Khan v Minister for Home Affairs & Anor

[2020] HCATrans 134

[2020] HCATrans 134

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S74 of 2020

B e t w e e n -

HAIDER KHAN

Plaintiff

and

MINISTER FOR HOME AFFAIRS

First Defendant

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Defendant

BELL J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 8 SEPTEMBER 2020, AT 9.32 AM

Copyright in the High Court of Australia

HER HONOUR:   The plaintiff filed an application for constitutional or other writ on 14 May 2020.  For the reasons to be given the orders of the Court are:

1.Pursuant to section 44(i) of the Judiciary Act 1903 (Cth) this proceeding is remitted to the Sydney registry of the Federal Circuit Court of Australia.

2.The proceeding continue in the Federal Circuit Court of Australia as if any steps taken in the High Court of Australia had been taken in the Federal Circuit Court of Australia.

3.The Registrar of the High Court of Australia is to forward to the proper officer of the Federal Circuit Court of Australia a copy of all documents filed in the High Court of Australia.

4.The costs of the proceedings in the High Court of Australia be costs in the cause in the Federal Circuit Court of Australia.

I publish my reasons and those orders.

The plaintiff is in immigration detention.  On 14 May 2020, the plaintiff commenced proceedings in this Court’s original jurisdiction against the Minister for Home Affairs, the first defendant, and the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, the second defendant.  The plaintiff makes the following claims for substantive relief:  (1) habeas corpus to secure his release from the immigration detention facility; (2) in the alternative to (1), habeas corpus to secure his release from immigration detention; (3) prohibition to prevent his detention in the immigration detention facility; (4) an injunction to prevent the defendants from continuing to detain him at the immigration detention facility; (5) an injunction preventing the defendants from restraining him from exercising his residual liberty; and (6) mandamus requiring the defendants to make a determination that the plaintiff “reside in a community residence to be specified, whether as a residence determination or otherwise as a community based APOD”.  The latter, an acronym for “alternative place of detention” recognises that a person may be held in immigration detention in a place approved by the Minister in writing[1].

[1]Migration Act 1958 (Cth), s 5(1) definition “immigration detention”.

In their response, the defendants submit that the application does not disclose an arguable basis for any of the relief sought and that it should be dismissed pursuant to r 25.09.1 of the High Court Rules 2004 (Cth) (“the Rules”). The claims for relief, and the arguments in support of them, are in like terms to claims that have been dismissed as untenable by Keane J, Edelman J and me[2].  But for one factual issue which may bear on the relief claimed in prayer (2) of the plaintiff’s application, I would have dismissed the application for the same reasons as in Hussein v Minister for Home Affairs[3].

[2]Sabanayagam v Minister for Home Affairs [2020] HCATrans 119 (26 August 2020); Pirkoohi v Minister for Home Affairs [2020] HCATrans 120 (26 August 2020); Palasingam v Minister for Home Affairs [2020] HCATrans 121 (26 August 2020); Kanhalingam v Minister for Home Affairs [2020] HCATrans 122 (26 August 2020); Mahamede v Minister for Home Affairs [2020] HCATrans 125 (1 September 2020); Khan v Minister for Home Affairs [2020] HCATrans 126 (1 September 2020); Kazemi v Minister for Home Affairs [2020] HCATrans 124 (1 September 2020); Selvarasa v Minister for Home Affairs [2020] HCATrans 133 (8 September 2020); Hussein v Minister for Home Affairs [2020] HCATrans 132 (8 September 2020).

[3][2020] HCATrans 132 (8 September 2020).

By contrast with the relief claimed in prayers (1), (3), (4), and (5), which challenge the conditions of the plaintiff’s detention, the relief claimed in prayer (2) is with respect to the lawfulness of the detention itself. Section 198(1) of the Migration Act 1958 (Cth) (“the Act”) imposes a duty to remove from Australia as soon as reasonably practicable an unlawful non‑citizen who asks the Minister in writing to be so removed. In his affidavit sworn on 23 April 2020, the plaintiff states that he wrote a handwritten letter to the Minister on 20 October 2019, in which he stated that if he was not to be released from detention, he would rather be sent back to Papua New Guinea. The defendants dispute the making of such a request. The parties have not addressed the significance of any finding that a request for removal complying with s 198(1) of the Act was made, and not acted upon, before the onset of the COVID‑19 pandemic.

The defendants seek to challenge the evidentiary foundation for the plaintiff’s contentions and submit that if the proceeding is not dismissed it should be remitted to the Federal Circuit Court. The plaintiff opposes remitter contending, among other things, that pursuant to s 494AB of the Act, no other court has jurisdiction to hear the matter.

Section 494AB provides that certain proceedings against the Commonwealth may not be instituted or continued in any court. Subsection 494AB(3) provides that nothing in the section is intended to affect the jurisdiction of this Court under s 75(v) of the Constitution. Accepting without deciding that the proceeding is within one of the categories set out in s 494AB(1) and that the provision is a jurisdictional requirement, it does not limit the power of this Court to remit the matter pursuant to s 44(1) of the Judiciary Act 1903 (Cth) to the Federal Circuit Court[4], which under s 476 of the Act is given the same original jurisdiction as this Court subject to certain exceptions. The relief that is claimed relates to one or more “migration decisions” under ss 189(1) and 198(1) of the Act. The claim for a writ of habeas corpus, which might equally have been brought as a claim for an injunction, may be seen as necessary for the effective operation of s 75(v) of the Constitution. It follows that neither of the “jurisdictional hurdles” under s 476(1) of the Act is engaged[5].

[4]Plaintiff S156/2013 v Minister for Immigration and Border Protection (2014) 254 CLR 28 at 41‑42 [20] per French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ; Mohebi v Minister for Home Affairs [2020] HCA Trans 098 (17 July 2020) per Bell J; Mokhlis v Minister for Home Affairs [2020] HCA 30 at [7] per Edelman J.

[5]Mokhlis v Minister for Home Affairs [2020] HCA 30 at [10]‑[14] per Edelman J.

In circumstances in which resolution of the proceeding requires the determination of disputed questions of fact, I consider the interests of the administration of justice to plainly favour remittal.

For these reasons there will be the following orders:

1.Pursuant to s 44(1) of the Judiciary Act 1903 (Cth), this proceeding be remitted to the Sydney Registry of the Federal Circuit Court of Australia.

2.The proceeding continue in the Federal Circuit Court of Australia as if any steps taken in the High Court of Australia had been taken in the Federal Circuit Court of Australia.

3.The Registrar of the High Court of Australia is to forward to the proper officer of the Federal Circuit Court of Australia a copy of all documents filed in the High Court of Australia.

4.The costs of the proceedings in the High Court of Australia be costs in the cause in the Federal Circuit Court of Australia.

AT 9.33 AM THE MATTER WAS CONCLUDED