Jaffarie v Director General of Security and Ors

[2013] HCATrans 289

[2013] HCATrans 289

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney   No S191 of 2013

B e t w e e n -

SAYED AKBAR JAFFARIE

Plaintiff

and

DIRECTOR GENERAL OF SECURITY

First Defendant

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Defendant

MIGRATION REVIEW TRIBUNAL

Third Defendant

Summons

BELL J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON THURSDAY, 14 NOVEMBER 2013, AT 9.38 AM

Copyright in the High Court of Australia

MR S.E.J. PRINCE:   May it please the Court, I appear for the plaintiff, pro bono.  (instructed by SBA Lawyers)

MS A.M. MITCHELMORE:   If the Court pleases, I appear for the first and second defendants.  (instructed by Australian Government Solicitor)

HER HONOUR:   Yes, Mr Prince.

MR PRINCE:   Thank you, your Honour.  This is a matter in the original jurisdiction of the Court and submissions have been filed as to the proposed next steps.  There does not seem to be any issue taken by the respondent with the particular steps identified by the applicant, but rather there is a proposed alternative course of action by the respondent which is to remit part of the matter to the Federal Court to be dealt with.

HER HONOUR:   Yes.

MR PRINCE:   In my submission, that is not appropriate for several reasons.  First of all, there will not be any contested issue of fact in this matter.  It really turns on a construction of the legislation and the consequences of that.  This is not the forum for Mr Jaffarie to ventilate or to explore whether or not the facts represented in the security assessment were indeed true.  He will not have that opportunity here but the matter will have to proceed on the basis of what has been determined by ASIO, which will be before the Court and is very short in compass.  The respondent takes the point that three out of the five decisions which are the subject of challenge cannot be dealt with by the Federal Court and can only be dealt with by this Court, so that ‑ ‑ ‑

HER HONOUR:   They, as it were, stand or fall, do they not, on the first decision?

MR PRINCE:   They do.

HER HONOUR:   So in the circumstances the suggestion that the defendant makes that the determination respecting the first decision is the relevant one has some force to it?

MR PRINCE:   It does indeed, your Honour, but the difficulty for my client will be that if he is successful in the Federal Court he will not be able to obtain relief from the Federal Court in relation to the decisions which are operative and which are keeping him in detention.  So that he will either have to have consent from the respondent to have this Court make consequential orders, and there is no indication that they would take that approach – I do not know what approach they might take at the end of a contested hearing in the Federal Court – but he will then have, even if he is

successful in the Federal Court, will have to then face a further step of obtaining the relief that would be necessary.

HER HONOUR:   Yes.

MR PRINCE:   So in the circumstances where there would be no, in my submission, inconvenience to this Court with dealing with the matter, because it is not a factual case, it is really an issue of law, and there would be great inconvenience for the applicant in facing two sets of litigation instead of one if the matter is split, with all of the consequent problems of splitting a matter, including whether or not the Federal Court has to stay out of the field of looking at any aspect of the case that might traverse those three decisions, it would be most efficient to deal with the matter here. 

I do not think it would take very long on any view, perhaps a day, but the matters, although short, are of obvious great national significance because the definition of “security” for the purposes of the coercive powers of a State within the ASIO Act and the consequence of potential indefinite detention upon the making of those assessments is a matter of the highest national significance which would be appropriate to be dealt with in this Court, your Honour.

HER HONOUR:   Thank you, Mr Prince.  Ms Mitchelmore.

MS MITCHELMORE:   Your Honour, as my friend indicated, we have set out an alternative course in our submissions for directions.

HER HONOUR:   Yes.

MS MITCHELMORE:   The reason for doing so was that it appeared to my clients that that would be an appropriate course in circumstances where the three decisions which had to be dealt with by this Court really stand or fall on the first decision and that decision and the fifth decision are both appropriate for remittal to the Federal Court.

HER HONOUR:   Yes.

MS MITCHELMORE:   So, although my friend says it is splitting the matter ‑ ‑ ‑

HER HONOUR:   There really is one issue, is there not?

MS MITCHELMORE:   That is correct, your Honour, yes.

HER HONOUR:   Nonetheless, Mr Prince points to the circumstance that were the matter determined in the Federal Court in his favour, there would then remain further steps to be taken in this Court and his client is in detention.  What do you say to that?

MS MITCHELMORE:   Your Honour, I cannot say whether or not my client would appeal or not appeal a Federal Court decision if my friend’s client was successful in the hearing, but in the event that there was not an appeal, as I indicated, I think, in the submissions it is likely that a consent position could be reached in the event that my clients decided not to appeal the Federal Court decision and alleviate any need for any further hearing in this Court.

HER HONOUR:   In the circumstances in which there is unlikely to be any factual issue in dispute, what do you say to Mr Prince’s submission that it is appropriate for the matter to remain in this Court?

MS MITCHELMORE:   Your Honour, the submission is neutral in a way - in my submission it would be equally appropriate for it to go to the Federal Court and be heard in the Federal Court.  Again, the hearing could be, if there is no contested issue of fact – I know my friend’s submissions as to a timetable for an agreed statement of facts to potentially be reached but if there is no dispute then the Federal Court should be able to accommodate that on a hearing.

HER HONOUR:   Yes.  Mr Prince, in the ordinary course, one would have thought this was a suitable matter to remit to the Federal Court.

MR PRINCE:   The difficulty is, your Honour, that – I accept my friend says that we would likely be able to reach a consent position on the remaining matters even if my client were successful in the Federal Court but there is no undertaking or certainty about that position whatsoever.  So that even – and the point is not that we might face the prospect of an appeal to this Court, but rather even if the matter is dealt with in the Federal Court it will not deal with the whole of the matter so there will be things to remain. 

As to it being neutral that it is not a fact‑heavy case, it may be neutral but it must always be remembered that my client commenced proceedings in this Court, not in the Federal Court, and to be removed to the Federal Court is an indulgence which the respondent seeks to – in circumstances where there is no compelling or good reason for sending the matter to the Federal Court because it will not save any time, it will not deal with the usual concern for this Court which is dealing with factual matters with only seven Judges.  It does not have any of those features that would interrupt the status quo which is that the matter is pending in this Court.

HER HONOUR:   Yes.  Anything further, Ms Mitchelmore?

MS MITCHELMORE:   I should note though, your Honour, that one of the three decisions that has to remain in this Court – I think I have made the point in my written submissions – I think it is the third decision – is one, of course, which was heard and dealt with by the Tribunal.  So looking at my written submissions, your Honour, paragraph 1c.

HER HONOUR:   Yes.

MS MITCHELMORE:   So the decision to refuse the permanent visa.  That, of course, was then dealt with by the Tribunal.  There is a question, in my submission, as to whether that decision not being operative should remain as part of the proceedings in any event leaving effectively two of those decisions.

HER HONOUR:   It remains that absent consent the matter would have to come back to this Court for the final disposition of the proceedings in the event the plaintiff were successful before the Federal Court.

MS MITCHELMORE:   It would, your Honour, but in circumstances where, as I say, I cannot say one way or the other what my clients’ position would be in relation to the Federal Court’s decision.

HER HONOUR:   Yes.

MS MITCHELMORE:   But in the event that the plaintiff was successful, there would need to be final determination but in circumstances where the plaintiff’s success in the Federal Court would, in effect, determine those three decisions I submit there would not be any need for a hearing as such.

HER HONOUR:   Yes, I understand that, Ms Mitchelmore.

MS MITCHELMORE:   Yes.

HER HONOUR:   Mr Prince, the matter may not be a fact‑heavy case, but there are considerations respecting the efficient conduct of litigation in this Court that do not mean that every time a person chooses to commence in the original jurisdiction the Court ought operate on the basis that remittal is an indulgence.  Rather, it does promote the efficient conduct of proceedings.  In the circumstances and taking account of the matters raised by Ms Mitchelmore, my determination is to accede to the defendants’ application and remit the proceedings to the Federal Court.

MR PRINCE:   Thank you.  May it please, your Honour, your Honour is remitting part of the proceedings, as I understand it.

HER HONOUR:   Yes, I am, indeed.  It is, I think, clear whilst there may be a doubt respecting the appropriateness of any relief in relation to the decision of the first defendant made on 25 June 2013 to refuse the application for Partner (Migrant) (Class BC) visa, certainly the decisions of the – I am sorry, I think I may have referred wrongly to the first defendant – the decision of the second defendant, I should have said, in the reference to the decision of 25 June 2013, it is plain the decisions of the second defendant of 19 June 2013 and of the Tribunal made on 26 August 2013 are not amenable to remitter.

MR PRINCE:   Yes, your Honour.

HER HONOUR:   I take it you do not require reasons, Mr Prince.

MR PRINCE:   No, your Honour, no, of course not.

HER HONOUR:   In this matter I make the following orders: 

1.The challenge to the security assessment made by the first defendant in respect of the plaintiff dated 17 June 2013 and the challenge to the decision of the second defendant made personally on 25 September 2013 to refuse the plaintiff’s application for a Bridging E (Class WE) Visa pursuant to section 501(1) of the Migration Act 1958 (Cth) be remitted to the Federal Court of Australia, New South Wales District Registry pursuant to section 44(1) of the Judiciary Act.

2.That part of the matter referred to in Order 1 proceed in the Federal Court as if the steps taken in the matter in this Court had been taken in the Federal Court.

3.The remainder of the matter be stood over pending the outcome of the proceedings in the Federal Court.

4.The Deputy Registrar of this Court forward to the proper officer of the Federal Court photocopies of all documents filed in this Court.

5.The costs of the summons filed by the plaintiff on 30 October 2013 be costs in the cause.

Yes, thank you both.

MS MITCHELMORE:   Thank you.

MR PRINCE:   If the Court please.

AT 9.51 AM THE MATTER WAS CONCLUDED