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

[2021] HCATrans 172

[2021] HCATrans 172

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S173 of 2021

B e t w e e n -

SHAYNE PAUL MONTGOMERY

Applicant

and

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

MINISTER FOR HOME AFFAIRS

Second Respondent

KEANE J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA BY VIDEO CONNECTION TO BRISBANE

ON WEDNESDAY, 27 OCTOBER 2021, AT 4.53 PM

Copyright in the High Court of Australia

HIS HONOUR:   In accordance with the Court’s protocol for remote hearings, I will announce the appearances.

MR P.G. WILLIS, SC with MR M.L.L. ALBERT and MS E.R. TADROS appear for the applicant.  (instructed by Russell Kennedy Lawyers)

MR C.L. LENEHAN, SC appears with MR P.M. KNOWLES for the respondents.  (instructed by Australian Government Solicitor)

HIS HONOUR:   Gentlemen, I received a communication from the Deputy Registrar that he had received a communication from Mr Montgomery’s solicitors seeking this mention. To summarise what I have before me, it is said that there emerged in the Federal Court hearing this morning a difference in understanding with the result that her Honour has, pending direction from this Court, decided not to hear cross‑examination of the detaining officer on the factual question of whether the officer holds a relevant reasonable suspicion under section 189 of the Migration Act. 

It is said that this is contrary to Mr Montgomery’s understanding that her Honour would hear and determine questions of fact relating to Mr Montgomery’s application for a writ of habeas corpus other than to the extent that it turned on the question of whether Mr Montgomery is a non‑alien.  I have to say that was my understanding. 

It is suggested that her Honour would keep tomorrow available for cross‑examination of the relevant officer, the detaining officer, if this course were preferred by this Court.  The first thing I should say, of course, is that her Honour’s hearing is being conducted on her Honour’s authority, not under the supervision of this Court.  Her Honour is not dealing with a remitter and her Honour is not acting under this Court’s supervision. 

I have to say it comes as a surprise, I might say, to me that having tried to make clear on the last occasion that nothing that I was purporting to do in my directions was intended to disrupt her Honour’s hearing or to prevent a full hearing of matters that did not bear upon the constitutional issue, whether or not a detaining officer held a relevant suspicion under section 189 of the Migration Act has, I have to say, at least uninstructed by submissions, anything to do with the constitutional issue.  So, having outlined the problem as I understand it, Mr Lenehan, what seems to be the problem, from your point of view?

MR LENEHAN:   Your Honour, I do not know why your Honour has received the communication in those terms. Mr Montgomery’s counsel were invited to cross‑examine the detaining officer on exactly that question, that is the question that arises under section 189, whether Mr Montgomery

is an unlawful non‑citizen.  What the Minister said could not be done was the very thing that is referred to in Ms Chetty’s email, that is, cross‑examine the detaining officer to the extent that turns on the question of whether Mr Montgomery is a non‑alien. 

HIS HONOUR:   How could it possibly be – how could the detaining officer be asked a question about the detaining officer’s understanding of the constitutional questions?  All the detaining officer can be asked about is about the reasonable basis for his or her belief that Mr Montgomery was.  The questions can only go to the basis for the belief, can they not?  They cannot go to the fact.

MR LENEHAN:   Yes, your Honour.

HIS HONOUR:   Insofar as they go to her belief, those questions are permissible, are they not?

MR LENEHAN:   Your Honour, we certainly embrace the idea that they were permissible insofar as they went to the issues under section 189, but what your Honour removed to this Court was the constitutional questions which – and we still do not really understand how this is to be put in the Federal Court, but that is what we understand our friends to seek to raise with – cross‑examine Ms McBrune on. This arose because I did not wish to read Ms McBrune’s evidence insofar as it went to constitutional issues or the alien issues. We were perfectly content to put her up as a witness and for her to be cross‑examined on her reasonable belief as to the questions that emerged from section 189. That was, as we understood it, what was in issue in the Federal Court.

HIS HONOUR:   Well, I might hear from Mr Willis.  Mr Willis, I have to tell you, I am not entirely happy about this.  What do you see as being the problem?  I think you will have to unmute, Mr Willis.

MR WILLIS:   Thank you, your Honour.  It is really that – I have to say, your Honour, I was not there this morning.  My learned junior, Mr Albert, was conducting the case in the Federal Court and he might be best to answer your Honour’s question.  But we sought to question the detaining officer, not as to the fact as to whether Mr Montgomery was or is Aboriginal, which is the ground which has been removed into the Court, but rather as to the reasonable suspicion – or the basis for the reasonable suspicion of the detaining officer. 

The manner – listening to my learned friend, Mr Lenehan, now, I do not see how it is that the questions which we sought to ask could be objected to and perhaps Mr Lenehan is not objecting to them, but the trouble is that her Honour has been led to believe that some parts – or that

the course which Mr Albert wished to take, is not open to her to be taken because it has been removed into the High Court.

HIS HONOUR:   Mr Willis, I am sure that her Honour did not take that view for no reason.  There must have been an objection to the course that was taken.  From what Mr Lenehan has said, I do not understand what that objection is. 

MR WILLIS:   Perhaps if my learned junior could address your Honour as to how it arose this morning.

HIS HONOUR:   Yes, thanks, Mr Albert, you might do that.

MR ALBERT:   Your Honour, I am afraid I do not have much to add.  Your Honour’s understanding accords with our understanding as to what it was that the High Court had removed to it.  Mr Lenehan put to Justice Derrington the notion that – perhaps re‑characterising it slightly – that any question relating to aboriginality, including any question about her suspicion or the reasonableness of the suspicion was not a question that could possibly be asked in the Federal Court.  Justice Derrington accepted that position from the Minister and, on that basis, said that the issue was not something on which any questions could be asked and that was that. 

We expressed surprise.  We then indicated to her Honour that we would regrettably come back to this Court to seek clarification, but, with respect, what your Honour said at the outset was our understanding that while it is not the case and was never going to be the case that we were seeking to prove alienage through the detaining officer, that has never been on the table. 

All that has been on the table – and it was indicated at the last hearing before Justice Derrington – was the question of the reasonable suspicion, which we say is a factual question.  That is all we seek to ask questions about, and her Honour regrettably came to the view, having heard from Mr Lenehan, that that had been removed from her and that is how we end up before your Honour.

HIS HONOUR:   Mr Lenehan, what do you say about that?

MR LENEHAN:   Your Honour, the way that Mr Albert has just put it reveals the problem…..  What he wishes – can I go back a step, your Honour, because your Honour asked, how did this arise.  This arose because we wished not to read that part of the affidavit of the detaining officer that dealt with her reasonable suspicion as to alienage. 

What we did want to read was her reasonable suspicion as to whether Mr Montgomery was an unlawful non‑citizen, but the reason that we did not wish to read the first part is consistent with the email that has brought this hearing before your Honour, that is, we were perfectly content for Mr Albert to ask all the questions he wanted except to the extent that his cross‑examination turned on the question of whether Mr Montgomery is an alien.  Necessarily, what he wishes to do is to get into – does your Honour still have the pleading which your Honour made an order in respect of?

HIS HONOUR:   I do.

MR LENEHAN:   You do, so you see - your Honour may have an affidavit of one of my instructors, Ms Maguire, which attaches that and some other documents.  That affidavit was affirmed on 9 September and was before the Court last time.

HIS HONOUR:   Yes, I have that affidavit.

MR LENEHAN:   Yes.  So, your Honour will recall that you removed the prayers for, amongst other things, habeas insofar as they concerned grounds eight and nine, and then looking to Ms Maguire’s affidavit at page 16, you see ground eight where it was put that:

The Applicant is entitled to a writ of habeas corpus as he is not an alien for the purposes of the Constitution as he is an Aboriginal and therefore cannot be detained as an “unlawful non‑citizen” under the Migration Act 1958 (Cth).

Now, necessarily, as we understood it, and you see this further on in Ms Maguire’s affidavit at pages 75 and 76 where – these are the submissions that were first made to her Honour Justice Derrington on that very ground, ground eight, and this was the crux of what our friends said. 

So, when they got to the point with ground eight, they said, in light of the submissions that they made in respect of interpretation of the test in Love they submit – this is in 142 – that the respondents cannot discharge its burden that Mr Montgomery is not an Aboriginal Australian, or that their officers have a reasonable suspicion that he is not an Aboriginal Australian under section 189. It follows that the writ of habeas corpus must issue and Mr Montgomery should be immediately released.

So that illustrates, in our friend’s own writing, how intrinsically wound up are any questions of reasonable suspicion as to alienage compare with reasonable suspicion as to unlawful non‑citizen was that the very thing that was removed into this Court and that was why, we said, that that cannot

be the subject of cross‑examination or is not a matter that we wish to adduce evidence on in the Federal Court.

I am sorry, I should have made all of that clearer at the outset, your Honour.  Your Honour, just while I am speaking, I perhaps should also add that of course, insofar as that question, reasonable suspicion on ground eight, is before this Court, and we say it is, then that of course is a matter that we need to potentially deal with in the special case and your Honour is aware that negotiations have been going on to that end.

There are two possibilities by which that might be dealt with. It could be that the parties could agree on the reasonable suspicion of the detaining officer. We say that is in fact unnecessary for a reason that I think the Solicitor‑General identified to your Honour last time, that is that we are prepared to concede in the draft special case – and this was attached to our written submissions that were before the Court last time – that if the High Court declares it is not within the power of Parliament under section 51(xix) of the Constitution to treat Mr Montgomery as an alien, section 189 would not thereafter authorise or require his continued detention with the consequence that Mr Montgomery would need to be released from immigration detention forthwith. So, that factual issue, insofar as it arises in this Court, we say would be dealt with in that way.

HIS HONOUR:   Mr Lenehan, ground eight that I am looking at – ground eight of the application – is: 

The Applicant is entitled to a writ of habeas corpus as he is not an alien for the purposes of the Constitution as he is Aboriginal and therefore cannot be detained as an “unlawful non‑citizen” under the Migration Act1958 (Cth).

MR LENEHAN:   Yes.

HIS HONOUR:   That is not a ground that brings into this Court the question as to the holding of a reasonable suspicion by the detaining officer.

MR LENEHAN:   Your Honour, that was the purpose of taking your Honour then to our friend’s written submissions because at least ‑ ‑ ‑

HIS HONOUR:   I do not know – I do not care what the written submissions say.  I am concerned with what has been removed into this Court.  What has been removed into this Court has nothing to do with the reasonable suspicions of the detaining officer.

MR LENEHAN:   Well, your Honour, if that is so, and if that remains the point of ‑ ‑ ‑

HIS HONOUR:   Mr Lenehan, I am looking at ground eight.  I did not misread it.  What I read out to you was what ground eight in the application that I have before me says, and that is what has been removed to this Court.  Am I in error in that?

MR LENEHAN:   No, your Honour, your Honour is not.

HIS HONOUR:   Then so far as the other side have said things in their submissions, that is one thing.  It may be unfortunate, it may be accurate, it may be not, but whatever they have said in their submissions that has not been removed to this Court.  Can you hear me, Mr Lenehan?

MR LENEHAN:   Yes, I can, your Honour.  Your Honour, if that is so, then the cross‑examination should proceed in the Federal Court.

HIS HONOUR:   Yes, that would seem to be right. It would seem to be unfortunate that this misunderstanding has occurred. I am not going to make a direction to the Federal Court. I have absolutely no business giving such a direction. As I have said, the proceedings in the Federal Court are proceeding on the footing that as I said on the last occasion, this Court’s approach was to do nothing to disrupt that hearing. I suppose it has to be acknowledged that an issue has been removed from that court to this. That issue, insofar as it is encapsulated in ground eight, has nothing to do with the operation of section 189 of the Migration Act or the facts that bear upon the reasonable suspicion.  Now, I am not going to give a direction to the judge about that, but I do not expect the judge to be misled as to what has been removed into this Court.  Am I understood?

MR LENEHAN:   Yes, your Honour.

HIS HONOUR:   Mr Willis?

MR WILLIS:   Indeed, your Honour.

HIS HONOUR:   Thank you.  Is there anything further that I need to deal with today?

MR LENEHAN:   No, your Honour.

MR WILLIS:   We are grateful for your Honour’s attention.

HIS HONOUR:   Very well.  Might I say, Mr Willis, I really do not wish to be misunderstood about this.  The proceedings in the Federal Court are not proceeding under my supervision.

MR WILLIS:   We understand, your Honour.

HIS HONOUR:   Very well.  Adjourn the Court.

AT 5.13 PM THE MATTER WAS ADJOURNED