Plaintiff B16A by his Litigation Guardian B16B and Ors v Minister for Immigration and Border Protection

[2014] HCATrans 72

[2014] HCATrans 072

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B16 of 2014

B e t w e e n -

PLAINTIFF B16A BY HIS LITIGATION GUARDIAN B16B

First Plaintiff

PLAINTIFF B16B

Second Plaintiff

PLAINTIFF B16C

Third Plaintiff

PLAINTIFF B16D BY HER LITIGATION GUARDIAN B16B

Fourth Plaintiff

PLAINTIFF B16E BY HIS LITIGATION GUARDIAN B16B

Fifth Plaintiff

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Defendant

Application for an order to show cause

KEANE J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON FRIDAY, 4 APRIL 2014, AT 2.21 PM

Copyright in the High Court of Australia

____________________

MR M.J. STEELE:   Your Honour, I appear for the plaintiffs.  (instructed by Maurice Blackburn Lawyers)

MS A.L. WHEATLEY:   May it please the Court, I appear for the Minister.  (instructed by Clayton Utz)

HIS HONOUR:   Yes, Mr Steele.

MR STEELE:   Your Honour, my instructing solicitors have just come from the Registry where I understand the materials are only now being finished filing.  I will hand up a copy of the documents, your Honour; I do not know if you have them already.

HIS HONOUR:   Well, I have an affidavit of Murray Patrick Watt, which is sworn today and ‑ ‑ ‑

MR STEELE:   There should be an affidavit also, your Honour, of the second and third plaintiffs, each of the second and third plaintiffs.  If that has not made its way to your Honour, I will get a copy.

HIS HONOUR:   No, it has not.

MR STEELE:   Does your Honour have a copy of the application?

HIS HONOUR:   Well, I have a summons, which is a summons for an order to show cause.  That is the only summons I have.

MR STEELE:   I will get a copy of the application for your Honour.

HIS HONOUR:   Good.  While all that is coming perhaps you could tell me what this is about.

MR STEELE:   Yes, your Honour.  The plaintiffs are a family of Burmese persons, or persons from Burma.  They arrived at Christmas Island after traversing through parts of south‑east Asia.  When they were intercepted in Christmas Island they – and I say they arrived in Christmas Island as unlawful non‑citizens at the time.  The first plaintiff was not born at the time.  The second plaintiff is the first plaintiff’s mother and she was pregnant at the time with the first plaintiff.  The family was transported to Nauru.  When the second plaintiff was due to deliver the first plaintiff, the family was brought back to Brisbane where the second plaintiff gave birth to the first plaintiff.

There are proceedings in this honourable Court relating to the first plaintiff, relating to a decision of the Minister to refuse to grant a protection visa, and there is also an application on foot relating to an application for citizenship of the first plaintiff and that goes to questions of interpretation of the Citizenship Act and the Migration Act relating to how persons arrive in Australia and so on.

HIS HONOUR:   Is there an issue to the effect that the first plaintiff is an unauthorised maritime arrival?

MR STEELE:   Yes, your Honour.

HIS HONOUR:   When he did not arrive.

MR STEELE:   Yes.

HIS HONOUR:   He was born here.

MR STEELE:   Yes.  Your Honour, I have not been involved in any of the earlier proceedings, but my understanding of the defendant’s case in that matter is that by operation of certain provisions of the Migration Act, in particular, sections 10 and 5A, I think, your Honour, because a person is deemed to have entered Australia at birth and because a person is deemed to be an arrival by sea if they do not arrive in Australia, or do not enter Australia by aircraft, the Minister says that the first plaintiff is an unauthorised maritime arrival.  That is my understanding of the argument.

HIS HONOUR:   Okay.  So that is one issue.

MR STEELE:   Yes.

HIS HONOUR:   There is a question then about if – and if that issue is resolved in the Minister’s favour there is then a question about the grant of the visa.

MR STEELE: Yes. So the application in this Court, which I understand is to be – there is a directions hearing on 23 April in that matter, that relates to the protection visa application. The reason that these matters are being brought in this Court rather than the Federal Circuit Court is because of section 198AB which precludes jurisdiction except under section 75(v) of the Constitution for this Court. So, your Honour, that is part of the background.

HIS HONOUR:   Okay.  So that is the position in relation to the first plaintiff.

MR STEELE:   Yes.  So the other plaintiffs are family members who originally came from Burma and arrived in Australia at Christmas Island.  My understanding is that there is no present application on foot in relation to them, but there was an application in the Federal Circuit Court relating to all the plaintiffs.  Currently, that has been discontinued against – by all of them except for the first plaintiff in this proceeding.

HIS HONOUR:   Okay.  Now, what is it that brings you here today seeking an injunction?

MR STEELE: Your Honour, the family is currently held at the detention centre in Brisbane at Pinkenba, purportedly pursuant to the Minister’s powers under section 189 of the Migration Act.  On Wednesday of this week ‑ ‑ ‑

HIS HONOUR:   Why do you say “purportedly”?

MR STEELE:   Well, only because in the sense of the first plaintiff ‑ if it is the case that the first plaintiff has a valid citizenship then there is no right to detain him.

HIS HONOUR:   No, no right to detain him.  Is there any suggestion that he would not – that he should not be with his parents?

MR STEELE:   No, your Honour.  While I say no, I do not have any instructions to that effect.

HIS HONOUR:   No.  So no one is suggesting that he should be liberated from detention by putting him out on the street.

MR STEELE:   No.

HIS HONOUR:   So is there an issue today about the lawfulness of the detention of his parents?

MR STEELE:   No.  The question today ‑ ‑ ‑

HIS HONOUR:   So he is with his parents?

MR STEELE:   Yes, and his siblings.

HIS HONOUR:   Everyone agrees that he should be with his parents?

MR STEELE:   Yes, your Honour.

HIS HONOUR:   Okay.  So then what is it that brings us here today?

MR STEELE:   On Wednesday of this week an officer of the Minister, or an officer of the detention centre in Brisbane, informed the father that the family was going to be moved to Darwin, to the detention centre in Darwin on the following day; that is, on Thursday.  A letter then came through to my instructing solicitors from the solicitors for the defendant that evening, stating the same thing.

My instructions are – and the affidavit material will show that the second and third plaintiffs had not had any prior notification of that decision and had not been asked to comment or given any opportunity to be heard in relation to that decision.  There was then some discussion between the solicitors for the parties and an undertaking was given by the defendant not to transfer the plaintiffs from Brisbane to Darwin until tomorrow morning, Saturday.

HIS HONOUR:   The original intention was to transfer them to Darwin on ‑ ‑ ‑

MR STEELE:   Thursday morning, the decision having ‑ ‑ ‑

HIS HONOUR:   So they were told on Wednesday that they were going to be moved on Thursday?

MR STEELE:   Yes.  When that occurred, your Honour, the telephone – well, conversations occurred between the various solicitors and the undertaking was given until tomorrow, not to remove them until tomorrow.

HIS HONOUR:   Right.

MR STEELE:   There has been some attempt, I understand, to obtain an extension of that undertaking, but it has been so far fruitless, and the reason for today’s application – today’s application seeks orders in relation to the decision made on Wednesday, 2 April to transfer the family, but that does not need to be heard today, your Honour.  The only reason your Honour is here today – or the plaintiffs have asked your Honour to appear is because the plaintiffs would like your Honour to make an injunction restraining the Minister or his officers from acting on the decision, or taking any steps to transfer the plaintiffs from Brisbane to Darwin today until resolution of the primary proceeding setting aside – the primary proceeding to set aside the decision on 2 April.

HIS HONOUR:   Right.

MR STEELE:   The basis for the primary application is that the plaintiffs were denied procedural fairness in that they were not given an opportunity to be heard in relation to the decision and the defendant did not take into account relevant considerations, including medical treatment of two of the children, being the youngest child, the first plaintiff, and the fourth plaintiff, who is a seven‑year‑old girl, and did not take into account the necessity or the utility of the plaintiffs being near their legal representatives who are all in Brisbane.

HIS HONOUR:   Right.  So from your point of view, is that a sufficient outline of the issues for me to understand what I am grappling with?

MR STEELE:   Yes, your Honour.  I do have an outline of submissions.  It may not assist your Honour as much without the material, and I apologise, it is still not here.

HIS HONOUR:   That is all right.  Maybe the cavalry is arriving as we speak.

MR STEELE:   It may.  Thank you, your Honour.  Your Honour, I will hand up a copy of the material.  It is a copy of my submissions – a copy of the application to show cause, the summons, a consent to remit this matter, if your Honour so decides, to the Federal Circuit Court.

HIS HONOUR:   Has the other side consented to that?

MR STEELE:   No, your Honour, it is a consent signed by the plaintiffs, or the plaintiffs’ solicitors.  An affidavit of Mr Watt, which I understand your Honour has – two affidavits of Mr Watt and I will ‑ ‑ ‑

HIS HONOUR:   Both sworn today?

MR STEELE:   Yes, and I will hand up a copy of an affidavit from the second plaintiff and a copy of the affidavit of the third plaintiff, both sworn today.  Thank you, your Honour.

HIS HONOUR:   Thank you very much.  I will give you leave to read and file those, in the absence of any objection from Ms Wheatley.

MS WHEATLEY:   Your Honour, unfortunately, I have not seen any of the material as yet.

HIS HONOUR:   I see.

MS WHEATLEY:   Perhaps we might be afforded a copy as well?

HIS HONOUR:   Yes, I am sure it will be made available to you, and I will give you a chance to read it, obviously.

MS WHEATLEY:   Thank you, your Honour.

HIS HONOUR:   Before I do, just so that I have an understanding of the parameters of what we are dealing with, can I ask you if you are in a position to respond to what Mr Steele has said as to why we are here and what is at issue?

MS WHEATLEY:   In terms of what we understand is, we were provided – the only document we have been provided with is the draft application for the order to show cause and it does seem to be an originating application to quash or set aside the decision of 2 April and that an injunction should flow while that matter is before the Court.

Your Honour, I should just say a couple of things about – or one, at least, in relation to jurisdiction.  There was an offer, I am instructed, that this matter could go to the Federal Circuit Court last night, but we are here today.  We have not raised specifically – although I probably should hasten to add, not knowing exactly the basis of the application it is difficult to consent to jurisdiction, but certainly on what we were told we were of the view that it could have been brought in the Federal Circuit Court.

In terms of what your Honour is asked to deal with today, being the injunction, so that ‑ if I could call them the plaintiffs, can remain here while the 2 April decision is being considered, yes, we understand that is what your Honour is being asked to do.

HIS HONOUR:   I have been told that – and, presumably, I will find it supported in the material – that two of the plaintiffs are receiving medical treatment here and that the only notice that they have been given about the intention to move them was on Wednesday.  Are you in a position to deal with the questions which arise as a result of that, I suppose, being in terms of the balance of convenience, why the balance of convenience would not favour keeping the status quo in the sense that – I mean, no doubt the

Minister has good reasons for wanting to move them, but in terms of preserving the status quo why now rather than later?

MS WHEATLEY:   Your Honour, I do have two affidavits which I have provided to my learned friend.  One particularly – which I will seek leave to read and file – one particularly of Mr Sokoloff who says that the ‑ and exhibits an email that says that the plaintiffs and the family – this is the first exhibit to that email – have been assessed as fit to travel to Blaydin which is the other facility where they can continue with ‑ and will require medical management once they get there, but that there are facilities there to be able to deal with those matters.

The other issue that Mr Sokoloff deals with at paragraph 5 is that this facility here in Brisbane is a relatively small facility, only some 68 people, designed really for temporary stays, and that there are two families awaiting transfer from Nauru to come to Brisbane for medical reasons and that the Minister needs to make provision for those families as well.

The facilities in Brisbane, as Mr Sokoloff swears to earlier in that affidavit, only has one family room – sorry, I beg your pardon, your Honour – one spare family room at those facilities and, hence, it is necessary to now move these plaintiffs now that they have been assessed as medically able to be moved to another facility and allow other unlawful non‑citizens who are currently in Nauru who also require medical attention to come to Brisbane and be able to access that.  So I think that is probably a long way of saying we have some material before your Honour to be able to address those issues.

HIS HONOUR:   Thank you.

MS WHEATLEY:   Thank you, your Honour.

HIS HONOUR:   Mr Steele, you have seen the affidavits of Mr Sokoloff and Mr Feld?

MR STEELE:   I have just read Mr Sokoloff’s affidavit, your Honour.  I have not had an opportunity yet to read the other affidavit.

HIS HONOUR:   Okay.

MR STEELE:   I note in relation to paragraph 7 of Mr Sokoloff’s affidavit that the medical assessment was only communicated to the defendant on 3 April, which is the day after the decision was made which, in my submission, rather undercuts the thrust of the defendant’s argument in relation to that submission.

HIS HONOUR:   Why is that?

MR STEELE:   Well, because the decision was made before any assessment was undertaken.

HIS HONOUR:   I see.

MR STEELE:   Sorry, was not communicated at least, the result.

HIS HONOUR:   That may be explicable in the light of what is said in paragraph 6.

MR STEELE:   Yes.

HIS HONOUR:   Very well, what I will do, having regard to the speed with which the matter has come on and the fact that both side’s counsel have not really had a chance to look at the other side’s material, is I will stand the matter down until three o’clock so that you can do that.

MR STEELE:   Thank you, your Honour.  Does your Honour want a copy of the authorities referred to in my submissions?

HIS HONOUR:   Yes, that would be very handy.

MR STEELE:   Thank you.

MS WHEATLEY:   Your Honour, before your Honour adjourns I should also, if I may, please, seek leave to read and file a short outline by the respondent with also a bundle of the authorities referred to therein.

HIS HONOUR:   Thanks, Ms Wheatley.

MS WHEATLEY:   Thank you, your Honour.

HIS HONOUR:   Very well, the Court will adjourn until three o’clock.  Adjourn the Court please.

AT 2.40 PM SHORT ADJOURNMENT

UPON RESUMING AT 3.03 PM:

HIS HONOUR:   Yes, Mr Steele.

MR STEELE:   Thank you, your Honour.  Your Honour, can I make three points about the affidavit material filed by the defendant.

HIS HONOUR:   Yes.

MR STEELE:   In relation to Mr Sokoloff’s affidavit, the only evidence about fitness – or medical assessment is about fitness to travel; there is no evidence about any assessment of the treatment which might be available in Darwin to any of the plaintiffs should they be moved there.  In particular, I draw your Honour’s attention to exhibit TS‑1 in this regard and the reference to the requirement – sorry, does your Honour have that?

HIS HONOUR:   Yes, I do.

MR STEELE:   The reference in the second sentence and second line and following that:

family members will also require referral to Specialists within the public health system to facilitate assessment and treatment of ongoing medical issues.

In my submission, that suggests that there has been no current assessment of the medical facilities which are available in Darwin for the plaintiffs and, in particular, for the first plaintiff and the fourth plaintiff.

HIS HONOUR:   Yes.

MR STEELE:   In my submission, nothing in the affidavit goes beyond an assessment of fitness to travel rather than what treatment facilities may be available in Darwin.  In relation to the comment in paragraph 5 of Mr Sokoloff’s affidavit for the two other families in Nauru who require treatment, there is nothing in the material provided by the Minister which explains why those families cannot be sent to any other location in Australia, in the immigration system in Australia, and your Honour would think, given the comments made in paragraph 11 of Mr Feld’s affidavit about the large numbers of movements within the system per year, that it is perfectly feasible for the Department, or for the defendant, to move those families to facilities which are appropriate for them anywhere in Australia.

The question before your Honour is not a question merely of what is the appropriate policy decision undertaken by the Minister in this instance.  The question is, so the plaintiffs say, whether or not they have been accorded procedural fairness in relation to this particular decision.  What the Minister has pointed to in the affidavit material, in my submission, does not demonstrate any injury to the Minister, particularly given that there is no explanation for why the two other families in Nauru cannot be sent somewhere else.

If it is proposed to move this family to Darwin then, presumably, it is quite possible that – and this is not to undercut what may be the gravity of the situation of the two families in Nauru, they may have very serious problems, but there is no evidence about any other steps which the Minister might have taken in relation to those families, sending them to Melbourne or Sydney or somewhere else in Brisbane or Adelaide or Perth or Darwin.  In my submission, that tends to show that there is no injury which the Minister would suffer if the status quo was maintained pending the final resolution of this application.

HIS HONOUR:   Yes.

MR STEELE:   One further matter, your Honour, which may go to the balance of convenience and which is referred to in my submissions is the access to legal representation.  In that respect, your Honour, I refer you to the exhibit MPW5 to the affidavit of Mr Watt.  I think it is the second affidavit, the larger affidavit which is a press release from the defendant explaining that persons will essentially – or persons in the position of the plaintiffs will have to pay for their lawyers to contact them and have access to facilities.

At the moment their lawyers are in Brisbane and they are able to communicate and attend at the centre.  That will not be the case if it is in Darwin.  If there is an additional cost involved in the plaintiffs corresponding with their lawyers in Brisbane – especially given that there are two proceedings on foot ‑ in my submission, that is a matter which your Honour would take into account in assessing the balance of convenience.  It may not be as weighty as the medical ‑ ‑ ‑

HIS HONOUR:   I could not, could I, sensibly proceed on the footing that they will not – or that they will be impeded, or so impeded in obtaining access to their lawyers that they could not pursue their substantive – their claims for substantive relief?

MR STEELE:   Your Honour, there is no evidence that they would not be able to pursue those claims.  The only evidence is that it will be significantly more difficult for them and, in my submission, that is simply a matter which your Honour would take into account in assessing which party has the balance of convenience in this particular matter.  That matter does not affect the defendants at all.  It does not injure the defendant at all.  The

only injury which the defendant has pointed to, or the only potential injury, is not being able to move two families from Nauru into Brisbane.

HIS HONOUR:   Pinkenba.  Okay.

MR STEELE:   There is no evidence about where else they might go.  Is there any other particular matter which ‑ ‑ ‑

HIS HONOUR:   No, thanks, Mr Steele.

MR STEELE:   Thank you, your Honour.

HIS HONOUR:   Ms Wheatley.

MS WHEATLEY:   Thank you, your Honour.  Your Honour ‑ ‑ ‑

HIS HONOUR:   Now, can I just ask you – I am not trying to cut you off but it would help me if you could respond to those particular points that Mr Steele made.

MS WHEATLEY:   That is where I was going to go, your Honour.  The exhibit to Mr Sokoloff’s affidavit, my learned friend made – if I may – the submission that that inferred that there was not the necessary medical facilities in Darwin, at Blaydin.  In my submission, your Honour, the inference to be drawn from that email is, in fact, the complete opposite.  That email, by it saying that:

they will require Medical management with IHMS, family members will also require referrals to Specialists within the public health system –

in my submission, is a – the inference to be drawn from that is a recognition that consideration has been given to the medical facilities that are up there and that this email has been sent to the health services manager, noting that those people will need access to those facilities.  If those facilities were not there the email would not mention them and, in my submission, your Honour, that is the way the email should be read, not that there is no evidence about the medical position in Darwin.

Your Honour, in relation to paragraph 5, my learned friend made the submission that there is no evidence as to why those families need to come to Brisbane, if I can put it that way.  Again, in my submission, the inference to be drawn is that a consideration of where is the best place to take those two families has been made and the determination has been made that it would be best to bring them to Brisbane and to move this family to Darwin.  That is the consideration that has been had.  I accept that there is no other evidence about where else they might go but, in my submission, your Honour, what has been considered is that this is the place they should come and this family now, in the basis of this temporary accommodation, is trying to move them to another facility.

HIS HONOUR:   Yes.  I certainly would not be justified in proceeding on the footing that the decision to move this family to Darwin to make way for someone from Nauru who is in urgent circumstances was made frivolously or otherwise than in good faith.  On the other hand, what do you say about the fact that – or what do you say about what might actually be no more than a rhetorical point, which is surely there are other places in Australia where the Nauruans could go.  I suppose you would say it would be an unfair reading of the material to treat it as other than reflecting a decision in good faith.

MS WHEATLEY:   Yes.  Would your Honour like me to address you on the issues of – I should take you to a couple of issues in relation to the legal advisers and the ‑ ‑ ‑

HIS HONOUR:   Yes.

MS WHEATLEY:   Thank you, your Honour.  Your Honour, in the plaintiffs’ material there are a number of references to the plaintiffs contacting their lawyers by telephone.  Mr Sokoloff provides in paragraph 9 of his affidavit evidence of what facilities are available in Darwin to assist the plaintiffs in being able to access their lawyers and telephones, and telephones in confidential conference rooms where they can make those telephone calls without the use of a phone card can be ‑ ‑ ‑

HIS HONOUR:   What about the point that is made, which is that it would be more difficult and more expensive for them?

MS WHEATLEY:   Well, can I deal with that in two ways, your Honour?  In terms of more expensive, your Honour, if I may, the plaintiffs’ representatives at the moment ‑ and this is sworn to by Mr Watt ‑ are acting pro bono.  I did not understand, or do not understand that simply if they are transferred they would cease acting.  The material in paragraph 9 does say that there are also not only telephone facilities available but also video‑conferencing type facilities available, and there is the observation – sorry, your Honour, if you could bear with me for just a moment - in the Full Court’s decision of NAFC where at paragraph 25 their Honours refer to a decision of Justice Jacobson who observes that trials are now conducted:

by way of video link, it must be acceptable for the legal advisers to conduct conferences with their clients by video link unless there is a substantial impediment to its use.

In my submission, your Honour, that is available to the plaintiffs here at the facilities in Darwin.  They can use those video‑conferencing facilities there in a confidential way with their lawyers.

HIS HONOUR:   Do they have to pay for them?

MS WHEATLEY:   No, I am instructed that they do not pay for the video‑conferencing facilities, your Honour.  So, in my submission, your Honour, in terms of cost and expense, there would be no reason why the plaintiffs called their lawyers in relation to this very matter, and that is sworn to in their material.  There are interpretation services as well on the telephone – sorry, telephone interpretation services as well, which Mr Sokoloff has sworn to, so the same kinds of facilities that are probably utilised now when the plaintiffs ring from where they are in Brisbane to their lawyers in Brisbane now, they will just be in Darwin.

HIS HONOUR:   Thanks for that. In relation to the “serious question to be tried” issue, can I ask would you accept that in relation to the exercise of the power of detention under section 189 that the exercise of that power, though on its face untrammelled, is at least limited in the sense that – as in the case of Justice Madgwick’s decision that Mr Steele referred to – it could not be used as a – the power could not be used to inflict punishment, or to make the detention just that little bit more brutal?

MS WHEATLEY:   No, certainly not, but if I may, I did not understand that that was a submission that had been ‑ ‑ ‑

HIS HONOUR:   No, they are not making that submission.

MS WHEATLEY:   Thank you, your Honour.

HIS HONOUR:   In fact, that case – the decision of Justice Madgwick to which Mr Steele refers in his submissions, was a case in which the application by the detainee failed for the reason that the factual premise was not made out.  It was not suggested, as I read the case, that the power – sorry, it was accepted in the case that the power was limited in the sense that it could not be properly exercised to inflict punishment, but it was not suggested that it was otherwise limited.

MS WHEATLEY:   No, and we accept that proposition, your Honour; it cannot be used in that sense, but there is no suggestion in this case that it has been used in that sense.

HIS HONOUR:   No.

MS WHEATLEY:   In that sense, your Honour, perhaps I could refer you please to the decision that should be in our bundle of VLAH and the observations at paragraphs 10 and 11 where ‑ ‑ ‑

HIS HONOUR:   That is Justice Nicholson, is it?

MS WHEATLEY:   Sorry, I beg your pardon?

HIS HONOUR:   Is that Justice Nicholson’s decision?

MS WHEATLEY:   No, this is Justice Ryan’s decision, your Honour.

HIS HONOUR:   Yes.

MS WHEATLEY:   At 10 or 11, and why your Honour may be familiar with that decision because those observations of Justice Ryan were referred to by the Full Court of the Federal Court where your Honour was presiding in SBEG v The Commonwealth at paragraph 49.  In my submission, your Honour, if there is any difference there between the principles of his Honour Justice Ryan and Justice Madgwick then, in my submission, the principles of Justice Ryan should be applied.

HIS HONOUR:   Yes, I must say, I do not see a difference myself, and I was not suggesting there was one.

MS WHEATLEY:   No, thank you, your Honour.

HIS HONOUR:   Is there anything else you want to say?

MS WHEATLEY:   No, thank you, your Honour.

HIS HONOUR:   Mr Steele, do you submit that – well, I should put it to you more directly. It does not seem to me that I would be justified in taking the view that the power that has been exercised under section 189, albeit that it has been exercised in what would seem to be in a way which could have been explained more sensitively ‑ it does not seem to me that it is open to me on the material that you put before me to proceed on the footing that it has been exercised frivolously or otherwise than in good faith.

MR STEELE:   No, your Honour, that is correct.  The submission ‑ ‑ ‑

HIS HONOUR:   I mean, it does not seem to me as well that the decision of Justice Madgwick that you have referred me to goes beyond recognising that if there were an exercise of that power to move someone from one place of detention to another, otherwise than for the genuine purpose of keeping the person in detention, but for the additional purpose of inflicting just that little bit extra discomfort, his Honour’s decision does not seem to go beyond that, that view of the limitation on the power under section 189. Do you want to correct me on that?

MR STEELE:   Only to this extent, your Honour.  In the plaintiffs’ submission, the important aspect of the plaintiffs’ application is not that there was any capricious exercise of the power or that the decision is necessarily wrong, it is that they were not given – afforded procedural fairness in relation to ‑ ‑ ‑

HIS HONOUR:   I do understand that and I would not, on an application of this kind, be disposed to say that that view was unarguable, but the question of the – the seriousness of the question to be tried has to be judged in terms of the balance of convenience.  I have to say that in view of what is said to be a situation of urgency involving people on Nauru, and in the light of evidence which suggests that a decision has been made in good faith that the accommodation at Pinkenba is required to meet the situation of medical urgency involving people on Nauru, I do not think I will be justified in proceeding on the footing that that decision had not been made conscientiously having regard to the assets that are available to the Minister.

MR STEELE:   Certainly, your Honour.  I do not cavil with that.  In relation to Justice Madgwick’s decision, it is the case that his Honour refers to the scope of the obligation to provide procedural fairness and it varies according to the exigencies of the particular situation.

HIS HONOUR:   Yes.

MR STEELE:   So where there is some urgency that might diminish the obligation.

HIS HONOUR:   Yes.  One can well understand your clients’ sense of dismay at having an established status quo disturbed in such a brusque manner.

MR STEELE:   Yes, your Honour.

HIS HONOUR:   But that having been said, in light of the evidence that there is a situation of urgency involving people on Nauru, one can also see that the scope for consultation with your clients is limited.

MR STEELE:   That may be so, your Honour.

HIS HONOUR:   Well, I suppose it is how urgent is urgent?

MR STEELE:   Yes.  In my submission, the evidence provided by the defendant in that regard is not particularly ‑ I understand that there is nothing that I can say to contradict it, but it is, in my submission, rather spare evidence about the nature of the need by the other two families in Nauru, coupled with a lack of evidence.  My learned friend makes the submission that your Honour should draw the inference that there is no other place in Australia to which these people could be sent but, in my submission ‑ ‑ ‑

HIS HONOUR:   I think perhaps that I would not be justified in proceeding on the footing that the decision that there was not another place was not made reasonably and in good faith.

MR STEELE:   No, that is correct, your Honour.  But that does not, in my submission, necessarily dispose of the matter because if there is, in fact, somewhere else in Australia to which the other two parties could be sent, that has an impact on the circumstances, on the particular urgency faced by the Minister in dealing with the number of persons who are in detention.

HIS HONOUR:   Yes.

MR STEELE:   So it is certainly the case, your Honour, that nothing in the material that I can point to suggests that the Minister has acted in bad faith, or that the decision were not one which the Minister felt justified in taking, perhaps reasonably, but that does not necessarily then flow into an inference which your Honour should draw that the urgent circumstances were such as to deprive these plaintiffs of a right to be heard in relation to it.

HIS HONOUR:   Yes.

MR STEELE: Your Honour, the plaintiffs certainly understand that had they been given an opportunity to be heard, then provided the decision was then made properly, they would not have a proper basis to challenge that decision. They understand that the Minister does have power to deal with them under section 189, taking aside the first plaintiff and whatever difficulties may be faced by him. They understand that, your Honour. The only question which the plaintiffs have asked this Court to consider is, given the particular evidence about whatever the urgency is, should they nevertheless have been given an opportunity to be heard on the decision to move them.

It is certainly the case, your Honour, that the defendant’s material suggests that the defendant believed there was a basis to do so but, in my submission, your Honour would not then go further to say that that shows that there was a proper basis to do so, or the circumstances demonstrated that it was necessary objectively to move the plaintiffs.  In my submission, that must be relevant to the question of the scope of the duty to provide procedural fairness.

It is certainly the case, your Honour, that the plaintiffs do not say that if there is a genuine emergency the Minister cannot utilise his powers appropriately; that is not their argument.  Rather, their argument is that in the paucity of what ‑ ‑ ‑

HIS HONOUR:   One cannot hammer too much the paucity of evidence point, given the circumstances of urgency in which the matter has come on.

MR STEELE:   No, your Honour.

HIS HONOUR:   In saying that, I recognise that that is not your side’s fault, but then neither can I say it is the other side’s fault.

MR STEELE:   No, your Honour, I understand that.  All I can say is that the plaintiffs say that there is not sufficient evidence for your Honour to draw the conclusion comfortably that there were necessarily the circumstances of urgency which justified diminishing the obligation to provide procedural fairness.

HIS HONOUR:   Thanks, Mr Steele.

MR STEELE:   Thank you, your Honour.

HIS HONOUR:   It is times like this that one would appreciate the wisdom of Solomon.  I am going to stand the matter down while I consider my decision in relation to the matter.  Hopefully that will not be for longer than 10 or 15 minutes.

MR STEELE:   Thank you, your Honour.  Your Honour, if I could crave an indulgence?  My instructing solicitor just asked me to mention one other thing.

HIS HONOUR:   Sure.

MR STEELE:   That is a matter which goes to the balance of convenience.  It is referred to in my submissions, but if I can just place it before your Honour?

HIS HONOUR:   Yes.

MR STEELE:   It is that the other matter filed in this Court relating to the first plaintiff is due for mention on 23 April.  I think I mentioned that before, your Honour.

HIS HONOUR:   Yes, you did.

MR STEELE:   Nevertheless, in my submission, that is an additional matter which should be borne in mind in relation to the balance of convenience.  It does not go necessarily to the ‑ ‑ ‑

HIS HONOUR:   I have difficulty with that submission.  I must say, I am very concerned about the position of the first plaintiff because the first plaintiff – I appreciate there may be an argument that Ms Wheatley has not been invited to address, and I have invited her to address that argument to explain the basis on which the first plaintiff might be an unauthorised maritime arrival ‑ ‑ ‑

MR STEELE:   Yes, your Honour.

HIS HONOUR:   ‑ ‑ ‑ given that, in simple terms, he is an Australian.  But so far as the balance of convenience is concerned, given that on all sides it is accepted that his best interests are in staying with his family, it does not seem to me that his position can tip the balance one way or the other because whatever happens the best thing for him is to be with his family.

MR STEELE:   Yes, your Honour.  I certainly accept that.  My only submission about that is that his interests are also served by the prosecution, or the able prosecution, of his application and that, in my submission, will be diminished, or is likely to be at least somewhat diminished by moving him to Darwin.

HIS HONOUR:   While I think I would be justified in taking the view that it may be made more difficult, I do not think I would be justified on the evidence in taking the view that it would be diminished to such an extent as to be a real impediment.  Anything else?

MR STEELE:   No, thank you, your Honour.

HIS HONOUR:   Very well.  Ms Wheatley, was there anything you wanted to say arising out of that?

MS WHEATLEY:   No, thank you, your Honour.

HIS HONOUR:   I will stand the matter down.  I will not be any longer than I need to be.

MR STEELE:   Thank you, your Honour.

HIS HONOUR:   Adjourn the Court, please.

AT 3.32 PM SHORT ADJOURNMENT

UPON RESUMING AT 3.51 PM:

HIS HONOUR:   The plaintiffs are currently in detention in Brisbane at Pinkenba, pursuant to the Minister’s powers under section 189 of the Migration Act 1958. There are currently two proceedings on foot in relation to the detention and migration status of the plaintiffs.

On 2 April 2014, the Minister, or his delegate, decided to transfer the plaintiffs to detention in Darwin.  The plaintiffs were not consulted about the decision before it was made and were not given any opportunity to be heard in relation to the decision.  They were notified of the decision on that day.  They were to be removed the following day.  Negotiations led to an extension of time for their removal until tomorrow.

In these circumstances, an urgent application has been brought by the plaintiffs in relation to the decision to change the place of detention from Brisbane to Darwin.  They seek an urgent injunction restraining the Minister from taking or authorising any steps to change their place of detention.

The grounds of the application are said to be denial of procedural fairness and a failure to take into account relevant considerations relating to the needs of two of the plaintiffs for medical treatment and their need to be able to consult with their legal advisers in Brisbane in relation to the principal proceedings relating to their detention and migration status.

On the evidence before me I find that I would not be justified in proceeding on the factual basis that access to the parties’ legal advisers will be prevented or hindered to a degree that would substantially impede the prosecution of their principal claims.  The principal basis on which it is said that the balance of convenience favours the grant of an injunction is to the effect that evidence adduced on behalf of the Minister to the effect that the accommodation at Pinkenba is required to meet the urgent medical needs of families in Nauru is not sufficient to show that the balance of convenience favours the refusal of the injunction.

I have been invited to regard the evidence that has been adduced in that regard on behalf of the Minister as insufficient evidence that the people in need in Nauru could not be accommodated elsewhere in Australia.  In my view, I would not be justified on an application such as this – that is to say, an application brought on in circumstances of considerable urgency – in taking the view that the evidence which has been given is not sufficient to establish a decision made in good faith on the basis that the accommodation in Pinkenba is required in the exigencies of the case to meet the urgent medical needs of people in detention in Nauru.

That being so, it seems to me that the balance of convenience in this difficult case tips in favour of the refusal of the injunction which has been sought.  On that basis, I would dismiss the application for an injunction.

MR STEELE:   Your Honour, I was merely going to raise the question of remittal to the Federal Circuit Court, but I do not know that the Minister has had an opportunity to consider that.

MS WHEATLEY:   We would consent to the matter being remitted to the Federal Circuit Court, your Honour, for ‑ ‑ ‑

HIS HONOUR:   Well, on the footing that both parties consent to the remitter of these proceedings to the Federal Circuit Court, then I will make that order.  Mr Steele, your side handed up a consent ‑ ‑ ‑

MR STEELE:   Yes, your Honour.

HIS HONOUR:   ‑ ‑ ‑ which I have misplaced.

MR STEELE:   I may have a copy, your Honour.

MS WHEATLEY:   I have one here, your Honour, if that is of assistance.

HIS HONOUR:   Has your side signed it?

MR STEELE:   I do not think I have.

MS WHEATLEY:   Yes, your Honour.

HIS HONOUR:   Very well.  Can I have a look at it?

MS WHEATLEY:   Thank you, your Honour.

HIS HONOUR:   I will make an order in terms of the consent order signed by the parties and initialled by me and placed with the Court papers.

MR STEELE:   Thank you, your Honour.

HIS HONOUR:   Are there any other matters?

MS WHEATLEY:   No, thank you, your Honour.

HIS HONOUR:   Very well.  Adjourn the Court please.

AT 3.58 PM THE MATTER WAS ADJOURNED