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

[2023] HCATrans 72

[2023] HCATrans 072

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

GLEESON J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO CONNECTION

ON FRIDAY, 2 JUNE 2023, AT 9.30 AM

Copyright in the High Court of Australia

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

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

MS Z.C. HEGER appears with MS A.M. HAMMOND for the defendants.  (instructed by Australian Government Solicitor)

HER HONOUR:   Thank you.   Mr Lenehan, I have seen the consent orders.

MR LENEHAN:   Yes.

HER HONOUR:   Subject to a few questions I have, they appear to be broadly acceptable.  Perhaps I will just get to my questions.  I have some questions about the applicant’s current situation.  Where is he located, and what is known about his physical and mental state?

MR LENEHAN:   Your Honour, he is detained in the Villawood Detention Centre.  I might see if I can get some instructions on what is going on with his current mental and physical state.  I am looking at my email as I am speaking, your Honour.

HER HONOUR:   Do you know whether there are any prospects of his release into the Australian community?

MR LENEHAN:   Your Honour, that is probably a question best directed to Ms Heger.  Of course, the Minister does have substantial powers under the Act to make those kinds of arrangements.  As far as we know, that is not currently being considered.

HER HONOUR:   Are you aware of whether or not the applicant is currently receiving or whether there are any prospects of him receiving access to any programs such as sexual offending programs that might be relevant to his prospects of deportation?

MR LENEHAN:   I am not aware that he is currently receiving those forms of treatment, your Honour.  Again, I am hoping that those instructing me will tell me if that is not correct.

HER HONOUR:   One question I have is whether or not his access or likely access to programs might be relevant to his prospects of deportation or to either of the matters that are set out in paragraphs 45(a), (b) or (c) of the stated case.

MR LENEHAN:   Yes.

HER HONOUR:   Is it any part of your case, or do you apprehend that it would be any part of his case that access to the kind of programs that might have been relevant to his release to the Australian community might also be relevant to his prospects of deportation?

MR LENEHAN:   If your Honour takes up the special case and looks to paragraphs 41 and then 44, I think the answer to that must be no.

HER HONOUR:   Yes, thank you.  I suppose – well, I would not want to impute any particular forensic position to the applicant, but what troubles me is the question of a lack of support that might be detrimental to his prospects of deportation.

MR LENEHAN:   Yes, I understand the point your Honour is making.  My instructions – but I cannot say that these are set in stone – it appears to be that he cannot access the sorts of services that he may have been receiving while he was imprisoned, in immigration detention.  I do not think I can point to anything in the material that indicates that to your Honour.  But as I say, in terms of removal, as we see things, while access to those kinds of services may well be things that the Minister might want to seek to facilitate, they will not affect his prospects of removal, and will not bear on what your Honour sees in paragraph 45 of the ultimate agreed position between the parties.

HER HONOUR:   In a sense, what you seem to be saying is that his position is utterly hopeless, that there is nothing that could be done to ready him for removal.

MR LENEHAN:   Your Honour, I think what I am saying is that his prospects of removal as agreed between the parties are, as is recorded in paragraph 45, in terms of things that might be done to assist, say, his physical or mental health or other matters, I am certainly not saying that.  But those are things that the Minister is able to provide for.

HER HONOUR:   Thank you.  Coming back to the application, paragraph 4 of the application for constitutional or other writs addresses the question of the range of possible critical findings.  Is your current position – this is paragraph 4 of Part III – that the critical findings are full stated in paragraph 45 of the stated case?

MR LENEHAN:   Yes.  Yes, they are.  Your Honour will have noticed that they are expressed in somewhat different ways.  That reflects differences in the expression in the authorities, in particular, Al‑Kateb.

HER HONOUR:   And you are currently satisfied that there are no controversial primary facts that underpin the inferences or that underpin those conclusory facts at paragraph 45?

MR LENEHAN:   Yes, I am, your Honour.  So, for those reasons, we submit that it is appropriate to refer it to a Full Court.

HER HONOUR:   Just looking at paragraph 6 of the application, is the question of onus in issue?

MR LENEHAN:   Not anymore, as I apprehend it, your Honour, because of the agreement.

HER HONOUR:   And, similarly, as far as you are aware, there are no underlying controversial facts in relation to the correct approach to onus?

MR LENEHAN:   No, because of that.

HER HONOUR:   All right.  This, again, may be a question for the Minister, but are you aware of any potential overlap between the issues in NZYQ and Benbrika and Jones that are listed for hearing before the Full Court the week after next?

MR LENEHAN:   Your Honour, I think that probably is best addressed to the Minister.  I am not currently aware of such overlap.  Obviously, this is all in the area of Chapter III, so it is possible.

HER HONOUR:   And how long do you think that you would need to present your oral argument?

MR LENEHAN:   Your Honour, I think it is probably in the order of three hours, maybe a little more, for our argument.  We had in mind that perhaps the matter is a day plus, just by reason of its nature and also, your Honour is probably aware that each time this issue has arisen after Al‑Kateb in this Court, there have been one or more interveners.  We would – presumably, the States and Territories will not be particularly interested in this matter, although in M47/2012 I think New South Wales came along, but the Australian Human Rights Commission has intervened in a number of those matters, and there have been other interveners.

HER HONOUR:   Thank you.  Thank you, Mr Lenehan.  Ms Heger, I have similar questions for you.  I am concerned that the materials that I have read – and just the applicant’s current situation – suggest that without any active steps taken to maintain the applicant’s health or to address his – to address the behaviours that seem to – that are relevant to his offence, he is

in a situation where his prospects of removal from the country are hopeless.  Is that a fair assessment, as far as the Minister is concerned?

MS HEGER:   Your Honour has used the word “hopeless”, I suppose the language that I would adopt is what appears in the special case and what we have agreed, that at present there is no real likelihood or prospect of the plaintiff being removed.  As for steps being taken to address the question of rehabilitation, I do understand – I am instructed – that those sorts of programs have not, to date, been made available in immigration detention.  I do not have instructions, however, on what might be possible going forward.  I can certainly seek those instructions.

HER HONOUR:   Well, it seems to me that, on the current state of affairs, the applicant is almost being left in a – I think “hopeless” seems to be more of an accurate assessment of his situation than “no real likelihood or prospect”, and it does trouble me to think that while this case is before the Court, no one may be turning their mind to the inevitable deterioration of a person who is in a situation of hopelessness.  In Hands, Chief Justice Allsop reminded us that we need to be aware of the consequences of what we are doing to a human, and it seemed to me that I ought not to let this directions hearing go past without acknowledging that the purpose of his detention is for removal, and yet it seems that on one view on the facts, capacity for removal is likely diminishing from very little to none.  So, I draw that to your attention as a factual matter that may ultimately be relevant.

MS HEGER:   I will certainly take that on board, your Honour, and I will raise that with my instructors.

HER HONOUR:   All right, thank you, Ms Heger.  As far as the issues for decision, is there anything that you want to add about the issues that are raised in paragraphs 4 and 6 of the application for constitutional or other writs?

MS HEGER:   Only that I think the parties are ad idem on the question of whether there are sufficient facts agreed in the special case.  We agree that there are, and there are no underlying matters of controversy that would presently throw into doubt the ultimate fact that has been agreed at paragraph 45 of the special case, and we would also agree that the question of onus has fallen away in the light of those agreed facts.  Your Honour, I think your second question to my learned friend Mr Lenehan was about the prospects of the plaintiff being released into the community by way of residence determination, for example.

HER HONOUR:   Yes.

MS HEGER:   Of course, your Honour will have seen paragraph 26 of the special case, which records that:

On 7 February 2023, the Minister personally decided that he did not wish to consider intervening under ss 195A or 197AB –

Of course, 197AB being the power to make a residence determination.  So, that was the decision made at that time.  I do not have instructions beyond the special case on that question.  Of course, it cannot be definitively ruled out, that a residence determination would ever be made, but I do not have instructions at the moment that would suggest that is a real possibility in the reasonably foreseeable future, also.

HER HONOUR:   I wonder if that issue is one that may need to be the subject of current evidence at the time of the hearing along with the relevant facts concerning the inquiries that the Department currently proposes to seek in relation to Bangladesh and Saudi Arabia.

MS HEGER:   Yes.

HER HONOUR:   I think it would assist the Court to have some updated evidence on that topic, and perhaps that could be filed and served shortly before the hearing.  Can I leave that to the parties to identify a suitable timeframe, once the appeal date has been set?

MR LENEHAN:   Yes.

MS HEGER:   Yes, your Honour.

MR LENEHAN:   Your Honour, can I add – may I, while I am interrupting, add one thing?  Your Honour has asked about material concerning what is available in terms of rehabilitation services.

HER HONOUR:   Yes.

MR LENEHAN:   In the special case at 60 and 62 you have some evidence in the AAT’s decision.

HER HONOUR:   Yes.

MR LENEHAN:   So, first at paragraph 62:

despite his request and recommendations made before he was sentenced and again before he was released from prison, he has not had the benefit of a sex offender program.

HER HONOUR:   Is there any reason, or are you able to tell me whether your client would accept such services if they were made available to him?

MR LENEHAN:   I do not have instructions as I am speaking, but it appears that he sought it before and was willing to engage in such a program if it was to be made available, and in the special case again, over the page at 62, paragraph 72, you see the Tribunal member’s expression of regret about ‑ ‑ ‑ 

HER HONOUR:   I am not sure that I have got the right pagination here.

MR LENEHAN:   They are the little numbers in the top right‑hand corner of the special case.

HER HONOUR:   Perhaps I do not have annexures to the special case.  But I have a copy of the AAT decision ‑ ‑ ‑ 

MR LENEHAN:   Yes, the refusals – sorry, your Honour.

HER HONOUR:   I have the protection visa decision record.

MR LENEHAN:   Yes.

HER HONOUR:   And then I have the AAT, yes.

MR LENEHAN:   Yes.  So, paragraph 72, then, of the AAT’s decision, you see further reference to that.

HER HONOUR:   Yes.  Thank you.  Yes, go on.

MR LENEHAN:   And so, as I say, this is a matter in the Minister’s control.  We would encourage, through your Honour, appropriate steps to be taken, if they can be taken, to provide those sorts of services.

HER HONOUR:   I think that, perhaps, the most that I can say at the moment is that the credibility of a claim that the applicant is being held for the purposes of removal is diminished if the true position is that he is not being given access to services that would make it at all possible for him to be removed at any time.

MR LENEHAN:   Yes.

HER HONOUR:   Do you want to say anything about that, Ms Heger?

MS HEGER:   No, I have nothing to add on that point, your Honour.  The final thing that I wish to say something about is your Honour’s question about Benbrika.

HER HONOUR:   Yes.

MS HEGER:   As I understand it, there is no relevant overlap with these proceedings.

HER HONOUR:   Thank you.  All right.  What I propose to – as far as timing, do you agree with Mr Lenehan’s estimate of a day plus?

MS HEGER:   Yes.

HER HONOUR:   Thank you.  What I will then do is I will make orders in accordance with the consent orders, apart from order 2, and I will replace order 2 in the consent orders with the following order, that:

The special case be set down for hearing on a date to be fixed, not before the November 2023 Sittings.

Is there anything further?

MR LENEHAN:   No, your Honour.

MS HEGER:   Your Honour, I had understood there might be some discussion of the non‑publication orders today, but I assume your Honour is content to make those orders, and I certainly do not oppose them, and I have nothing further to say about them.

HER HONOUR:   Well, I took it from the form of the consent orders that they were made by consent, and so I have made those orders, yes.  Could you please adjourn the Court.

AT 9.52 AM THE MATTER WAS ADJOURNED