Mohebi v Minister for Home Affairs & Anor

[2020] HCATrans 98

[2020] HCATrans 098

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S60 of 2020

B e t w e e n -

ROHOLLAH MOHEBI

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 AND BY VIDEO CONNECTION

ON THURSDAY, 17 JULY 2020, AT 10.07 AM

Copyright in the High Court of Australia

MR D.R. TAYLOR:   May it please the Court, your Honour, I appear for the plaintiff.  (instructed by SWL Migration)

MR P.R. MACLIVER:   If it please your Honour, I appear for the defendants.  (instructed by Australian Government Solicitor)

HER HONOUR:   Mr Macliver, I have had the opportunity to read the material filed in support of your application.  You rely on the affidavit of Brooke Marie Griffin.

MR MACLIVER:   I do, your Honour.

HER HONOUR:   Yes.  Mr Taylor, is there any opposition to any part of the affidavit of Ms Griffin?

MR TAYLOR:   Yes, in the sense that the plaintiff never alleged that a decision had been made to remove the plaintiff immediately to Papua New Guinea or anything like that ‑ ‑ ‑

HER HONOUR:   Mr Taylor, I might interrupt you for the moment.  I am seeking to ascertain whether you have a formal objection to any part of Ms Griffin’s affidavit.  I understand there may be issues of controversy concerning the nature of the relief that you seek by your amended application, but I reiterate, is there a formal objection to any part of the affidavit?

MR TAYLOR:   No, your Honour, thank you.

HER HONOUR:   Yes, very well.  You may take the affidavit as read, Mr Macliver, and I have had the advantage of reading your submissions.  May I take up a couple of matters with you?

MR MACLIVER:   Yes, your Honour.

HER HONOUR:   The first is, as I understand the way the defendants read the amended application, the claims for relief and the grounds identify matters concerning migration decisions under the Act in the sense that they concern either privative clause decisions or purported privative clause decisions. That is the way the application is put.

MR MACLIVER:   Yes.

HER HONOUR:   Yes. 

MR MACLIVER:   That is correct, your Honour, yes.

HER HONOUR:   One preliminary matter – I see the plaintiff raises the question of whether there should be an order for non‑publication of his name. Reference is made to section 91X of the Act, but also I understand the application is pressed under the provisions relating to non‑publication orders in Part XAA of the Judiciary Act on the ground of concerns for the plaintiff’s safety.  What is the defendant’s position in relation to that application?

MR MACLIVER:   Your Honour, we would not oppose that application.

HER HONOUR:   May I raise this with you. Firstly, it is not clear to me that the application is necessarily one that comes within section 91X. That section applies automatically if the proceeding relates to a person in the person’s capacity as a person who applied for a protection visa or a person who applied for a protection‑related bridging visa or a person whose protection visa or protection‑related bridging visa has been cancelled. It is not really evident to me that any of those circumstances are raised by the amended application.

MR MACLIVER:   No, I would have to agree with your Honour there.  This is a person who was removed under the removal provisions to a regional processing country and his claims for protection were addressed in that country and, as your Honour is aware, he was found to be a refugee by Papua New Guinea.

HER HONOUR:   Yes.

MR MACLIVER:   So I do not think that – I agree that 91X is not applicable.

HER HONOUR:   So that really brings us to a consideration of the provisions of Part XAA of the Judiciary Act relating to suppression and non‑publication orders.

MR MACLIVER:   Yes.

HER HONOUR:   As I understand Mr Taylor’s submission, the ground that he relies on is that the order is necessary to protect the safety of the plaintiff. Perhaps, Mr Macliver, the best course is for me to take the matter up with Mr Taylor. It is necessary that I be satisfied of the necessity to make the order against the primary objective identified in section 77RD of the Judiciary Act.

MR MACLIVER:   Yes.  I think, your Honour, that is appropriate and perhaps I should more correctly have said we do not oppose the making of the order if your Honour is satisfied that an order of that kind is necessary.

HER HONOUR:   Yes, very well, thank you, Mr Macliver.  I might now take up some matters with Mr Taylor, I think would be the convenient course.  Mr Taylor, the application that I have before me today is the application for remitter to the Federal Circuit Court.  I understand you oppose that on the ground, as I read your submissions, that aspects of the amended application would not be within the jurisdiction of the Federal Circuit Court on remitter.

MR TAYLOR:   There are two aspects to that. The first is that yes, we say that there are matters which the Circuit Court does not have jurisdiction in. There is no specific exclusion other than – in relation to matters arising under a treaty except that the Parliament has not seen fit to grant a jurisdiction to the Circuit Court. Indeed, under section 38 of the Judiciary Act – I know this refers to the State courts but 38 is – State courts have no jurisdiction in relation to matters arising under a treaty – that is 38(a) – and then 44 again, it says - specifically section 44(2) where a matter referred to in paragraph 38(a) and so on, the High Court may remit the matter to a Federal Court or any court of a State or Territory. So specifically the Act does not envisage a matter arising under a treaty being remitted to the Circuit Court.

HER HONOUR:   Mr Taylor, there may be some controversy about the scope of the meaning of “matter” of section 75(i) – matter “arising under any treaty”, but on the face of things your application invokes consideration of Australia’s international obligations under a variety of treaties to which Australia is a party, but that, on the basis of well‑established authority, would not make the matter one arising under a treaty. The enforceable rights which you seek to vindicate by your amended application concern, as I read the application, the lawfulness of your client’s detention in immigration detention under sections 189 and 196 of the Migration Act and the lawfulness of any decision to be made removing him from Australia to Papua New Guinea under sections 198AD and 198AH. Allied to these are your claims for declarations respecting what are alleged to be decisions under sections 197AB and 195A of the Act.

Now, I appreciate that in developing your various challenges you may invite the Court to consider a construction conformable with Australia’s assumed obligations under international treaties to which it is a party, but that is a very different matter to contending that the Federal Circuit Court would lack jurisdiction because the matter is one arising under a treaty.

MR TAYLOR:   Thank you.  May I respond?

HER HONOUR:   I am inviting you to do so.

MR TAYLOR:   Thank you, your Honour.  Specifically, the detention of the applicant is authorised insofar as it accords with the purposes of the Migration Act which, under section 4 of the Act, are to incorporate Australia’s national interest and, under section 4(1)L

to regulate, in the national interest, the coming into, and presence in, Australia of non‑citizens –

and under section 4(5):

To advance its object, this Act provides for the taking of unauthorised maritime arrivals from Australia to a regional processing country. 

So it is a specific category of person relating to the transitory persons or the people who are to be taken to the regional processing country.

We have received this morning the agreement – rather, notification of where we may find on the internet the agreement between Australia and Papua New Guinea for the regional processing agreement and I will refer – will come back to that later because it is an agreement, an international treaty, so to speak.

The purpose of the plaintiff being in detention – I think it is M96A and M68 – is ultimately for removal to a regional processing country, notwithstanding their presence and for temporary purpose of medical treatment.  But the ultimate purpose is for removal to a regional processing country.  The authorities are - M96A is the authority that – the purpose of detention is for removal.

HER HONOUR:   Accepting that to be so, Mr Taylor, the point that I raise with you is of a more fundamental character which is that no enforceable right that you claim arises under any of the international treaties on which you rely in your written submissions.  The proceeding, the subject matter of it, if I may put it that way, would appear to be, as the defendants submit, migration decisions made under the Migration Act, whether they be privative clause decisions or purported privative clause decisions.

MR TAYLOR:   If I may, 198AH of the Act which specifically processes a transitory person back into the 198AD removal power ‑ ‑ ‑

HER HONOUR:   Yes.

MR TAYLOR:   ‑ ‑ ‑ subsection (2) of that says subsection (1) applies whether or not the transitory person has been assessed to be covered by the definition of “refugee”.

HER HONOUR:   Yes.

MR TAYLOR:   So the applicant – now, that is quite a bold statement in law and whether it is effective is another question in the sense that it envisages directly that the refugee status of the applicant – or the plaintiff – and he has been assessed as a refugee – but the refugee status of the plaintiff is to be irrelevant to the removal to the regional processing country. 

However, we do say that Australia having sent the plaintiff to Papua New Guinea and for regional processing pursuant to the regional processing arrangement, that arrangement had a duty which arises specifically under Article 26 of the Refugees Convention which is that anybody who is assessed to be a refugee has a right of freedom of movement.  That is specifically within the regional processing agreement.  We say that the regional processing agreement cannot very well be seen to put obligations on New Guinea to respect the freedom of movement of a refugee and yet purport to, in clear violation of Australia’s distinct international obligation under Article 26 of the Refugees Convention, deny freedom of movement to the plaintiff himself as a refugee, and worse ‑ ‑ ‑

HER HONOUR:   Mr Taylor, I think I have the sense of the submission.  Is there anything further that you wish to put in relation to your opposition to remitter?  I draw particularly to your attention the contents of Ms Griffin’s affidavit that identifies a raft of disputed factual issues that require determination.

MR TAYLOR:   Yes.  I accept that those issues require determination.  However, there is a long series of matters which have been heard in the High Court where, irrespective of whether the High Court has jurisdiction to remit, nonetheless the High Court has seen it appropriate to consider those matters in the High Court – S4/2014, M68, M96A – several of these types of matters.  Where they have been remitted, as in S99/2016, there has been doubt as to the extent of jurisdiction which is afforded. 

My friend has referred to M37/2020, I believe, where a matter was remitted to the Federal Court.  Now, considering that ultimately what comes up in issue in that case, notwithstanding that it is a tort case, is whether or not there is a 197AB residence determination to release that plaintiff into community detention, that is to say no longer restrain the person in an immigration detention facility, arguably the Federal Court has no jurisdiction to hear that matter if that be the case insofar as it relates to a residence determination because that would be a migration decision by 474(7) of the Migration Act, which specifically includes 197AB matters.

So we say that M37 is not directly relevant to this matter because it was first remitted to a different court and, in any case, the 197AB matters will struggle to be determined in the Federal Court.  I appreciate that the defendants have asked for remittal for this reason, I believe, to the Circuit Court.

However, what we say is that the class of people affected by this circumstance is large.  The legal status of the applicant as a refugee recognised pursuant to the regional processing arrangement, whose detention clearly and immediately violates Australia’s international obligations under Article 26 of the Convention, without further ado is a matter for this Court ‑ ‑ ‑

HER HONOUR:   Mr Taylor, the Court is not particularly assisted in dealing with this application by what I would describe as jury submissions.

MR TAYLOR:   Sorry, your Honour.

HER HONOUR:   So if we can just return – as I understand it, you do not contest that, given the grounds for relief in your amended application, there will be substantial factual issues to be determined in order to resolve the matter.

MR TAYLOR:   I do accept that.  However, at least part of the matter relates to a simple question of law under the treaty obligations.  I do apologise – what I was submitting was that the plaintiff himself, when I said “without further ado”, I meant is, without further ado, directly being held – detained.  His restriction – freedom of movement is without further ado being restrained in violation of the Refugees Convention, Australia’s international obligations.

HER HONOUR:   I understand, Mr Taylor, that that is your assertion and the question of the conditions of the plaintiff’s present immigration detention and the treatment that he is receiving for his medical conditions is a subject of dispute between you and the defendants.  That dispute would seem to be at the heart of the relief to which you claim to be entitled.

MR TAYLOR:   Your Honour, that goes to the relief on the medical side of things.  We accept that.  We accept that the Circuit Court has jurisdiction in relation to the medical side of things to show that above and beyond the fact of detention his medical circumstances take it to a level which is intolerable or inhuman.

HER HONOUR:   Yes.

MR TAYLOR:   However, what we say is that those circumstances also directly violate, not only the medical side of it, but just the fact of – the length and fact of detention, the acknowledged mental health status of the plaintiff which is not in dispute – that it actually violates the Refugees Convention by forcing him to return back to his country of origin.  We say that that is the most egregious violation of the international treaty obligations – the holding of the plaintiff in his current circumstances tends to force him to return to Iran at the risk of his life, notwithstanding that he has already been regionally processed.

So we say that given that he has raised claims in respect of New Guinea, those are issues which we say are not properly for the Circuit Court to determine because it directly challenges the power of removal under 198AD and through that the legality of the detention. Now, 197C of the Act, which is a protective clause in respect of – the clause which excludes from – 197C is - for the purposes of section 198 it is irrelevant whether Australia has non‑refoulement obligations in respect of an unlawful non‑citizen. However, that is a power to remove, for example, to their country of origin.

Specifically, the regional processing arrangements do not – or a separate regime to the 198 removal power, although it is acknowledged that in 198(2) there is a reference to it, but the specific power to remove comes under 198AD, that is the power to remove to a regional processing country.

In that respect, there is no exclusion of Australia’s international obligations.  There is no equivalent provision to 197C, whether the respondent says that 197C should be read up, so to speak, to encompass 198AD that would be a question of law.  But from my reading of 198AD it is more covered by 198AH which purports to exclude consideration of whether the plaintiff is a refugee, but it does not address the issue of whether or not the person has raised non‑refoulement claims in respect of the regional processing country.

HER HONOUR:   Mr Taylor, we are getting into the detail of the operation of various of the provisions of the Migration Act which seem to me to be taking us at a fair remove from the simple contention that it is appropriate, having regard to the range of disputed factual questions, that this matter be remitted to the Federal Circuit Court.  I have read your written submissions.  Is there anything further that you wish to put in relation to that discrete question?

MR TAYLOR:   Yes, your Honour.  We would say that the Circuit Court does not have jurisdiction to assess Australia’s non‑refoulement obligations in respect of the regional processing country, that is to say the matters arising under the Refugees Convention, the ‑ ‑ ‑

HER HONOUR:   This is a return to your initial submission, namely that aspects of your amended application are correctly characterised as matters arising under a treaty within the meaning of section 75(i) of the Constitution and in relation to those matters the Federal Circuit Court is without jurisdiction.  Is that ‑ ‑ ‑

MR TAYLOR:   Yes.

HER HONOUR:   Am I right in understanding that there is a second branch to your argument and that is that this Court’s jurisdiction in relation to matters arising under a treaty is precluded by operation of section 494AB of the Migration Act and the constitutional validity of that aspect of section 494AB is a matter solely for this Court to determine. Am I right in apprehending that that is a strand of your argument?

MR TAYLOR:   I do apologise, your Honour.  I have lost the – I have not caught the essence of your point there.

HER HONOUR:   Let me just take you to your written submissions, Mr Taylor ‑ ‑ ‑

MR TAYLOR:   Thank you.

HER HONOUR:   ‑ ‑ ‑ so that I can be confident that I understand them. Can I direct your attention to paragraphs 22 and 23 of those written submissions filed in relation to the present interlocutory application for remitter? As I apprehend it you are saying that on the face of it section 494AB excludes the jurisdiction of this Court under section 75(i) in relation to a matter arising under a treaty and for that reason not only do you assert that the Federal Circuit Court is lacking jurisdiction, but in the balance of paragraph 23 you appear to be suggesting that the matters are excluded from this Court’s jurisdiction, that is matters under sections 75(i) and (iii), and that only this Court has the jurisdiction to determine the validity or otherwise of the purported exclusion of jurisdiction. Am I right in understanding that is your argument?

MR TAYLOR:   That is one of our arguments, yes.

HER HONOUR:   Yes, very well.  I understand the argument, Mr Taylor.  Mr Taylor, is there anything else you want to put to me concerning the basis for opposition to remitter, taking into account that I have read your submissions?

MR TAYLOR:   Thank you.  May I just confer with my instructor for a moment?

HER HONOUR:   Yes.

MR TAYLOR:   Your Honour, you are correct that the two limbs of that argument – one is the effect of the law and the treaty obligations arising under that as distinct from the duty of care issue - so there are duty of care issues which we acknowledge the Federal Circuit Court is quite an appropriate venue to hear those matters, but the matters which we are talking about here in respect of non‑refoulement obligations in respect of Papua New Guinea, which relate not only to the plaintiff here but to several others, are in fact in relation to certain events which occurred in Papua New Guinea as distinct from Nauru, and certain fears which are common to many of the refugees – or many of the transitory persons in respect of Papua New Guinea as distinct from Nauru.

Those matters, we would say, are both – the Circuit Court does not have jurisdiction with respect to the treaty obligation matters, but secondly, that even if the Circuit Court does have jurisdiction it is not appropriate for the matter to be remitted there given the gravity of the matters in dispute and the effect on a large – when I say large, a limited, discrete, but a large number of persons who are currently in the same circumstance as the plaintiff, be they refugees or asylum seekers.

So we say that given the circumstances and given the urgency of the actual matters – I mean the urgency of the situation for this particular plaintiff and many in that cohort, we say that these legal matters are matters which ought to remain within the jurisdiction of the High Court.  Arguably they could be remitted to the Federal Court but that would necessarily involve a bifurcation of the proceeding because the Federal Court does not have jurisdiction with respect to the migration matters – the migration decisions or conduct ‑ ‑ ‑

HER HONOUR:   We are not dealing with an application to remit to the Federal Court, Mr Taylor.  It would assist me if you confined your submissions to the application with which I am dealing.

MR TAYLOR:   Thank you, your Honour, my apologies.  So we say that while the duty of care issue is appropriately dealt with by the Circuit Court, we acknowledge that given the workload of the High Court, nonetheless we do say that these non‑refoulement treaty obligation issues directly relate – are of such gravity and significance that we say there simply is not the time but more importantly given the gravity of those matters we say that it is appropriate for these matters to be determined by the High Court. 

The issue of non‑refoulement obligations and the applicability of non‑refoulement obligations under 198AD and the treaty obligations with respect to the plaintiff in relation to his conditions of – rather, his status in Australia as a refugee and that is Article 26 of the Refugee Convention, but also the fear of refoulement which is – or the imposition of conditions which tend to be inhuman and in that word “inhuman” which the High Court has acknowledged ‑ ‑ ‑

HER HONOUR:   Mr Taylor, I think we are getting far removed from the issues by your development of the content of the concept of “inhuman treatment” under the Convention against Torture. I understand the bases of your opposition. You accept that there are aspects of the matter that would be suitable for remitter to the Federal Circuit Court, but by reason of matters which you contend answer the description of being matters arising under a treaty within the meaning of section 75(i), you contend, firstly, that the Federal Circuit Court is without jurisdiction; secondly, that there has been a constitutionally invalid attempt to circumscribe this Court’s jurisdiction to deal with that aspect of your proceeding under the provisions of section 494AB of the Act - that is so, yes?

MR TAYLOR:   That is so, yes.

HER HONOUR:   Mr Taylor, can I just take up with you the question of the non‑publication order? You refer in your written submissions to section 91X of the Migration Act. As I indicated to Mr Macliver it is not clear to me that this proceeding attracts the automatic operation of that provision. It seems to me that section 91X is engaged where it can be said that the proceeding relates to a person in the person’s capacity as one who has applied for a protection visa or applied for a protection‑related bridging visa, or whose protection visa or protection‑related bridging visa has been cancelled. On the face of things this proceeding does not come within any of those concepts.

MR TAYLOR:   We would submit, your Honour, that – thank you for raising the issue – when the plaintiff came to Australia he came as part of a cohort of people who generally come into Australia by boat and are inducted by way of an entry interview where the immediate claims for protection are taken.  That is commonly – that information is invariably and always used – taken to be part of the protection visa application throughout their subsequent processing.

So in the first instance the plaintiff came here, and of course subject to the 46A bar, nonetheless raised a claim for protection in Australia.  So he has in the first instance asked Australia for protection.  He was ‑ ‑ ‑

HER HONOUR:   Can I just direct your attention, Mr Taylor, to the terms of the provision. It might assist if you turn it up. You will see under 91X(1)(a) one asks the question: does this proceeding relate to the plaintiff as a person who applied for a protection visa? I would read that to mean applied for a protection visa under the provisions of the Act. Do you contend that your client answers that description?

MR TAYLOR:   Only in the sense – the M61‑type sense, that he engaged in a process which was always envisaged to lead to potentially a protection visa application.

HER HONOUR:   Yes.

MR TAYLOR:   He was diverted to the regional processing arrangement and subsequently assessed as a refugee pursuant to that arrangement.

HER HONOUR:   Yes.

MR TAYLOR:   But definitely the plaintiff fits within the broader category of persons who has come and asked – and engaged in a process which could lead to an application for a protection visa.  I acknowledge there is a difficulty in the wording there.  However, if we reverse engineer what is an application for a protection visa it always includes the entry interview.

HER HONOUR:   If section 91X is not engaged, as I read your written submissions, you nonetheless contend that the Court ought to make an order for non‑publication of the plaintiff’s name or information that might identify him under section 77RE of the Judiciary Act on the ground that the order is necessary to protect the safety of the plaintiff.

MR TAYLOR:   Yes.

HER HONOUR:   But thus far, Mr Taylor, no order for a pseudonym or the like has been made. Before I could make such an order I am required to take into account the primary objective of the administration of justice being safeguarding the public interest in open justice under section 77RD and I can only make the order if I am satisfied that it is necessary in order to protect the safety of the plaintiff.

I have to tell you, Mr Taylor, at this stage it is not clear to me that there is material before me on this application that would establish the necessity to make the order.  It seems to me that would not preclude an application being made in proper form and supported by material, an application that might also enable, as section 77RG(2)(d) requires, the opportunity for a news publisher to be heard on the application, such an application being made in this Court, or for that matter, were the matter to be remitted to the Federal Circuit Court, an application being made in that court, again, based on some satisfactory evidentiary foundation.

MR TAYLOR:   What I would ask the Court to consider is in the event, for example, that the applicant was allowed to apply in future for a protection visa, then the current ‑ ‑ ‑

HER HONOUR:   I am sorry, Mr Taylor, we have just lost the audio.  Have you pressed the mute button by any chance, or?

MR TAYLOR:   No.

HER HONOUR:   That is better.  It may be that a document or something of that kind ‑ ‑ ‑

MR TAYLOR:   Yes, I think that is what happened.

HER HONOUR:   Very well.

MR TAYLOR:   In the event, for example, that the plaintiff were subsequently allowed to apply for a protection visa, then any decisions which had previously been made will necessarily sort of – if I can rephrase that.  The decisions which we make now, in my submission, might envisage any potential future grant of a 46 – I think it would be a – the relevant bar lift to allow the applicant to apply for a visa and in such a circumstance then retrospectively one can concede that one would then need to go and apply for suppression orders to remove the name of the person because they had subsequently become an applicant for a protection visa based on the claims which they initially raised when they initially came and applied – and in their entry interview before they were transferred.  Similarly, the cohort – not just on the individual level but on a cohort basis ‑ ‑ ‑

HER HONOUR:   Mr Taylor, I cannot deal with the matter on the basis of submissions inviting attention to the cohort.  I am required to consider the necessity of making such an order in order to protect the safety of any person as distinct from some unidentified cohort.  As I have indicated to you, it seems to me on the material before me today it would be difficult to be so satisfied.

MR TAYLOR:   The applicant’s claims, both in respect of Iran but also in respect of New Guinea itself, certainly raise issues which are both deeply concerning to him in terms of publication in terms of like the information sharing but also in terms of his safety.  It may be that written submissions could be filed in this respect.  We acknowledge the interest of public justice – I am just – grounds for making an order is under RF – it is both for safety but also undue distress or embarrassment to a party.  We would say that clearly given ‑ ‑ ‑

HER HONOUR:   It is undue distress or embarrassment to a party to or witness in a criminal proceeding involving an offence of a sexual nature.

MR TAYLOR:   I withdraw that.  My apologies.  But overall it is both the safety of a person – and we say that that would be engaged and we could provide written submissions in that respect, but also the proper – all that is necessary to prevent prejudice to the proper administration of justice.  If the plaintiff were to be subject to that by bringing a court action, there is a personal cost to that in the sense that one’s information would be published it tends to – and potentially one’s claims – it tends to, for the reasons set out in…..(No 2), itself raise another claim and thereby destroys the subject matter of the proceedings to some extent.

HER HONOUR:   Mr Taylor, you appear now to be shifting from the ground identified in your written submissions, which is section 77RF(1)(c) for a consideration of subsection (a), namely the order is necessary to prevent prejudice to the proper administration of justice. If there is wanting material in support of ground (c), I would suggest to you there is an even more apparent want of material to support the making of an order under subsection (a).

As I have indicated to you, Mr Taylor, thus far proceedings have not been anonymised by the use of a pseudonym or the like.  No formal application has been made of a kind that is contemplated under the provisions of Part XAA of the Judiciary Act and I say that because you will observe that under section 77RG(2) a number of persons are entitled to be heard by the Court on such an application and those include a news publisher.  That requires, in the ordinary course at least, that an application be made and the fact of its making made public by the publication of the court list identifying the matter.

You have raised the matter, as it were, in passing in written submissions.  At this juncture, I am not inclined to make the order because I am not satisfied that the conditions either, under 91X of the Migration Act, apply or, of necessity, under section 77RF(1)(c). In so observing you are not precluded, were the matter to remain in this Court, from making an application or, if the matter were to be remitted to the Federal Circuit Court, from bringing such an application in conformity with that court’s rules.

Is there anything further you wish to put to me, Mr Taylor?

MR TAYLOR:   We did ask in the beginning with the Registry whether it was possible, but it was indicated that again, it would need to be subject of application.

HER HONOUR:   Yes.

MR TAYLOR:   Given the nature of the claims, any publication of the claims – or elements of the applicant’s claims in conjunction with his name would tend to put him and his family at risk. Given the nature of the claims and the fact that it has already been accepted that he is a refugee and given that he has raised claims, the case itself includes claims against Papua New Guinea in the circumstances where he is, under the Act required to be removed to Papua New Guinea and that is the very purpose of his detention, we would say that that itself raises again issues relating to the safety of the applicant because we cannot guarantee that he will not be removed to Papua New Guinea.

HER HONOUR:   Yes, thank you, Mr Taylor.  Mr Macliver, I do not need to hear from you further. 

MR MACLIVER:   Thank you, your Honour.

HER HONOUR:   The plaintiff arrived in Australia on 24 July 2013 by sea at Christmas Island.  He did not hold a visa and was, and remains, an unlawful non‑citizen[1]. The plaintiff was transferred to Manus Island in Papua New Guinea, a “regional processing country”, pursuant to section 198AD(2) of the Migration Act 1958 (Cth) (“the Act”). The plaintiff was brought to Australia on 25 July 2019 under an Agreement of Medical Transfer pursuant to section 198E of the Act as it then stood. The plaintiff is a “transitory person” for the purposes of the Act[2]. 

[1] Migration Act 1958 (Cth), ss 13, 14.

[2] Migration Act 1958 (Cth), s 5(1).

On 29 April 2020, the plaintiff filed an application for constitutional or other writ relief. By this application, the plaintiff sought a writ of habeas corpus to secure his release from the Melbourne Immigration Transit Accommodation, subject to a direction that he reside at a specified residence in the community and, in the alternative, that writs of mandamus issue to the first and second defendants requiring that they consider whether to make a “residence determination” under section 197AB of the Act.

On 8 May 2020, the plaintiff applied for an urgent hearing seeking interlocutory relief by way of an interim order of habeas corpus.  The latter application came before me for hearing on 22 May 2020.  On that occasion the plaintiff did not press his application for interim relief.  He was given leave to file an amended application and a timetable was fixed for the filing of any further material and submissions with a view to the substantive application being heard today.

On 25 June 2020, the plaintiff filed an amended application claiming relief and relying on grounds that are entirely new. By consent the date fixed for the hearing of the substantive application was vacated and a new timetable fixed for the filing of submissions and further evidence. The consent orders anticipated the making of an application to remit the proceeding. On 8 July 2020, the defendants applied for such an order pursuant to section 44(1) of the Judiciary Act1903 (Cth). Remitter is sought to the Sydney registry of the Federal Circuit Court of Australia. In support of their application the defendants rely on the affidavit of their solicitor, Brooke Marie Griffin, who states that the plaintiff’s amended application is one that will require the determination of a number of disputed facts.

Section 44(1) of the Judiciary Act relevantly permits this Court, upon the application of a party, or of its own motion, to remit any matter to a federal court that has jurisdiction with respect to the subject matter. Under section 476(1) of the Act, the Federal Circuit Court is given the same original jurisdiction in relation to migration decisions as is given to this Court under section 75(v) of the Constitution.  A “migration decision” is defined to include a “privative clause decision” or a “purported privative clause decision”[3]. The former is defined in section 474 and the latter in section 5E of the Act. The defendants submit that the subject matter of the amended application concerns migration decisions and that the Federal Circuit Court has the same jurisdiction as this Court to determine the amended application.

[3] Migration Act1958 (Cth), s 5(1).

Section 494AB of the Act relevantly provides that proceedings relating to the performance or exercise of a function, duty or power under Subdivision B of Division 8 of Part 2 in relation to a transitory person, and proceedings relating to the removal of a transitory person from Australia, cannot be instituted or continued in any court. Subsection (3) provides that nothing in the section is intended to affect the jurisdiction of this Court under section 75 of the Constitution. Section 494AB prevents a proceeding, such as the present proceeding, from being commenced in the Federal Circuit Court, or from continuing in that court had the proceeding been commenced there. The provision does not prevent the Federal Circuit Court from dealing with such a proceeding that is remitted to it by the High Court under section 44(1) of the Judiciary Act. Section 494AB is relevantly indistinguishable from the provision that bars certain legal proceedings relating to unauthorised maritime arrivals that was considered by this Court in Plaintiff S156/2013 v Minister for Immigration and Border Protection[4].

[4] (2014) 254 CLR 28 and see Plaintiff M37/2020 v Commonwealth of Australia & Anor per Nettle J.

The plaintiff opposes remitter contending that the proceeding “involves matters arising under Art 1A of the Refugees Convention”. The plaintiff contends that at the heart of his case is “Australia’s requirement to give full faith and credit to its international obligations”. The conditions of the plaintiff’s detention under the Act are said to violate international norms established under the Refugees Convention, the International Convention on Civil and Political Rights and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. His opposition to remitter is premised upon the proceeding being a matter “arising under” a treaty such that the proceeding engages this Court’s jurisdiction conferred by section 75(i) of the Constitution.

The Federal Court, it is said, lacks jurisdiction to determine those aspects of the matter arising under section 75(i) of the Constitution (or section 75(iii) of the Constitution). Moreover, the plaintiff submits that these aspects of his claim are, in terms, excluded from this Court’s jurisdiction under section 494AB(1) of the Act. He argues that this Court alone has jurisdiction to determine the validity or otherwise of the purported exclusion of its jurisdiction under section 494AB(1).

The premise for the plaintiff’s argument is not established.  No aspect of the amended application is a matter that can be said to arise under a treaty.  It is well established that the entry into a treaty by Australia does not create enforceable rights or obligations under Australian municipal law[5].  As Justice McHugh explained in Scott v Bowden[6], whatever the meaning of section 75(i) of the Constitution, the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment gives no “immediate right, duty or liability to be established by the determination of the Court”.  The like observation applies to the other treaties which the plaintiff’s argument invokes.

[5] Minister of State for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 at 286-287, per Mason CJ and Deane J; Re East, Ex parte Nguyen (1998) 196 CLR 354 at 362 [19] per Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ.

[6] (2002) 194 ALR 593 at [7].

By his amended application the plaintiff seeks to challenge the lawfulness of his detention under sections 189 and 196 of the Act together with the lawfulness of any decision to remove him to Papua New Guinea under sections 198AD and 198AH of the Act. Allied to these challenges, the plaintiff claims declarations relating to alleged decisions under sections 197AB and 195A of the Act. I accept the defendants’ submissions that the subject matter of the amended application may be said to concern “migration decisions” involving either “privative clause decisions” or “purported privative clause decisions” under the Act.

Returning to Ms Griffin’s affidavit, I note that the defendants dispute the evidentiary foundation for the plaintiff’s contentions as to the conditions of his detention and the medical treatment that he claims he should have received while in detention. The defendants also dispute that there has been any decision to remove the plaintiff to Papua New Guinea and the contentions that an officer of the Commonwealth made a decision that the plaintiff did not meet the circumstances for referral under section 197AB Residence Determination Guidelines. In light of the raft of factual issues that determination of the amended application requires to be resolved, I am persuaded that it is appropriate that the proceeding be remitted to the Federal Circuit Court.

In his written submissions the plaintiff drew attention to the circumstance that to date no order has been made under section 77RF(1)(c) of the Judiciary Act and submitted that it is appropriate and necessary that the publication of his name and any information tending to identify him be prohibited under section 77RE of the Judiciary Act until further ordered. The heading to that part of the plaintiff’s submissions raised consideration of section 91X of the Act. Section 91X requires the Court not to publish the name of a person in relation to a proceeding if the proceeding relates to a person in the person’s capacity as a person who has applied for a protection visa or for a protection‑related bridging visa or whose protection visa or protection‑related bridging visa has been cancelled. The proceeding does not relate to the plaintiff in any of these capacities.

The provisions of Part XAA of the Judiciary Act require the Court in deciding whether to make a suppression or non‑publication order to take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice. The scheme of the part contemplates the making of an application in circumstances that allow, inter alia, that a news publisher be entitled to appear and be heard on the application. No formal application for the making of an order under section 77RE is before me. Nor is there anything to establish that the making of the non‑publication order is necessary to protect the safety of the plaintiff and for that reason, without prejudice to the making of a like application to the Federal Circuit Court, I decline to make the order sought.

For these reasons there will be the following orders:

1.Pursuant to section 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.

Adjourn the Court.

AT 11.16 AM THE MATTER WAS CONCLUDED