MIMIA v Al Khafaji, SHDB v Godwin & Ors, Behrooz & Ors v Secretary DIMIA & Ors

[2003] HCATrans 329

[2003] HCATrans 329

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  No A254 of 2003

B e t w e e n -

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Appellant

and

ABBAS MOHAMMAD HASAN AL KHAFAJI

Respondent

Office of the Registry
  Adelaide  No A253 of 2003

B e t w e e n -

SHDB

Appellant

and

PHILIPPA GODWIN, DEPUTY SECRETARY DEPARTMENT OF IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

First Respondent

JULIE HELEN KEENAN, ACTING DIRECTOR OF THE UNAUTHORISED ARRIVALS SECTION IN THE UNAUTHORISED ARRIVALS AND DETENTION DIVISION OF THE DEPARTMENT OF IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Second Respondent

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Third Respondent

Office of the Registry
  Adelaide  No A255 of 2003

B e t w e e n -

MAHRAN BEHROOZ

First Appellant

MAHMOOD GHOLANI MOGGADDAM

Second Appellant

DAVOOD AMIRI

Third Appellant

and

THE SECRETARY OF THE DEPARTMENT OF IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

First Respondent

THE ATTORNEY-GENERAL FOR THE COMMONWEALTH OF AUSTRALIA

Second Respondent

AUSTRALASIAN CORRECTIONAL MANAGEMENT PTY LTD

Third Respondent

AUSTRALASIAN CORRECTIONAL SERVICES PTY LTD

Fourth Respondent

Directions hearing

GUMMOW J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

FROM ADELAIDE AND MELBOURNE BY VIDEO LINK TO CANBERRA

ON MONDAY, 1 SEPTEMBER 2003, AT 2.24 PM

Copyright in the High Court of Australia

MR J.P. MANETTA:   If your Honour pleases, I appear for the appellant in the third matter.  (instructed by Jeremy Moore and Associates)

MS S.J. MAHARAJ:   If it please your Honour, I appear for the Minister in the first two matters and for the Attorney-General of the Commonwealth of Australia intervening.  (instructed by Australian Government Solicitor)

MS M.A. PERRY:   If it please your Honour, I appear for the first respondent and the second respondent in the third matter.  (instructed by Australian Government Solicitor)

MR S.W. TILMOUTH, QC:   May it please your Honour, I appear for the respondent in the Federal Court in the first matter.  (instructed by Jeremy Moore & Associates)

MS C.M. O’CONNOR:   May it please your Honour, I appear for the appellant in the second matter.  (instructed by Harndan Lawyers)

HIS HONOUR:   Now, I think it has been indicated that the dates set aside are 12 and 13 November.  It becomes a question of organising the argument in a way that is convenient to everybody in the Court.  Now, Mr Tilmouth and Ms O’Connor, your interests more or less coincide, do they not?

MR TILMOUTH:   They do, your Honour, yes.

MS O’CONNOR:   I agree with that, your Honour.

HIS HONOUR:   But you are on opposite sides, as it were, of the appeals.  Would the proposal be that you will carry the burden in the first instance of the argument against the Minister in those two appeals?

MR TILMOUTH:   Yes, we certainly will be doing that, your Honour.

HIS HONOUR:   And Ms O’Connor would follow you?

MR TILMOUTH:   Yes, your Honour.

HIS HONOUR:   Yes.  On the Minister’s side of the record – I do not know – Ms Maharaj and Ms Perry, is it proposed, do you know, that the Solicitor will appear for the interests of the Commonwealth in all those matters?

MS MAHARAJ:   Yes, your Honour.

HIS HONOUR:   Though he may have different juniors.

MS MAHARAJ:   That is correct, your Honour.

HIS HONOUR:   Yes, thank you.  Has there been any indication yet, does any party know, of any proposed interventions?

MS MAHARAJ:   No, your Honour, we have not heard from anybody at this stage.

HIS HONOUR:   Have you, Mr Tilmouth?

MR TILMOUTH:   No, not anything formal, if the Court pleases.

HIS HONOUR:   What about informal?

MR TILMOUTH:   It is suggested there might one or two interventions from State Attorneys, possibly supporting the Al Masri decision, but I cannot be very categorical about that, your Honour.

HIS HONOUR:   Yes, I see.

MR TILMOUTH:   No, I think the Court should proceed on the basis that it is likely that there would be some interventions, but just how many is not known.

HIS HONOUR:   Yes, thank you.  Now, what the Court has at the moment in the first two matters is the record as it presently exists in the Federal Court, which is not all that extensive.  Is anyone here today who was in the Federal Court at first instance?  You were in the Federal Court at first instance?

MS O’CONNOR:   In my matter, your Honour, I was.

HIS HONOUR:   Yes.  Was the record very voluminous?

MS O’CONNOR:   In our matter, there were two first instance hearings, which we then appealed jointly and the ‑ ‑ ‑

HIS HONOUR:   I am just worried about the evidence.  I am worried about how big the appeal books are going to be.

MS O’CONNOR:   Well, we were discussing that before we came into Court today.  The evidence really related to a matter that may not concern the Court and that is the question of whether the applicant could be repatriated.  The conclusion was that there was no likelihood of repatriation.  The issue that is then before this Court is whether that means the Migration Act allows for continuing detention of someone in that category.

Now, all the evidence that was before the Federal Court initially related to that first question, is there a prospect, and it may be that this Court does not need to bother itself with the transcript.  In particular, in SHDB we had oral evidence given and cross‑examination on that evidence that went for a few hours and that would not need to be considered by the Court.

HIS HONOUR:   Well, yes, but your opponents may want to challenge the finding, I suppose.

MS O’CONNOR:   There has been no application in relation to the finding.  It is just a question then of whether continuing detention is authorised under the legislation.

HIS HONOUR:   Is that right, Ms Maharaj?

MS MAHARAJ:   That is correct, your Honour.  There is no challenge to the findings of the fact and the appropriate findings are contained in the relevant decision.

HIS HONOUR:   Thank you.  It looks as if the appeal record will not be that difficult to compile in the time, that is what I had in mind.  Thank you.  Just pardon me a minute.  This is what I suggest for your consideration:  one, the respondent in the first matter that is listed and the appellants in matters 2 and 3 file and serve their submissions on or before 19 September;  two, the Minister – by which I intend to include the Commonwealth – file and serve his submissions on or before 10 October; three, any applications for leave to intervene or notice of any intervention as of right with supporting submissions be filed and served on or before 24 October; and lastly, replies by the parties listed in order 1, including any necessary response to the interventions, and any further submissions by the Minister necessitated by the interventions be filed and served on or before 31 October; with liberty to apply on three days notice; certify for counsel and costs of today be costs in the respective appeals. 

The proposal would be then that the submissions would go together, yoking the three of them together as indicated.  Now, does anyone want to say anything about that?  Would you like a minute to consult?

MS PERRY:   Your Honour, I had a separate matter which I wished to raise with the Court, which relates to the scope of the appeal in the Behrooz matter.  As your Honour would be aware, in that matter the application for special leave was allowed in respect of the decision of the Full Court ‑ ‑ ‑

HIS HONOUR:   That is right.

MS PERRY:   ‑ ‑ ‑  refusing leave to appeal.  As the Solicitor‑General intimated at the hearing of the application, the Secretary of the Department wished to preserve his right with respect to the filing of the notice of contention, in the event that the High Court should find that the Full Court erred in refusing leave to appeal.  The orders which are sought presently in the notice of appeal not only seek to overturn the Full Court’s decision refusing leave, but also seek orders on the appeal itself, in the event that the Court should find that leave should have been granted.

HIS HONOUR:   Yes.

MS PERRY:   The difficulty then is a procedural one.  What the Minister is proposing to do is to file a draft notice of contention and if the Court remains of the view as it indicated on the application for special leave to remit that matter back to the Full Court rather than to deal with it itself, then that would be the appropriate process for dealing with that.  Otherwise, the orders could be made whereby the Minister would file notices of contention and then the submissions dealing with the width of the subpoenas, the non‑constitutional issue raised by that notice could be dealt with the High Court at the same time as it deals with the ‑ ‑ ‑

HIS HONOUR:   Yes, that is just a question, I think, of you filing your notice of contention in that appeal, is it not?

MS PERRY:   Yes, your Honour.  I suppose the issue relates then to whether or not the written submissions should address the issues raised on the notice of contention or whether it contends that that matter be remitted so that the issues will be kept discrete with the constitutional point. 

HIS HONOUR:   I think you had better cover yourself.

MS PERRY:   We will do that in that event and we will be filing ‑ ‑ ‑

HIS HONOUR:   Yes, because I would not want to foreclose any possibility like that.

MS PERRY:   No.  We were concerned to ensure that the rights ‑ ‑ ‑

HIS HONOUR:   Yes, I understand.  I am grateful for what you have said.

MS PERRY:   Thank you.

HIS HONOUR:   Is there anything else?  Now, it would be for the private parties, if I can use that expression, to work out between themselves the order in which they go first in terms of addressing and so on, Mr Tilmouth,

Ms O’Connor and Mr Manetta, but that could be done, I dare say, in advance of 12 November.  All right.  Is there anything you want to say, Mr Manetta?

MR MANETTA:   No, there is not, your Honour.

HIS HONOUR:   All right, I will give those directions, which I will read again:

1.        The respondents in matter No 1 listed today and the appellants in matters 2 and 3 listed today file and serve their written submissions on or before 19 September;

2.        The Minister file and serve his written submissions on or before 10 October – and I include within that the Secretary in the last matter;

3.        Any applications for leave to intervene or notice of any intervention as of right with supporting submissions be filed and served on or before 24 October;

4.        Replies by the parties identified in order 1, including in those replies any responses to the submissions by interveners or proposed interveners, together with any further submissions by the Minister in response to the proposed interventions or interventions, be filed and served on or before 31 October;

5.        Liberty to apply on three days notice;

6.        Certify for counsel;

7.        Costs of today be costs of the respective appeals.

I have not made specific provision in there for the notice of contention mentioned by Ms Perry but I think that the Rules can pick that up.  Is there anything else?

MR MANETTA:   No, your Honour.

MS PERRY:   No, your Honour.

HIS HONOUR:   We will now adjourn.

AT 2.40 PM THE MATTERS WERE CONCLUDED