LQZW v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 372
•18 April 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
LQZW v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 372
File number(s): SYG 654 of 2024 Judgment of: JUDGE STREET Date of judgment: 18 April 2024 Catchwords: MIGRATION – Writ for Habeus Corpus – pending decision of High Court of Australia in ASF17- s78B notice- reasonable time- short adjournment Legislation: Judiciary Act 1903 (Cth)
Migration Act 1958 (Cth)
Cases cited: Adam v Secretary of Department of Home Affairs [2024] FedCFamC2G 179
Australian Competition & Consumer Commission v C G Berbatis Holdings Pty Ltd [1999] FCA 1151
David v Secretary of Department of Home Affairs [2024] FedCFamC2G 178
NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37
Division: Division 2 General Federal Law Number of paragraphs: 8 Date of hearing: 18 April 2024 Place: Sydney Counsel of the Applicant: Ms L Geddes Solicitor for the Applicant: Human Rights for All Counsel for the Respondents: Mr G Johnson Solicitor for the Respondents: Australian Government Solicitor ORDERS
SYG 654 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: LQZW
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
SECRETARY OF THE DEPARTMENT OF HOME AFFAIRS
Second Respondent
ORDER MADE BY:
JUDGE STREET
DATE OF ORDER:
18 APRIL 2024
THE COURT ORDERS THAT:
1.The applicant hereafter be known by to the pseudonym LQZW.
2.Directs that the Court file be is to be renamed in accordance of the pseudonym, and there is to be no publication or disclosure by any person that has attended this hearing of the name of the applicant until further order pursuant to s 230 and s 231(c) of the Federal Circuit and Family Court of Australia Act 2021 (Cth).
3.The matter is fixed for a Final Hearing commencing at 10:00AM on 7 May 2024 via video and/or audio-link pursuant to Part 6 Division 6 of the Federal Circuit and Family Court of Australia Act 2021 (Cth).
4.The respondents are directed to file and serve a copy of any s 78B of the Judiciary Act 1903 (Cth) notice on which the respondent wish to rely upon by close of business on 22 April 2024.
5.The respondents are directed to file and serve an affidavit as to service on the relevant parties under s 78B notice on or before 24 April 2024.
6.The respondents are directed to file and serve any evidence they wish to rely upon on or before close of business on 1 May 2024.
7.The applicant is directed to file and serve any further evidence that the applicant wishes to rely upon on or before 3 May 2024.
8.Directs the respondent file and serve their outline of submissions on or before 1 May 2024.
9.Directs the applicant file and serve their outline of submissions on or before 3 May 2024.
10.The parties are directed to file and serve an agreed statement of facts and issues on or before 6 May 2024.
11.The orders made on 11 April are vacated.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE STREET
These proceedings were commenced on 11 April 2024 by the applicant seeking an order in the nature of a writ of habeas corpus for his release, based on an assertion of exhaustion of the legitimate purposes of detention under the Migration Act 1958 (Cth), along the same lines as identified in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37 (“NZYQ”). In the decision of NZYQ, there was discussion about a possible qualification to the detention becoming unlawful where there was a lack of cooperation. That issue was heard yesterday, 17 April 2024, by the Full Courtin the High Court of Australia in the matter of ASF17 v Commonwealth of Australia (“ASF17”). The transcript is not yet available. It is apparent from the outlines of argument that there was agitation as to whether that qualification has application and the scope of that application in respect of the lawfulness of the detention.
In the present case, there is an affidavit by the solicitor for the applicant that identifies that there have been occasions where the applicant has requested voluntary removal and then withdrawn his request for a removal from Australia. The characterisation of those facts and whether they fall within a want of cooperation is not a matter for the Court to determine on this occasion. It is sufficient to identify that there is a real potential application of the decision in ASF17 impacting on the decision in the present case because of that withdrawal of request for removal, which on one view appears to be the current state of affairs, and the extent to which that falls within the factual characterisation of the exception to the detention being unlawful where there is no reasonable prospect of compliance with the two statutory purposes identified in the decision of NZYQ. Again this Court has made no finding at this stage on that factual characterisation or the prospect of compliance with the two statutory purposes.
When the matter came before the Court, it appears that there were orders made with input from the respondents fixing the matter for hearing before this Court today. At the time those orders were made, it is not apparent that there was any reference to whether there was a constitutional question. It is, however, apparent that the applicant, with input from the respondents, has had served a purported notice dated 16 April 2024 under s 78B of the Judiciary Act 1903 (Cth) (“Judiciary Act”). That s 78B notice, given the tentative language “claim there is a dispute” does not meet the criteria identified by the learned French J, as he then was, in Australian Competition & Consumer Commission v C G Berbatis Holdings Pty Ltd [1999] FCA 1151 at [14], which makes clear the notice must adequately identify the character of the matter raised under the Constitution or involving its interpretation. On one view the applicant’s s 78B notice does not do so.
Mr Johnson, on behalf of the respondents, foreshadowed that there was further deliberation being given to whether there should be a notice under s 78B served by the respondent. The respondent is a model litigant and the respondent raising the possibility of a further s 78B notice, which requires appropriate input, ordinarily from the Solicitor-General, is not a matter that can be done overnight, and nor, if it is done, is a reasonable time to respond the current hearing date that was fixed for today.
The Court is of the view that it is proper to give the respondent an opportunity to serve a notice under s 78B of the Judiciary Act. Ms Geddes, on behalf of the applicant, emphasised the importance of the nature of the proceedings for the writ of habeas corpus and made reference to another matter involving an Iranian citizen that was the subject of commencement of proceedings last week and a determination by a judge of this Court yesterday, see GMZ18 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 335: Cf Adam v Secretary of Department of Home Affairs [2024] FedCFamC2G 179 at [21]; David v Secretary of Department of Home Affairs [2024] FedCFamC2G 178 at [21]. .
Ms Geddes is entirely correct that the matter in respect of which relief of the nature being sought in the present case is raised before the Court is treated as an urgent matter. This Court, however, has many urgent matters, including parenting matters. Ms Geddes sought to ask the matter be referred to the duty judge. There would be no purpose in doing so, as currently I am the duty judge. Ms Geddes asked for an earlier date. It is not realistic for an earlier date to provide a reasonable opportunity for the response to a s 78B notice, nor in the circumstances would it be appropriate to preclude the respondents from the opportunity to adduce evidence on the factual issue raised in respect of whether the detention is now unlawful.
This is not a case where the applicant has put on affidavit evidence himself as to his circumstances, but rather, there has been filed an affidavit by the solicitor. There may be matters that the applicant, in light of what was said in ASF17, may have wished to address. Notwithstanding that, Mr Johnson identified that he was content to put on his affidavit evidence regardless of whether there was a potential splitting of case in that the evidence of the applicant may not be truly in reply. That was a practical and sensible approach adopted on behalf of the respondent and permits the matter to be a subject of an expedited timetable and an expedited hearing in accordance with the orders that the Court has made.
The Court is satisfied that purporting to engage in the final hearing today would not be in accordance with the interests of the administration of justice, would be contrary to the opportunity required to be given under s 78B of the Judiciary Act, and would be precluding the first respondent a reasonable opportunity of putting on any relevant evidence in respect of the factual issues. The fact that there was an expedited timetable that might have permitted earlier adducing of evidence does not persuade the Court that a further opportunity should not be afforded to the respondent. This is particularly so in light of the Court being informed by Mr Johnson that there was substantial matter that the first respondent wished to adduce. It is for these reasons the Court made the orders pronounced.
I certify that the preceding eight (8) numbered paragraphs are a true copy of the Ex-Tempore Reasons for Judgment of Judge Street. Associate:
Dated: 29 April 2024
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