELLO:   Yes, your Honour.

MR KNOWLES:   I would be pretty confident of that myself, yes, your Honour, but if it is simply a matter of agreeing to dates, then I am sure that ‑ ‑ ‑ 

HER HONOUR:   It is just dates.  You just need to ‑ ‑ ‑ 

MR KNOWLES:   ‑ ‑ ‑ we will be able to accommodate one another in that regard.

HER HONOUR:   Okay.  So, it is building in a statement of agreed facts.  It has to be all facts that are in dispute, okay, you need to – you have to agree them.  We do not want to determine these kinds of factual issues.  And then – sorry, Ms Costello.

MS COSTELLO:   Yes, just one thing.  Now, as you have heard, my learned friend raised ground 1 as the area which might raise questions of fact.  What that is, is whether there was a failure to inquire about a minor.  Now, in the affidavit material filed by the applicant, the last document is the birth certificate which shows that the relevant person was a minor.  Following Nathanson, it is not necessary for the applicant to put on evidence showing what would have been said about that relationship.  So, it is a very simple proposition.  I cannot see any difficulty in agreeing a statement of facts, given that is the only identified area where facts might be in issue.  In those circumstances, it would be appropriate, in my submission, for your Honour to maintain the timeline that you have articulated ‑ ‑ ‑ 

HER HONOUR:   Okay.

MS COSTELLO:   ‑ ‑ ‑ but we should just leave blank a date to agree the statement of facts.  I am conscious of the fact that my client is a stateless Palestinian refugee in Lebanon, going blind due to the inability to have his stitches removed from his eyes, having had eye surgery shortly before his planned short trip to Lebanon, stranded there, unable to see three minor relatives and his de facto wife.  So, we are very keen to see this proceed as quickly as possible, and I am concerned not to allow any lag in the timetable, so that if we could just have the rest of the timetable set, and all we have to agree today is the agreed statement of fact, that would be most likely to achieve a swift outcome.

HER HONOUR:   Well, that does not seem unreasonable to me, Mr Knowles.  I mean, I would even be willing to – sorry, Mr Knowles, yes.

MR KNOWLES:   The only thing I should say is, as to agreed facts, the agreed facts are as to the material that was actually before the delegate at the time ‑ ‑ ‑ 

HER HONOUR:   Well, that should be easy, that one.

MR KNOWLES:   That is no issue, but the other issue as to the identity of the person, the relevant birth certificate does not seem to have the same name on it, it certainly was not before the delegate.  So – I mean, maybe we just agree on those matters and that is that.

HER HONOUR:   Well, it depends what the – it is a matter, really, for the plaintiff, in one sense, to say these are the facts we say we need to prove, and you either agree with them or you do not.  If you say, actually you need to prove more facts, well, you can – that is part of the debate, then, that can be had.  But I am quite willing to keep the timetable and refer it off today.

MR KNOWLES:   Yes.

HER HONOUR:   So, really it just needs to – let me see if I have a calendar – it just needs to come in before – we have suggested 21 June for the court book, which is just over two weeks – there is a little calendar, thank you.  So, really, you can do the agreed facts by 19 June.  That is plenty of time, is it not?

MS COSTELLO:   Yes, your Honour.

MR KNOWLES:   We do not have a problem with that timeframe as such, the only issue is whether or not the agreed facts should be done after the court book insofar as there might be court book references in the agreed facts, for convenience of the court and the parties, but we do not mind either way.

MS COSTELLO:   That would be preferable.

HER HONOUR:   That is preferable?

MS COSTELLO:   That is a good idea, may I say.  Yes, your Honour.

HER HONOUR:   Okay.  Well, I am quite happy to make an order 3, then.  So, order 1 will stay as it is, order 2 will be:

2.By 4.00 pm on 21 June 2023, the defendant file and serve a Court Book in a form satisfactory to the Registrar.

So, I have just added in those words.  Order 3 will stay as is, except we add in after the word “application” the words, “and a chronology”.  I mean, these will be sent to the parties.  I am just wondering – so, really, we need that to come in between the 21st and the 26th, because you want to be able to refer to the agreed statement of facts.  Well, why do we not just say by the 23rd?  Can you do the facts by the 23rd?  I mean, surely you can agree them without the court book references and then just slip those in?  I am trying to keep the timetable, that is all.

MS COSTELLO:   Yes, your Honour.  If we could just have until 26 June in order to give us the weekend, just in case there is some material that was before the decision‑maker that I am not aware of, I want to make sure I read the court book carefully.

HER HONOUR:   Okay.  Well, that is happy – I am fine with that.  So, why do we not add in a new order 3 that just says:

3.The parties are to confer and are to file a statement of agreed facts by 4.00 pm, on 26 –

So, it is the same time as your submissions, effectively, on 26 June 2023, and then order 3 will become order 4, et cetera.  As I say, we have added in the words “and a chronology”.  Order 4 can stay.  Order 5 can stay.  What was the new – “the defendant file and serve a court book”, that can come out, because it will already be served.  So, otherwise, it all stays the same.  Does that make sense?

MR KNOWLES:   Yes, your Honour.

HER HONOUR:   Okay.  All right.  Well, they are the orders, but if there are any factual disputes I will need to relist it for a further case management hearing, if we do not manage to get all the facts agreed – somehow that has to occur, whatever their scope might be.  All right.  Well, these orders will be entered today, and the parties will get a copy.  All right.  Anything else?

MS COSTELLO:   Your Honour, it may be beyond your knowledge, it may be a Registry matter, but with the timetable as it is envisaged, does your Honour have any – could your Honour give any indication as to when the Court might be able to hear the matter?

HER HONOUR:   I cannot.  I actually do not know, but we can make some inquiries for the parties and let them know when it might be possible to hear it.  I just do not know what is in the pipeline, but I understand the position of the person’s circumstances.

MS COSTELLO:   And those matters are in evidence, your Honour, in the – indeed, in the decision under review, the matters about his eyes and his status as a stateless refugee are in evidence.

HER HONOUR:   We will make sure that they are taken into account.

MS COSTELLO:   May it please the Court.

HER HONOUR:   I just do not know what is in the pipeline, so we will do our best, all right?  Is there anything else?

MR KNOWLES:   Not from us, thank you, your Honour.

HER HONOUR:   No.  All right.  Well, thank you.  We will make those – thank you.  Those orders will be made, as I have indicated, and we will adjourn.  Thank you.

AT 9.52 AM THE MATTER WAS ADJOURNED