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

[2023] HCATrans 149

[2023] HCATrans 149

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 FRIDAY, 20 OCTOBER 2023, AT 2.01 PM

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 P.D. HERZFELD, SC appears with MS A.M. HAMMOND for the defendants.  (instructed by Australian Government Solicitor)

HIS HONOUR:   There is some material that has been filed.  I take it, Mr Lenehan, that you read the affidavit of Ms Lenagh‑Maguire dated 18 October?

MR LENEHAN:   Your Honour, I think that is actually Mr Herzfeld’s affidavit.

HIS HONOUR:   That is Mr Herzfeld’s affidavit.  Mr Herzfeld, do you read that affidavit?  And your affidavit, Mr Lenehan, is Malcolm Stephens’ affidavit of 19 October?

MR LENEHAN:   Yes, your Honour, and I would seek to read that affidavit.

HIS HONOUR:   Yes.  I will take both of those affidavits as read.  Mr Herzfeld, you have asked for this directions hearing, and as I read your submissions, all you are asking for today is another directions hearing.

MR HERZFELD:   Yes, your Honour, although the plaintiff has supplied some proposed orders, and there is actually some measure of agreement about those, so perhaps I could make four points and tell your Honour what our attitude is to those proposed orders.

HIS HONOUR:   Yes, go ahead.

MR HERZFELD:   The first point is that, as you will have seen, there have been developments in the facts which bear on the ultimate factual question necessary to raise the correctness of Al‑Kateb as the applicant’s case is presently framed, and that ultimate question is whether there is at present a reasonable prospect of the plaintiff’s removal in the reasonably foreseeable future.

We do not have a difficulty with paragraph 1 of the plaintiff’s proposed orders, that is a direction about conferral, but we are not confident that an amended special case can be agreed which is in a suitable form to put before the Full Court concerning the present prospect of removal.  Whether or not that is so can be debated on a subsequent occasion, but we do want to make clear that we, for our part, do not think it is a suitable use of the special case procedure for the case to be put before the Full Court without agreement as to the ultimate factual issue.

That is a recipe for a hearing before the Full Court degenerating into a debate about competing inferences to be drawn or not drawn from incomplete facts in the special case.  There may be more specific difficulties, for instance, with the suggestion implicit in the plaintiff’s submission that the special case could include references to provisions of United States law but with no evidence, for example, concerning how the discretions to which that law refers might or might not be exercised.

So, while we have no difficulty with proposed order 1, we wanted to make clear to your Honour that we are not confident that a special case in a suitable form can be agreed, and that being so, we would suggest in paragraph 2 of the orders that it should refer to the filing of any amended special case, rather than an amended special case – as there may not be one.  Can I come back to the date when I deal with proposed order 4.  That is the first point that we would make.

The second point is that your Honour will have noticed that I referred a couple of times to the applicant’s case “as presently framed”, and that is because if your Honour looks at the application for a constitutional or other writ, the final relief is all framed by reference to the lawfulness of the applicant’s present detention.  I do not know if your Honour wants to turn it up, but it is in the special case book, if that is an easy place for your Honour to find it, or your Honour may have it separately, I think I can see.  But the final relief is all framed by reference to the lawfulness of the applicant’s present detention, and there is no claim for damages or otherwise based on unlawful detention in the past.  That is the reason for the framing of the question of law in the special case itself.

If your Honour looks at that, your Honour will see in the special case itself, question (1), whether the provisions “authorise the present detention of the plaintiff”, and question (2) is premised on that.  Now, I raise that because the plaintiff’s submissions for this directions hearing refer to the possibility of a case being conducted before the Full Court concerning the lawfulness of the plaintiff’s detention as at 30 May 2023.  For that to be an issue in the proceedings, the plaintiff would need to seek leave to amend his application for a constitutional or other writ, and we would need an opportunity to consider that.

Now, the plaintiff can, of course, put such an amendment forward to us as part of the conferral to which proposed order 1 refers.  The parties can consider what, if any, bearing that has on an amended special case and the suitability of testing the correctness of Al‑Kateb on the basis of a

retrospective question of that kind.  That is not necessarily a straightforward question.  It might involve consideration of what, if anything, the subsequent events mean for what, in fact, was the position as at 30 May, and it might involve consideration of whether it is suitable for a case to be considered by this Court when there is uncertainty as to the end point of any unlawful detention.

Now, again, your Honour, I am simply exposing those matters, and if there is a dispute about them between the parties, they can be considered when the matter comes back for further directions, as both parties agree that it should.  That was the second point that I wanted to make.

The third point is your Honour will have seen that the plaintiff’s proposed order 3 seeks an extension of time for his reply submissions, from 24 October to 30 October.  We oppose that; the plaintiff should file his reply submissions by 24 October as ordered, responsively to our submissions concerning the matters of law with which those submissions deal, and then if further submissions are required in light of any amendments to the special case then both parties should have an opportunity to make such submissions.  Again, that is a matter that can be considered on the next occasion.

That brings me to the fourth and final point I wanted to raise, which is the plaintiff’s proposed order 4, with which we agree, because it reflects what we originally proposed.  Insofar as the date for that order is concerned, we have suggested 27, for 30 or 31 October, and then based whichever date goes into that order, one can work out then what the suitable date for order 2 should be.  Your Honour, those were the four points that I wanted to make.

HIS HONOUR:   Thank you.  Mr Lenehan.

MR LENEHAN:   Thank you, your Honour.  Order 1 being agreed, I will pass over that.  In terms of order 2, that is a sensible suggestion from our friend.  Your Honour has seen, I will not rehearse them again, the reasons why we say this matter could be appropriately determined on the basis of our facts supplemented in the way that we have indicated in our submissions for this directions hearing, which is what we wish to confer with our friend about.  In terms of the content of United States law, we are presently exploring, although hopefully this is unnecessary to burden the special case with this, the possibility of a United States expert, but we saw that as being more a matter of convincing our friend, to the extent we needed to, of what should be in the special case.

In terms of the question about the current form of relief sought by my client, can I ask your Honour to turn up our written submissions, if you have them, on the substantive matter.

HIS HONOUR:   Yes.

MR LENEHAN:   And if I could ask your Honour to look to paragraph 54 of those submissions.

HIS HONOUR:   Yes.

MR LENEHAN:   You will see that – and also footnote 166, which appears at the bottom of the page.  So, we had prepared our written submissions on the basis that it may be necessary to add to the prayer for relief that Mr Herzfeld has noted in the special case book – that is prayer (7), there are some additional words – which would put our case firmly on the basis that the question of lawfulness arises as at 30 May.  Now, if I also need leave to – and I should add to that, our friends in their responsive submissions said nothing to suggest that what we had said there was an inappropriate form of relief, depending on how, of course, the questions in the special case are answered.

So, we had rather taken from that that an amendment to the originating process was unnecessary, but to the extent I need it, we do seek leave to amend it ‑ ‑ ‑ 

HIS HONOUR:   In what form, Mr Lenehan?

MR LENEHAN:   Your Honour, essentially it would involve adding to prayer (7).  So, in the special case book, your Honour, as that at page 6.

HIS HONOUR:   Does it involve making a claim for damages, Mr Lenehan?

MR LENEHAN:   No, but as your Honour knows, no such claim was made in Plaintiff M68 and the Court was content to proceed on the basis that my clients in that case had standing to seek declaratory relief in respect of past unlawful detention, notwithstanding that detention had entirely ceased.  And so, we apply that equally to a case where detention has continued but, on our friend’s version of events, its unlawfulness may have ceased.

HIS HONOUR:   All right.  You are not making that application now, you are foreshadowing the possibility of making an application, as I understand it.

MR LENEHAN:   Yes.

HIS HONOUR:   All right.  Was there something else you wanted to say?

MR LENEHAN:   Your Honour, we do press for order 3.  As your Honour has seen, this turn of events has apparently been known to the Commonwealth for some time but has come to a complete surprise to my client.  In those circumstances, we would wish our reply to more directly address the factual situation as it has recently emerged, and that is the reason for proposed order 3.  I think it is agreed between us that there should be a further directions hearing.

HIS HONOUR:   If we had a directions hearing on 27 October, there could be no guarantee that there would not be further developments between 27 October and the hearing.  Mr Lenehan, I cannot see why you should not comply with the existing timetable for written submissions, understanding that you will have an opportunity to update those submissions appropriately at the hearing.  You have a day and a half set aside for that, so I am not inclined to make your proposed order 3.

So far as the proposed amendments to the special case are concerned, it seems to me that we have a special case that states the position as agreed between the parties as at a particular date:  30 May 2023.  The affidavits that have been filed and read today on this directions hearing seem to me to update the position to today.  I, for the moment, cannot see what further would be included in a special case that is not adequately addressed in those affidavits.

Mr Herzfeld, one problem with language like “reasonable prospect” and “reasonably foreseeable future” is that there is a certain elasticity built into the conclusory language.  For my own part, and I suspect for the Court generally, there is some utility in knowing exactly what has happened since 30 May and being able to give specificity to general conclusory statements by reference to the detail of the evidence of the sort that is contained in those affidavits.

So, what I am perhaps suggesting – I will certainly make a direction that you confer about a proposed special case, but what I am suggesting is that it may be of more utility to leave the special case as it is and to update the special case by evidence to bring the Court to the position on 7 November when it will understand exactly what has occurred to that date.  Mr Herzfeld, do you have a reaction to that?

MR HERZFELD:   My reaction is that there may be a further reaction at the further directions hearing and I do not want to – assuming your Honour is content to have a further directions hearing, and that will be informed by what, if anything, happens in relation to the proposed amendment, which we understand will be proposed, and the discussion of the special case.  I understand what your Honour is suggesting, and I think the most that I can say at the moment is that whether it has worked and what it means for the maintenance of the hearing is something that can be further discussed at the next directions hearing.

HIS HONOUR:   Bear with me a moment.  The orders that I would propose, and I will hear both of you on them, are:

1.The parties confer upon proposed amendments to the special case relating to factual developments that have occurred since 30 May 2023.

2.By 4.00 pm on 27 October 2023:

(a)the plaintiff file any amended special case;

(b)the plaintiff file any application for amendment of the originating process; and

(c)each party file any further affidavits relating to factual developments that have occurred since 30 May 2023.

3.The matter be listed for further directions, by video link, before me on 30 October 2023 at 10.00 am.

Mr Lenehan, are those directions acceptable to you?

MR LENEHAN:   Yes, they are, your Honour.  Thank you, your Honour.

HIS HONOUR:   Mr Herzfeld?

MR HERZFELD:   Would your Honour just give me one moment?

HIS HONOUR:   Of course.

MR HERZFELD:   What I was just checking – your Honour has not made any provision for any written submissions or indication from either party to your Honour or each other what their attitudes are for the directions hearing.  Your Honour may have done that deliberately.  It might be useful, in some form, for the parties and your Honour to know what each party’s attitude is.

HIS HONOUR:   Shall we do that at the same time as the filing of the affidavits or amended special case, Mr Herzfeld, or would you prefer that as two stages?

MR HERZFELD:   Could your Honour accommodate the directions hearing the following day, on the 31st?

HIS HONOUR:   No, but what I could do is move forward the proposed date for the filing of the documents I have already mentioned.  So, change proposed order 2 from 27 October to 26 October, and make provision for the filing of submissions relating to the directions hearing the following day.

MR HERZFELD:   Yes, I think that would be suitable, unless in the next few seconds someone tells me, electronically or otherwise, that it is not.

HIS HONOUR:   I take those few seconds to have passed.  So, I amend proposed order 2 to read:

2.By 4.00 pm on 26 October 2023 –

and I will add an order 3, which will be:

3.Each party file written submissions bearing on the proposed directions hearing by 4.00 pm on 27 October 2023 –

and, renumbering the final order:

4.The matter will be listed for directions on 30 October.

As previously indicated.  They are, then, the directions I make.  Nothing more?

MR LENEHAN:   No, your Honour.

HIS HONOUR:   Mr Herzfeld?

MR HERZFELD:   No, your Honour.

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

AT 2.24 PM THE MATTER WAS ADJOURNED