NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs & Anor

[2023] HCATrans 150

[2023] HCATrans 150

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S28 of 2023

B e t w e e n -

NZYQ

Plaintiff

and

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Defendant

COMMONWEALTH OF AUSTRALIA

Second Defendant

GAGELER J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA AND BY VIDEO CONNECTION

ON MONDAY, 30 OCTOBER 2023, AT 9.58 AM

Copyright in the High Court of Australia

HIS HONOUR:   In accordance with the protocol for remote hearings, I will announce the appearances of the parties.

MR C.L. LENEHAN, SC appears with MR T.M. WOOD for the plaintiff.  (instructed by Allens)

MR S.P. DONAGHUE, KC, Solicitor‑General of the Commonwealth of Australia, appears for the defendants.  (instructed by Australian Government Solicitor)

HIS HONOUR:   I should perhaps indicate at the outset that I have no difficulty with the proposed amended application.  I have an issue, which I wish to raise with the parties, about the proposed questions in the amended special case, and the parties, I hope, have been provided with some possible revised questions which would raise for the consideration of the Court, by reference to the special case and to the affidavits, the question of the lawfulness of the present and continuing detention of the plaintiff.

I will come back to that.  So far as the affidavits are concerned, I have one issue to raise concerning the affidavit of Mr Gavin, and it is simply that one of the exhibits appears to contain material that identifies the plaintiff.  That affidavit, if it is to go forward, should, I think, be reconsidered and revised in that respect.

The difficulty that I have with the current questions, the substantive questions in the special case, is that they focus only on a point in time, and I recognise that the parties say that there is utility in looking just at that particular point in time, but I also note that the defendants want to reserve the position as to the utility in doing so, if matters in relation to the approach that has been made to the United States develop in a certain direction.  There seems to be a tension in that position, and I could not be confident that the Court would necessarily accept the position of the parties as to the utility of looking just at that date.

Secondly, it seems to me that the affidavit material that has been filed provides a basis upon which inferences are available to be drawn as to what, on any view, is a matter of some uncertainty.  It seems to me that having the factual material in mind is perhaps useful in giving content to the sorts of verbal formulae that are being proffered by both sides, and in a varying form by the amici, when we come to think about what is “reasonably practicable” in the foreseeable future, or what is “likely”, or what is a “real prospect”, those sorts of considerations.  It is all very well to use those words, it is quite another thing to try to work out what they mean in concrete and evolving factual situations.  So, those are the thoughts.  Mr Lenehan.

MR LENEHAN:   Your Honour will have gathered that we were somewhat reluctantly drawn to confining the position to 30 May, so we would embrace the revised questions that your Honour has had the Registry circulate this morning as a way of addressing the various matters that your Honour has just outlined, and we agree that in terms of the factual material, inferences can be drawn from the affidavits in the way that your Honour has indicated, and in the way that – be it with a special case – this Court has done in the 2012 version of M47.  That was done by Justices Gummow and Bell in that matter.  So, I am furiously embracing what your Honour has put to the parties this morning.

HIS HONOUR:   Thank you, Mr Lenehan.  Mr Donaghue.

MR DONAGHUE:   Thank you your Honour.  As to Mr Gavin’s affidavit, I noticed the same thing this morning, and with your Honour’s permission or leave, we will refile that affidavit, just having de‑identified any of those references, by close of business today, if that is convenient.

HIS HONOUR:   Yes, of course.  Thank you.

MR DONAGHUE:   I say that without having specific instructions as to his availability, but assuming we can access the witness, then that should not present any difficulty.  As to the temporal focus, the Commonwealth does not oppose the two additional questions that your Honour has formulated to direct attention to the current detention of the plaintiff, subject to this one complication:  one of the reasons that we had proposed the focus on the past was to avoid the question of fluid facts, as they will affect the position that the Court would be answering on those new questions.

The issue has been illustrated to some extent on the weekend – and our friends, I am told, have been given a copy of this . . . . . have received an email on Saturday morning, so, after the updating evidence that we filed on Thursday, which does not – it is not decisive, but in effect it says, sorry it has taken this long to get back to you, I just spoke with an officer in the State Department in the United States, and, quote:  he will run it by his leadership for consideration as a matter of policy, once we have that steer and if it is possible, we can discuss the likelihood of this person being approved through the U.S. Refugee Admissions Program.

Now, that is a fact that we would clearly have included in the affidavits that we filed, had it happened two days ago, and it foreshadows a further fact and meeting and coming back, so if the Court is to be focusing on the present position, we would seek two things:  one, the capacity to file a further affidavit on the Monday before the hearing so that the Court has everything up to that date; and two, and I appreciate that this is perhaps more controversial, but if the Court is to be focusing on the current detention, then that would seem to us to require the Court to know the position as at the date the Court might issue orders.

It might be that the Court could put in place a regime along these lines, that as further communications are received from the United States, if either party thinks the Court needs to know about them, we could have leave to file an affidavit just putting them before the Court, and perhaps also, if either party thinks that they need to make submissions about the significance, the parties could have liberty to apply so that your Honour could consider whether or not we should be in a position to update the Court, because otherwise your Honours will be looking at a more recent point in the past, but still at a point in the past in circumstances where we know that the situation is presently fluid.

So, my submission is that if your Honour does add those two questions, that a regime along those lines would assist the Court to be answering a real question rather than a question that is overtaken by the facts by the time your Honours come to answer it.

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

MR LENEHAN:   Your Honour, I do not have any difficulty with either of those suggestions, but, as your Honour knows, of course, this being a habeas matter, the relevant time for determining factual matters is as at the trial, which in this Court would be as at the hearing, but I understand the post‑hearing material would really go to the utility question more than anything else.

HIS HONOUR:   What I think I will do for the moment is give the defendants leave to file an updating affidavit by noon on Monday 6 November, and otherwise I will leave any further directions to the hearing.

MR DONAGHUE:   To the Full Court?

HIS HONOUR:   To the Full Court on 7 and 8 November.  The matter has been listed for a day and a half, that is, to conclude around midday on 8 November.  Is that still a reasonable estimate, Mr Lenehan?

MR LENEHAN:   Your Honour, I think so, but – and this was one thing I should have raised before – was your Honour minded to have additional written submissions which would address the factual developments, because that may avoid wasting hearing time.

HIS HONOUR:   I was not planning on that, but if it saves hearing time, I would accede to it.  Mr Donaghue, what do you say?

MR DONAGHUE:   Your Honour, we are a little worried about that estimate, and I confess, I was worried about it, thinking it was lunchtime, not 12.00 pm on the Monday.  It does – I think that there is 40 minutes of oral submissions contemplated for the two interveners in addition to – I cannot immediately remember, although I will have it in front of me in a moment, what my friends had estimated that they would need, but I think that they asked for – if your Honour will excuse me for one moment.

HIS HONOUR:   I am not sure they were both granted leave to make oral submissions.  One was.

MR DONAGHUE:   Our friends requested up to three hours.  I had not appreciated that there was a distinction between – I had understood both had been granted oral leave, though I may be wrong about that.  So, if our friends and the interveners collectively took three hours and 40 minutes, that leaves us half an hour on day one, and then less than a full morning, not factoring in a reply.  I am not at all convinced that that is realistic, your Honour, and I am not sure that it is solved by further written submissions.

MR LENEHAN:   Your Honour, considering that further, I think I would accept that that is so.  I also have one of my juniors furiously telling me that I am being overly optimistic.

HIS HONOUR:   All right.  Very well.  Well, we have the day, if necessary, on the Tuesday.

MR DONAGHUE:   Thank you, your Honour.

MR LENEHAN:   Thank you, your Honour.

HIS HONOUR:   Then, the orders and directions that I would propose to make are as follows:

1.The plaintiff have leave to file the proposed amended application;

2.By 4.00 pm on 31 October 2023, the plaintiff file:

(a)the proposed amended application;

(b)a further amended special case incorporating the questions of law discussed this morning;

(c)an agreed book of further materials containing the further amended special case, the affidavit of Mr Stephens sworn 26 October 2023, the affidavit of Ms Balzary affirmed 26 October 2023 and a revised version of the affidavit of Mr Gavin affirmed 26 October 2023; and

3.The defendant have leave to file an updated affidavit by noon on Monday 6 November; and

4.The further amended special case be referred to the Full Court for hearing on 7 and 8 November 2023.

Those are the proposed directions.  They do not include any provision for written submissions.  We have left that hanging, gentlemen.  What is the best course?  Mr Lenehan.

MR LENEHAN:   Your Honour, if we could file some supplementary written submissions, which could be done by Friday, and there should be a tight page limit on those, it should be in the order of two or three pages, I think, and really – I am sorry, your Honour.

HIS HONOUR:   No, go ahead, please, Mr Lenehan.

MR LENEHAN:   Really, all I have in mind is your Honours have, now, with the affidavits, quite a substantial body of material, really providing a map to that material and how we say it works with our case.

HIS HONOUR:   Mr Donaghue.

MR DONAGHUE:   Your Honour, if, in circumstances where we have the whole of the second day, in my submission there is no need for a further round of submissions, what needs to be said can be drawn out.  If our friend does not file until Friday, then that gives us very little time to say anything responsive in advance of the hearing, so if something additional is to be filed, I would seek to have it filed by our friends before Friday so that we have at least one business day to respond.  I will need to get instructions in matters of that kind, which will otherwise create complications, but my primary submission is that nothing further is required and we should deal with it at the hearing.

HIS HONOUR:   I am inclined to think that is the course we should take, Mr Lenehan.

MR LENEHAN:   Please the Court.

HIS HONOUR:   So, the orders and directions previously indicated are those that I now make.

MR DONAGHUE:   If the Court pleases.

HIS HONOUR:   Is there anything else, gentlemen?

MR LENEHAN:   No, your Honour.

MR DONAGHUE:   No, your Honour.

HIS HONOUR:   Very well.  The Court will now adjourn.

AT 10.15 AM THE MATTER WAS ADJOURNED