Plaintiff M46 of 2013 and Minister For Immigration and Citizenship and the Officer in Charge, Melbourne Immigration Transit Accommodation and Secretary, Department of Immigration and Citizenship

[2013] HCATrans 158

[2013] HCATrans 158

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne   No M46 of 2013

B e t w e e n -

PLAINTIFF M46 OF 2013

Plaintiff

and

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Defendant

THE OFFICER IN CHARGE, MELBOURNE IMMIGRATION TRANSIT ACCOMMODATION

Second Defendant

SECRETARY, DEPARTMENT OF IMMIGRATION AND CITIZENSHIP

Third Defendant

Summons for directions

HAYNE J

TRANSCRIPT OF PROCEEDINGS

FROM MELBOURNE BY VIDEO LINK TO BRISBANE

ON FRIDAY, 26 JULY 2013, AT 9.01 AM

Copyright in the High Court of Australia

____________________

MS K.L. WALKER:   If the Court pleases, I appear on behalf of the plaintiff.  (instructed by Allens Lawyers)

MR S.P. DONAGHUE, SC:   If the Court pleases, I appear on behalf of the defendants.  (instructed by Australian Government Solicitor)

HIS HONOUR:   What is the position, Ms Walker?

MS WALKER:   In the matter M46, your Honour, could I hand up proposed orders.

HIS HONOUR:   Has your opponent seen these?

MS WALKER:   Yes, your Honour.  They provide essentially for amendment as foreshadowed at the last directions hearing before her Honour Justice Crennan, followed by remittal of the proceeding to the Federal Court and the addition of the Commonwealth as a party to the proceeding.  The first three orders, your Honour, are not disputed, as I understand my learned friend’s position.  The fourth order, you will see, your Honour, provides for the first defendant to pay the plaintiff’s costs of proceeding in this Court, and that is more contentious.

HIS HONOUR:   Leave aside this issue of costs for the moment.  Why is it an appropriate case to remit?

MS WALKER:   Your Honour, the amendments that are to be made and filed today involve a challenge to the decision of the Minister to refuse a visa on character grounds.  There are some complexities to that challenge that – I think the view was taken that it would be a matter more appropriately dealt with in the Federal Court.

HIS HONOUR:   Why?

MS WALKER:   It may be that there will be some need for, or at least an attempt to obtain documents from one or more of the defendants, a matter that would both be on one view inappropriately dealt with in this Court, but also might delay the more substantive issues around the detention of the plaintiff.  As your Honour is aware, in the separate proceedings of Plaintiff M76, issues around detention are raised in essentially the same terms as the way that they are raised in the proceeding in M46, and so the view was taken that with those proceedings going forward in this Court, it would be appropriate for the plaintiff to deal with the distinct issue of the challenge to the character assessment and the refusal of a visa under section 501 in the Federal Court at first instance.  Also, your Honour, to give this Court the benefit of findings of fact and reasons from a lower court ‑ ‑ ‑

HIS HONOUR:   Now, in M46, there is also, is there not, a certificate under 502?

MS WALKER:   That is correct, your Honour.

HIS HONOUR:   Is that the subject of the proceedings as proposed to be amended?

MS WALKER:   Yes, it is, your Honour.

HIS HONOUR:   Yes.

MS WALKER:   I think the other potential obstacle, your Honour, that I might just mention is that given the nature of the challenge to both the section 501 and the section 502 decision, the prospects of the parties reaching agreement might be more difficult, which is another reason why this Court might not be the most suitable venue.

HIS HONOUR:   There is obvious force in that.  What prompted my question was to be sure whether separate treatment of M76 in this Court, if that is to happen, would or would not be aided by consideration of at least some of the issues that arise in M46, but if the parties are content that the matter be remitted, that is the position at which we arrive.  As to this question of costs, why should you have your costs of the proceeding thus far?  Why should they not either stand simply reserved, or perhaps be your costs in the cause, or costs in the cause generally.  Why should I embark upon some determination now of the question of costs?

MS WALKER:   Simply for this reason, your Honour.  The proceedings as initially instituted involved an application for mandamus to achieve the outcome which was to obtain a decision from the Minister following, of course as your Honour would be familiar, the history of the matter, this

Court’s decision last year, and that decision occurred on 5 October 2012, with orders made on 29 November 2012.  On 9 January 2013, your Honour, a letter was sent to the plaintiff notifying him that the Refugee Review Tribunal had decided to remit the matter to the Department of Immigration and Citizenship.  On that date, the matter was in the hands of the Department and/or the Minister.  The plaintiff from his position was told nothing, notwithstanding correspondence to the Department and the Minister in relation to his matter, and by 14 May, some five months later, commenced proceedings to try to ensure that a decision was taken in a timely fashion.  My client is in detention, as your Honour is aware.

Your Honour, in the proceeding at an earlier stage, an affidavit was filed by Emily Nance, and that affidavit deposed to the fact that between a date shortly after 9 January 2013 and May 2013, various discussions took place between ASIO and the Department, but it was not until 9 May 2013 that a brief was sent to the Minister.  That was shortly before the proceedings were commenced, but the plaintiff was not informed that the Minister was even considering making a decision until 22 May 2013, after the proceedings had been commenced. 

So in relation, your Honour, to the application for mandamus, the plaintiff’s position is that that application in effect succeeded in the sense that the decision that was sought to be compelled has finally in fact been made, but from the plaintiff’s perspective, he saw no option but to institute legal proceedings because nothing was being done and he was told nothing until after the proceedings were commenced.

It is for that reason, your Honour, that we say the necessity to institute the proceedings for mandamus in this Court was brought about by the delay of the defendants, or one or more of the defendants.  The proceeding might not have been necessary, were it not for that delay.  It may be that some proceeding would have been necessary.  That is the matter that is now going to be remitted to the Federal Court, namely the challenge to the section 501 and the section 502 determination, but the proceedings in this Court for mandamus following the events that have occurred following this Court’s decision in Plaintiff M47, we say, your Honour, were entirely necessary from the plaintiff’s point of view but ought not to have been.

HIS HONOUR:   Yes.  Mr Donaghue, assume I was of the view that there should be the first three orders in the draft that has been proposed, what do you say about order 4?

MR DONAGHUE:   That the appropriate order, your Honour, is that the costs in this Court be costs in the cause generally to be determined in the Federal Court once the issues in dispute between the parties have actually been litigated, and a view as to their merits has been reached.

HIS HONOUR:   Just a moment.  Have not the issues about the grant of mandamus been overtaken by the course of events?

MR DONAGHUE:   They have, your Honour, but not in a way that we accept is properly characterised, as my friend characterises it, as the plaintiff having succeeded, because the process that led to the making of the submission to the Minister that led directly to that decision was a submission that went up before this proceeding was commenced, so in our submission ‑ ‑ ‑

HIS HONOUR:   And about which the plaintiff was told nothing.  A man is left in detention knowing nothing and he brings proceedings for mandamus and the Minister says, after they are brought, “We are thinking about it”.  Is that the position?

MR DONAGHUE:   Your Honour, there was, as I understand the position, a series of correspondence between my friend’s instructors and my instructors where her instructors sought information as to the process and were told that consideration was being given to what would happen, but was not given a third timeframe for when the decision would be made.  That is true.  But we submit that it was sufficiently evident from the documentary record that consideration was being given to the making of this decision, and the decision was that that process had progressed to a stage where a decision was imminent at the time that the proceeding was commenced.  I am not making any criticism of my friends for having commenced ‑ ‑ ‑

HIS HONOUR:   What is the best evidence that the plaintiff was on notice before commencement of the proceedings that a decision was imminent, as you describe it?  Where do I find that in the record?

MR DONAGHUE:   Your Honour, I did not submit the plaintiff was on notice that the decision was imminent.  They asked for advice as to when the decision would be made, and I do not suggest that they were given information as to that matter.

HIS HONOUR:   Just let me understand this.  They ask, and what are they told?

MR DONAGHUE:   They asked when a decision would be made, and I do not believe any of that correspondence is in evidence, your Honour, but my understanding of the record is that they were not told when the decision would be made ‑ ‑ ‑

HIS HONOUR:   What choice then did they have except to institute proceedings for mandamus?

MR DONAGHUE:   Your Honour, what the evidence does show is that the submission on 9 May asked the Minister did he wish to consider the exercise of his section 501 power.  Until the Minister had made that decision, it was not possible to advise the plaintiff whether the decision was in fact to be made on that ground because it was a matter for the Minister to decide.  It was not possible to give the information that the plaintiff sought until the Minister had made the decision that he was asked to make by the submission on 9 May.

HIS HONOUR:   That, I think, may represent, may it not, a fundamental misunderstanding of the consequence of the decision in M47 - may it not?  This Court held in M47 that PIC 4002 was bad, correct?

MR DONAGHUE:   Yes, your Honour.

HIS HONOUR:   There was an unresolved application for a protection visa.  Is that right?

MR DONAGHUE:   That is so, your Honour, which could have been resolved either by grant or by refusal under 501.

HIS HONOUR:   And the plaintiff sought determination of that decision.  Is that right?

MR DONAGHUE:   Yes, that is so.

HIS HONOUR:   The plaintiff had asked what was happening.  Is that right?

MR DONAGHUE:   Yes.

HIS HONOUR:   And was told nothing, other than that “we are thinking about it”.  Is that right?

MR DONAGHUE:   We submit that being told “we are thinking about it” is not being told nothing, your Honour.  The process was the Department was thinking about it.  It was actively thinking about it when the Minister was asked whether to make the decision under section 501, which he was asked to do before the proceeding which compelled him to do so was commenced.  In the end, your Honour, because of the course that events have taken, the rightness or wrongness of the claim for mandamus will never be litigated in this Court, but we submit that it should not be assumed on the partial record before the Court that the time that was taken by the

Department in preparing for the making of the 501 decision was inappropriate or that there had been a breach of the Minister’s duty by not making a decision sooner.

HIS HONOUR:   Are you asking then for time to put on further material?  I should say to you, my immediate impression of the matter would be that if you do seek such time, it will be at the cost of the party seeking the adjournment, but do you seek an adjournment to put on more material which would explain the course of events?

MR DONAGHUE:   I do not seek that, your Honour.  I simply submit that in light of the course that has been taken, your Honour should not on a costs application be asked to embark upon the question of whether there was an unwarranted delay in the making of the decision.  That would have fallen for decision in this Court had the application not been amended, but our friend is in effect inviting the Court to reach a decision on the substance of the matter when the substance of the matter has been overtaken.

HIS HONOUR:   Yes.

MR DONAGHUE:   That is all I wish to say, your Honour.

HIS HONOUR:   On 14 May 2013, the plaintiff filed in this Court an application for an order to show cause.  The application sought, as the principal relief claimed, an order absolute for a writ of mandamus requiring the Minister to determine the plaintiff’s application for a Protection (Class XA) (Subclass 866) Visa in accordance with law, a writ of habeas corpus in relation to the plaintiff directed to those officers of the Commonwealth responsible for his detention, alternatively a declaration that the plaintiff’s detention at Melbourne Immigration Transit Accommodation is and was unlawful and, further, a declaration that certain provisions of the Migration Act 1958 (Cth) are void as an invalid exercise of the judicial power of the Commonwealth.

The application for mandamus was made by the plaintiff following his success in proceedings Plaintiff M47 of 2012 v Director General of Security (2012) 86 ALJR 1372; [2012] HCA 46 in which the Court answered certain questions that had been reserved for its consideration. Following the answers that were given by the Full Court to the questions reserved by the parties in the form of a special case I made orders on 29 November 2012 including, among others, certiorari quashing a previous decision of the Refugee Review Tribunal and mandamus directed to the Tribunal requiring that Tribunal to hear and determine in accordance with section 415 of the Migration Act the plaintiff’s application for review of the Minister’s refusal to grant him the protection visa which he had sought.

Following the making of that order, the Tribunal considered the matter afresh in compliance with the mandamus which had issued and determined that it was a matter which should be remitted to the Minister for his consideration.  Despite those orders having been made, the plaintiff was left in a position where it became necessary for him, on 14 May 2013, to institute proceedings, which he did in this Court, seeking to compel the Minister to determine the application for protection visa which he had made so long ago and which had previously been the subject of proceedings in this Court in which he had, in effect, succeeded.

After the institution of the proceedings the Minister has now determined the application for a protection visa.  Other issues are sought to be agitated between the parties.  The parties agree that those are issues of a kind which it is better should be remitted for hearing and determination by the Federal Court of Australia.  There should be orders remitting the matter for determination by that court and the order for remitter should, of course, take the ordinary form.

In addition, however, the plaintiff now seeks an order that he should have his costs of the proceeding to date.  The plaintiff submits that the proceedings insofar as mandamus was sought have, in effect, succeeded.  The duty which the Minister had to consider the valid application for a protection visa, which the plaintiff had made, but which remained unperformed at the time of institution of the proceedings, has now been performed.

The material available in the matter as it presently stands is properly described as scant in its explanation of the course of events that has occurred.  The Minister, however, chooses not to seek to supplement that record.  On the scant material that is available on the record all that emerges is that after considerable delay the plaintiff instituted proceedings for mandamus, following which the duty which he alleged should be performed was performed.

In those circumstances the plaintiff should have his costs of the proceeding to date so far as they relate to the claim for mandamus.  Otherwise, the costs of the application should be reserved for consideration by the Federal Court on remitter of the matter.

There will be orders that, in addition: 

1.The plaintiff have leave to file the proposed amended application for an order to show cause dated 17 July 2013 in or substantially to the effect of the form of proposed amended application exhibited to the affidavit of Alexandra Janet Cuthbertson affirmed on 17 July 2013. 

2.The plaintiff should have leave to add the Commonwealth of Australia as fourth defendant in the proceeding. 

3.The proceeding should then be remitted to the Federal Court of Australia. 

4.The costs order should take the form I have earlier indicated.

Mr Donaghue, is there any reason why I should not dispense the plaintiff from the need to re‑serve the amended application by serving it on the Commonwealth?

MR DONAGHUE:   There is no reason not to make such a dispensing order.

HIS HONOUR:   There will be an order dispensing the plaintiff from the obligation to serve the amended process on the Commonwealth of Australia.  Is there any other matter that arises in this application?

MS WALKER:   No, your Honour.

AT 9.24 AM THE MATTER WAS CONCLUDED