Minister for Immigration v Abdi

[2000] HCATrans 54

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S156 of 1999

B e t w e e n -

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Appellant

and

ABDULLAH SHEIKH MOHAMED ABDI

Respondent

GLEESON CJ
GAUDRON J
McHUGH J
GUMMOW J
KIRBY J
HAYNE J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 29 FEBRUARY 2000, AT 10.17 AM

Copyright in the High Court of Australia

MR J. BASTEN, QC:   I appear with MR N.J. WILLIAMS for the appellant in this matter, if your Honours please.  (instructed by the Australian Government Solicitor)

MR T.A. GAME, SC:   I appear with MR S.J. GAGELER for the respondent, if the Court pleases.  (instructed by Ron Kessels)

GLEESON CJ:   Mr Basten, Mr Game has indicated to us that he has been instructed by his client to submit that there should be a revocation of the order for special leave.  What do you say about that?

MR BASTEN:   Your Honour, that arises out of the fact that Mr Abdi is no longer in the country, as I understand it.  We put some submissions, both in our original written submissions and we gave the Court some further short submissions yesterday, on that point.  Our propositions are shortly these.  There remains an outstanding application to be determined in accordance with the statutory procedure.  The way in which that is determined will depend upon the circumstances at the time it falls for determination.

If Mr Abdi is no longer in the country, he will not be granted a protection visa because he would no longer be eligible.  The fact that he is not in the country at the moment is not of any immediate statutory significance.  We say that the issue which is raised by the case is still a matter of general public importance.  We accept that this Court would as a discretionary matter be entitled to decline to consider it if it thought appropriate.  We do not see any constitutional issue arising.

Our final point really is that, given that it is a discretionary matter and given that it will be necessary, I think, for the purpose of the other case to refer to the reasoning of the Full Court in Abdi, it might be a matter which this Court would determine after it has heard argument.

GLEESON CJ:   It is not just the fact that he is absent from the country, he is not temporarily absent on business.  The circumstances in which he is absent from the country are material, are they not?  Is there any realistic possibility that he will return?

MR BASTEN:   I am not able to comment on that, your Honour.  We know that he departed voluntarily and that he was scheduled to return to Somalia.  Whether he did or not we have no knowledge of.  We do not know where he is at the present, we do not know where his family is.  I am simply not in a position to comment on that, your Honour.

KIRBY J:   You can refer to the decision without having this case before us.  I mean, the decision is a matter of public record.

MR BASTEN:   Indeed, and to the extent that it is necessary, I suppose I can also refer to the Tribunal’s decision in so far as that is useful to elucidate what the Full Court was saying.  It is not a matter on which obviously I would take significantly longer if both cases were heard together than if only one were heard.

GLEESON CJ:   Perhaps Mr Game could tell us more about the circumstances in which his client is out of the country.  As I understand it, he has gone back home.

MR GAME:   Well, according to the affidavit that appears in the appeal book from Andras Markus, he has gone back to Somalia.  We do not know for sure whether or not he is in Somalia.

GUMMOW J:   Well, presumably he has to give someone some instructions at some stage.

MR GAME:   Well, our position, your Honour, is that we had a retainer which is still on foot by reason of the fact that we never had instructions that terminated the retainer.

KIRBY J:   Are you sure it is not terminated by implication, by his abandoning Australia?

MR GAME:   It could have been terminated if he gave instructions to us to withdraw in these proceedings or he did not meet our costs.  But they were met on the special leave application by the appellant.  Our view of it is that we have no valid reason for concluding that are retainer has been terminated.

GLEESON CJ:    You ask us to revoke special leave, but if we were to do that, what order should be made in this Court as to the costs of the matter that has been brought here and apparently abandoned by your client?  It may be a theoretical question because if he is in Somalia or somewhere else and not coming back, it is unlikely that they could be enforced.

MR GAME:   The short answer to that is that the grant of special leave was conditional upon meeting our costs.  But the appellant ‑ ‑ ‑

GLEESON CJ:    Surely that was on an assumption that the appeal would proceed. 

MR GAME:   Yes, your Honour.  The appellant in these proceedings has indicated that it would meet our costs whether we appeared as legal representatives or as amicus curiae.  The only other way of bringing the

matter to a head would be for us to have filed a notice of motion to have the matter brought before the Court in the short period between his going back in December and these proceedings.

GLEESON CJ:   But leaving aside financial questions as to whether or not you are, in that coy phrase that used to be used in police courts, “properly instructed”, are you in a position to tell us whether your client has left Australia indefinitely?

MR GAME:   Your Honour, it is our understanding that he has left the country indefinitely but could I say this, your Honour?  He could only come back into the country if he came back illegally.  He came in illegally so it is quite impracticable to suggest that he would be returning.  So, too, is it incorrect to suggest that, as it were, there is some controversy that can be determined by the Tribunal because one of the conditions at the time of the decision is that the protection criteria are met.  That is to say that he is in a country and that he is outside of Somalia.  So, it does not just go to the grant, it goes to the decision itself.

GAUDRON J:   On one view it may go to whether there is a right in issue in the proceedings.

MR GAME:   Yes, your Honour.

GLEESON CJ:   Thank you, Mr Game ‑ ‑ ‑

MR GAME:   Could I just say one last thing?  That the protection obligations are obligations relating to expulsion – Articles 31 to 33.  They are the protection obligations.  How could any Tribunal in Australia decide whether or not there are protection obligations when the person is not here to be expelled?

GLEESON CJ:   Thank you.  Yes, Mr Basten.

MR BASTEN:   I have nothing further to put to what I have put in writing
and orally, and might I say that as far as my instructions are concerned, no issue of costs arises in relation to this aspect of the matter.

GLEESON CJ:   We will adjourn for a short time to consider the course we will take in this matter.

AT 10.25 AM SHORT ADJOURNMENT

UPON RESUMING AT 10.27 AM:

GLEESON CJ:   The Court is of the view that, having regard to the respondent’s departure from Australia for an apparently indefinite period, the grant of special leave to appeal in this matter should be revoked.

AT 10.28 AM THE MATTER WAS CONCLUDED