Plaintiff M1/2021 v Minister for Home Affairs

[2021] HCATrans 52

[2021] HCATrans 052

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M1 of 2021

B e t w e e n -

PLAINTIFF M1/2021

Plaintiff

and

MINISTER FOR HOME AFFAIRS

Defendant

Application for a constitutional writ

GORDON J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON TUESDAY, 30 MARCH 2021, AT 9.31 AM

Copyright in the High Court of Australia

MR R.C. KNOWLES, QC:   Your Honour, if it pleases the Court, I appear with my learned friend, MS C. MINTZ, for the plaintiff.  (instructed by Corrs Chambers Westgarth)

MR C.L. LENEHAN, SC:   May it please the Court, I appear with MR B.D. KAPLAN for the defendant.  (instructed by Australian Government Solicitor)

HER HONOUR:   Thank you.  Mr Lenehan, can I have a chat with you first?

MR LENEHAN:   Yes.

HER HONOUR:   I have a number of questions which I hope will themselves explain my concerns.  When I look at the issue that is sought to be raised by the applicant’s application here, you properly identified in your response to the application for a constitutional writ in paragraph 10 that there is this ongoing issue which has been the subject of, now, numerous decisions both in the Federal Court and the Federal Circuit Court.  If one was to pick an example of the extent to which it has been the subject of debate in issue one would refer to the decision of Ali.  Could you explain to me what happened to Ali?  Was there any application for special leave?  I could not find one.

MR LENEHAN:   Your Honour, not that I am aware of.  I will just confirm that that is so.  No, your Honour, I am told that there was not.

HER HONOUR:   Right.  My next question is this:  are there other cases that are either in the pipeline by way of application for special leave that raise this issue or have been determined – in other words, is this the appropriate vehicle to deal with this issue or is there another case which has, in effect, the reasons for decision of a Federal Court or a Federal Circuit Court which would bring about the very matters raised in Ali to the forefront?

MR LENEHAN:   Your Honour, again, not that I am aware of.  In terms of a case that is in the process of special leave being sought, no.

HER HONOUR:   Is there anything that has been decided recently?  My researches could not find one, but it may be that I just missed it.

MR LENEHAN:   Our friends have a decision of Justice Griffiths which relies upon Ali.  I think that may be the latest and greatest, your Honour, but there may well be others.

HER HONOUR:   How would I find out?

MR LENEHAN:   Your Honour, I think the most efficient way would be for my instructors to tell me and for me to tell your Honour.

HER HONOUR:   You can see why I am asking.

MR LENEHAN:   Yes.

HER HONOUR:   This issue has to be resolved, it seems, once and for all. 
There are differing views between judges in the courts below.  Ali has a long description of the various cases and the various views expressed.  I understand the contention that S270 did not address it directly.  Whether that is right or wrong is a separate question, but it is clearly the view of some of the judges below.

MR LENEHAN:   Yes.  Your Honour obviously has concerns about whether this case would be an appropriate vehicle.

HER HONOUR:   I think it may be better to say this case raises this issue.  The only question is whether or not there is another case which has actually had the facts and the legal analysis undertaken by the court below and it could come up with it, or it could be the vehicle which seeks to address the issue and this one could be parked waiting for it.  I do not know.  All I am trying to work out is whether this is the case which should be the one that determines the issue.

MR LENEHAN:   Yes.  While those inquiries are being undertaken by Mr Kaplan with Ms Nance, can I say your Honour will have seen there is no factual controversy in this case.  That may suggest that at least some of those difficulties fall away.  Of course, your Honour does not have further findings of an intermediate appellate court which may…..

HER HONOUR:   Yes, I missed that last bit – which may what?

MR LENEHAN:   Which may be concerning your Honour.

HER HONOUR:   Yes.  If this matter was to go forward, would it go forward as a special case?

MR LENEHAN:   Your Honour, that, it seemed to us, would be the appropriate procedure.

HER HONOUR:   Have you had any conversations with Mr Knowles about that?

MR LENEHAN:   I am afraid I have been remiss, and I have not, your Honour, but I can see Mr Knowles nodding his agreement, so it seems that ‑ ‑ ‑

HER HONOUR:   There are some benefits of being on the – on whatever it is called these days.

MR LENEHAN:   Many benefits, your Honour.

HER HONOUR:   Exactly.

MR LENEHAN:   So, yes, your Honour, and that, of course, has happened in other cases where the constitutional writs…..  Smethurst is perhaps a recent example.

HER HONOUR:   Yes.  All right, while you are making those inquiries I might have a chat with Mr Knowles.

MR LENEHAN:   Thank you.

HER HONOUR:   Mr Knowles, do you know the answer to any of those questions that I just asked Mr Lenehan.

MR KNOWLES:   On the basis of our researches, we would agree, firstly, that Ali was not the subject of any special leave application and, secondly, we are also unaware – which is not to say that there is not a case – but we are unaware of any case that is imminently in the wings to come before the Court on this issue.

The only other point I would say about the matter – the vehicle is, as your Honour will have seen in the case of Ali, the relevant reasoning, which is set out at paragraph 6 of the reasons for judgment of the Full Court, is identical, we would say – is substantially identical to that which appears in this case.  There are some very, very minor differences, but by and large the reasoning is the same.

I also do not understand there to be any dispute in this case – and I will correct it, I am sure if I am wrong, but there have been representations made about the existence of non‑refoulement obligations in respect of this plaintiff returning to South Sudan, so there are representations that are made.  They are not identical to those that are made in Ali, but, in effect, what we have is a case in Ali which provides the reasoning, in my respectful submission, your Honour, that one would ordinarily seek in relation to the proper construction of section 501CA of the Migration Act.

HER HONOUR:   Yes, I see.  That is very helpful.  Mr Lenehan, there was one other question I had to ask you and that is this.  It seems to me that in terms of the extension of time it may be appropriate that if the matter was to be referred in, the extension of time was referred in as well.

MR LENEHAN:   Yes.

HER HONOUR:   Do you have any objection to that course?

MR LENEHAN:   No.  That seems to us to be appropriate, your Honour.

HER HONOUR:   Yes. 

MR LENEHAN:   I can give your Honour half an answer ‑ ‑ ‑

HER HONOUR:   If you want some more time to respond then you are most welcome to, because I think this is actually quite important.

MR LENEHAN:   Yes.  Perhaps I should wait then, your Honour.  I was about to tell your Honour of one Full Federal Court case, but it is not at the special leave…..

HER HONOUR:   I just missed all of that.  There is one Full Federal Court decision ‑ ‑ ‑

MR LENEHAN:   No, not yet a decision.  There is a hearing which is to take place on 31 May.

HER HONOUR:   Right.

MR LENEHAN:   It is a matter called FAK19 and we understand that the correctness of Ali is in issue there.

HER HONOUR:   Right.

MR LENEHAN:   That is to be heard by a Full Court comprised of five judges, though that is still the…..stage that your Honour perhaps has in mind.

HER HONOUR:   I think that even though that is arguably the position, it does not seem to me to dissuade me from the view, subject, of course, to what you, Mr Lenehan, and you, Mr Knowles, might say, that the parties should now prepare a special case and have this matter, in effect, ready to go.  If that matter then comes on there is no reason why they could not be heard together.

MR LENEHAN:   I think that is right, your Honour.

HER HONOUR:   Do you have any objection to that, Mr Knowles?

MR KNOWLES:   No, your Honour, and I should indicate that I do have instructions that there is no difficulty, for my client’s part, with the matter being dealt with as a special case.

HER HONOUR:   Right.  If that was to be done, how long do you think it would – if that were to be adopted is it possible for the special case to be prepared by 13 April?

MR KNOWLES:   I think so, your Honour, yes.  I do not see any difficulty with that.

MR LENEHAN:   Your Honour, yes, it should be a very straightforward special case essentially attaching the record.

HER HONOUR:   I think that is right.  I think it is – “perfunctory” is not the right word, but it is not something which requires massive intellect, is it?

MR LENEHAN:   No.

HER HONOUR:   The only other question I have is this.  Is ground 2 necessary, Mr Knowles?

MR KNOWLES:   We would say yes if the first ground, for whatever reason on the construction of section 501CA is not successful, it might be that via that formulation jurisdictional error is still made out.

HER HONOUR:   Yes, I see.  All right.  If a special case can be agreed between the parties and filed on or before Tuesday, 13 April, then these are the sorts of orders that I would propose.  What I propose to do is to read them out and ask each of you to comment on them to the extent to which you need to either adjust them or amend them.  Is that appropriate?

MR LENEHAN:   Yes.

HER HONOUR:  

1.The plaintiff is to file any special case agreed between the parties on or before Tuesday, 13 April 2021.

2.If a special case is filed in accordance with that order, then pursuant to rule 27.08.1 of the High Court Rules 2004 (Cth), the question stated by the parties in the form of the special case be referred for consideration by a Full Court on a date to be fixed.

3.In the event of a referral in accordance with that order, orders 4 to 9 take effect –

and they are as follows: 

4.Unless otherwise ordered or directed, Part 44 of the High Court Rules relating to written and oral submissions with any necessary variations or adaptions shall apply to this proceeding.

5.The plaintiff is to file the special case book on or before Tuesday, 20 April 2021.

6.The plaintiff’s submissions, book of further materials and chronology to be filed on or before Tuesday, 4 May 2021.

7.The defendant’s submissions and book of further materials to be filed on or before Tuesday, 25 May 2021.

8.The plaintiff’s reply to be filed on or before Tuesday, 1 June 2021.

9.Joint book of authorities to be filed by the plaintiff on or before Tuesday, 8 June 2021.

Mr Knowles, do you have any objection to any of those proposed orders?  I am sorry, I think you are on mute.

MR KNOWLES:   I am, sorry, your Honour.  No, no objection for the plaintiff’s part about any of those orders.

HER HONOUR:   Thank you.  Mr Lenehan?

MR LENEHAN:   Nor from the defendant’s point of view, your Honour.

HER HONOUR:   Thank you.  What I will do is I will make orders in those terms and once the special case comes in I will look at it, of course, but I do not expect there will be any difficulty given the nature of it.  That will include, as we have discussed, the application for an extension of time, which I think is appropriate given the facts and matters to be taken into account in consideration of that application, and if, in the meantime, the Full Federal Court matter, in a sense, gets a life of its own, then that is a matter that both of you will need to keep an eye on and it can be raised at an appropriate time if necessary.

MR LENEHAN:   Yes, we will, your Honour.  Your Honour, can I also mention, I am now told that there are no cases in the special leave pipeline.

HER HONOUR:   That is good.  That means my research has worked and that means the internal systems work, so I am very glad to be told that, Mr Lenehan.  I have great confidence now.

MR LENEHAN:   Thank you, your Honour.

HER HONOUR:   Anything else?

MR KNOWLES:   Not for the plaintiff, thank you, your Honour.

MR LENEHAN:   Nor from us, thank you.

HER HONOUR:   Thank you both very much for your assistance. 

Adjourn the Court.

AT 9.46 AM THE MATTER WAS ADJOURNED