Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs & Anor v Montgomery

[2022] HCATrans 38

[2022] HCATrans 038

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S192 of 2021

B e t w e e n -

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Appellant

MINISTER FOR HOME AFFAIRS

Second Appellant

and

SHAYNE PAUL MONTGOMERY

Respondent

KEANE J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 18 MARCH 2022, AT 9.00 AM

Copyright in the High Court of Australia

HIS HONOUR:   On 29 November 2021, the first appellant’s appeal against orders for the release of the respondent from detention made by Justice SC Derrington of the Federal Court of Australia on 15 November 2021 was removed to this Court pursuant to section 40(1) of the Judiciary Act1903 (Cth).

On 17 December 2021, the respondent filed an application seeking a temporary stay or deferral of the final listing of that appeal for hearing by the Full Court of this Court.

For the reasons that I now publish, I would refuse that application.  I direct that those reasons be incorporated into the transcript.

The orders are:

1.The application is refused.

2.The costs of the application are reserved.

I publish those orders.

On 15 November 2021, SC Derrington J of the Federal Court of Australia made orders in favour of the respondent to the proceedings in this Court (“Mr Montgomery”), including an order that a writ of habeas corpus issue, that an order in the nature of habeas corpus be made, and that Mr Montgomery be released from detention forthwith (“the habeas orders”).

On 25 November 2021, the first appellant (“the Minister”) appealed against, inter alia, the habeas orders to the Full Court of the Federal Court of Australia, raising questions as to the effect and correctness of this Court’s decision in Love v The Commonwealth[1].

[1](2020) 270 CLR 152.

On 29 November 2021, on the application of the Attorney‑General of the Commonwealth, the whole of the appeal was removed into this Court. This removal was effected as of right pursuant to s 40(1) of the Judiciary Act1903 (Cth). On that date, I gave directions to move the appeal towards a hearing by the Full Court of this Court.

On 17 December 2021, Mr Montgomery filed a notice of objection to the competency of the Minister’s appeal against the habeas orders.  It is contended that the Minister’s appeal is incompetent as an impermissible attempt to challenge an order for the issue of habeas corpus.  That objection had been foreshadowed at the hearing on 29 November 2021.

Not foreshadowed at that hearing was an application by Mr Montgomery, also filed on 17 December 2021, seeking a temporary stay or deferral of the final listing of the appeal for hearing by the Full Court of this Court until finalisation (“the stay application”), including upon judicial review and the finalisation of appeals to the courts, of the reconsideration by the Minister of the revocation of the cancellation of Mr Montgomery’s visa under s 501CA(4) of the Migration Act1958 (Cth) (“the revocation application”). It may be noted that on the hearing of the stay application on 15 March 2022, the stay or deferral sought by Mr Montgomery was narrowed to a stay of proceedings or a deferral of the hearing of the appeal until a date 28 days after the Minister’s decision whether or not to revoke the cancellation of Mr Montgomery’s visa.

The reconsideration by the Minister of the revocation decision had been ordered by SC Derrington J on 15 November 2021, concurrently with the habeas orders.  There is no appeal from her Honour’s orders in relation to the reconsideration by the Minister, but the Minister has yet to decide whether to revoke the cancellation of Mr Montgomery’s visa.

It is to be noted that Mr Montgomery’s application is not based on grounds, such as abuse of process, that are recognised as warranting a stay of proceedings. For Mr Montgomery, it was emphasised that he has, under the order of SC Derrington J, a legal right to reconsideration of the revocation decision in accordance with the law as soon as practicable. So much must, of course, be accepted; but the hearing of the appeal in this Court does not impede the exercise of that entitlement. And the existence of that entitlement is not itself a ground for staying or deferring the hearing of the appeal. It must also be recognised that the Minister asserts a right to have the appeal to this Court determined according to law, and that it is a matter of significant public interest that it should be determined without unnecessary delay. Subject to Mr Montgomery’s contention that the appeal is incompetent, the right that the Minister asserts to have the appeal determined is grounded ultimately in s 73(ii) of the Constitution.

Mr Montgomery’s contention that the Minister’s appeal is incompetent may properly be addressed to, and indeed can be decided only by, the Full Court of this Court.  The issue raised by this contention is itself an important issue, and there is no issue as to whether it is ripe for determination.  The question is whether there is good reason why the exercise of the Minister’s right should be deferred pending the pursuit of Mr Montgomery’s right.

It was said in support of Mr Montgomery’s application that if the Minister’s reconsideration of the cancellation of Mr Montgomery’s visa is resolved in his favour, the restoration of his visa would establish his entitlement to be at liberty in Australia whatever the outcome of the appeal.  It is said that the determination of the Minister’s appeal to this Court would, in that event, be rendered moot.

Mr Montgomery is at liberty by reason of the habeas orders and on no other basis.  Subject to Mr Montgomery’s argument as to competency, the Minister’s appeal is apt to determine whether he is lawfully at liberty.  Mr Montgomery will have no entitlement to be at liberty in Australia if the Minister’s appeal is allowed: his entitlement to be at liberty will cease, subject to the possibility that the revocation application may succeed.  To say that he will be at liberty, even if the Minister’s appeal is allowed, because of a subsequent decision in his favour in relation to the revocation application is distinctly not to say that his right to be at liberty cannot be affected by the outcome of the appeal.  As matters stand, the issues in the Minister’s appeal are not moot: the rights and obligations of the parties will be determined by the appeal.  Should the revocation be reconsidered favourably to Mr Montgomery, any question that consequently arises as to whether the appeal is moot may be addressed then.

It was also submitted on behalf of Mr Montgomery that I should, as a matter of broad discretion, accede to Mr Montgomery’s application for deferral because it is within the power of the Minister to resolve the possibility that the appeal might become moot in the future by making a decision on the revocation application and the Minister has taken longer than is reasonably required to decide that application.  I reject that submission.  I am not satisfied that the Minister can fairly be said to have been unreasonably dilatory in determining the revocation application.  On the evidence before me, those acting for Mr Montgomery have continued to provide the Minister with material which Mr Montgomery wishes to be considered in support of that application until as recently as 7 March 2022.

Insofar as the concern informing Mr Montgomery’s arguments seems to be that this Court should not waste public resources in a “rush to judgment” in the appeal in circumstances where the issues agitated in the appeal are supposedly within the control of one party and may (or may not) become moot, in my view, proceeding to hear the appeal will not involve a rush to judgment.

On Mr Montgomery’s behalf, reliance was placed on the observations of this Court in Mineralogy Pty Ltd v Western Australia[2], where it was said of the prudential approach to the determination of constitutional questions that “the necessity of answering the question of law to the judicial resolution of the controversy may not sufficiently appear where there remains a prospect that the controversy can be judicially determined on another basis”.

[2](2021) 95 ALJR 832 at 847 [60].

It must be understood that these observations were made in the context of a discussion of the utility of the special case procedure that has come to be the predominant means whereby this Court has resolved questions of the constitutional validity of legislation in proceedings commenced in its original jurisdiction[3].  Further, the prudential approach to the resolution of questions of constitutional law is a manifestation of the undesirability of formulating a rule of constitutional law broader than required by the precise facts to which it is to be applied and the premature interpretation of statutes on the basis of inadequate appreciation of their practical application[4].

[3]Mineralogy Pty Ltd v Western Australia (2021) 95 ALJR 832 at 846 [55].

[4]Mineralogy Pty Ltd v Western Australia (2021) 95 ALJR 832 at 846 [57]. See also 846 [58].

As a matter of principle, the considerations which inform the prudential approach to the determination of issues of constitutional law do not arise in this case.  The issues have come before the Court by way of appeal from the decision of SC Derrington J; her Honour’s reasons expose the constitutional question[5].  Those issues can only be resolved by this Court.  It may be the case that, as senior counsel for Mr Montgomery emphasised, the appeal will be decided on a ground other than a constitutional issue because of the application of the prudential approach discussed in Mineralogy; but the existence of that possibility is not a reason to refrain from hearing the appeal altogether.  Nothing in Mineralogy suggests otherwise.

[5]Montgomery v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1423 at [46]‑[51], [67]‑[68].

In practical terms, the hearing of this appeal does not involve a rush to judgment.  It should be clearly understood that the issue raised by Mr Montgomery’s application is not whether the hearing should be expedited (and certainly not whether it may pre‑empt the Minister’s reconsideration of the revocation decision).  Rather, the issue is whether the hearing of the appeal should be delayed because of the possibility of a favourable decision by the executive government.

Insofar as Mr Montgomery argues that the Minister’s appeal is being pursued with a degree of urgency that is either unnecessary or undesirable, having regard to Mr Montgomery’s right to a decision on the revocation application, it is pertinent to note here that the timetable for the steps towards the hearing of the appeal was fixed on 29 November 2021 taking into account the need to accommodate, as far as reasonably possible, the convenience of Mr Montgomery’s counsel.  Subject to the issue as to the competence of the appeal against the grant of habeas corpus, there was no suggestion when the timetable for steps leading to the hearing was fixed that the matter should not proceed to a hearing once the matter was ready for hearing.  As with any matter in which directions are made for the taking of steps by the parties toward the hearing of a matter in this Court, the common assumption of the Court and the parties is that, once the directions have been complied with, the matter will be heard when that is possible having regard to the orderly management of the Court’s list. 

A court’s duty is to hear and determine the cases that come before it[6].  There may be good reason, in the interests of justice and consistent with this fundamental obligation, to delay the hearing of a matter; but no such reason to delay hearing the appeal has been shown on Mr Montgomery’s application.

[6]Oceanic Sun Line Special Shipping Co Inc v Fay (1988) 165 CLR 197 at 233‑234; Australian Securities and Investments Commission v Edensor Nominees Pty Ltd (2001) 204 CLR 559 at 585‑586 [52], citing Ward v Williams (1955) 92 CLR 496 at 505‑506; Mitchell v The Queen (1996) 184 CLR 333 at 345‑346; Gould v Brown (1998) 193 CLR 346 at 458 [228].

Mr Montgomery has not made out a case for a stay of proceedings; and, I am not persuaded in this case that the interests of justice require the deferral of the hearing of the appeal from the time at which the Court is able to hear the matter in accordance with the ordinary exigencies of its docket.

Mr Montgomery’s application is refused.  The costs of the application should be reserved.

Adjourn the Court, please.

AT 9.01 THE MATTER WAS CONCLUDED