Plaintiff M47/2018 v Minister for Home Affairs & Anor

[2019] HCATrans 9

[2019] HCATrans 009

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M47 of 2018

B e t w e e n -

PLAINTIFF M47/2018

Plaintiff

and

MINISTER FOR HOME AFFAIRS

First Defendant

THE COMMONWEALTH OF AUSTRALIA

Second Defendant

KIEFEL CJ
BELL J
GAGELER J
KEANE J
NETTLE J
GORDON J
EDELMAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 13 FEBRUARY 2019, AT 10.06 AM

Copyright in the High Court of Australia

MR R. MERKEL, QC:   If the Court pleases, I appear with my learned friends, MR L.T. LIVINGSTON, MR E.M. NEKVAPIL and MS C.G. WINNETT, for the plaintiff.  (instructed by Human Rights for All Pty Ltd)

MR S.P. DONAGHUE, QC, Solicitor‑General of the Commonwealth of Australia:   May it please the Court, I appear with MR P.D. HERZFELD and MS Z.C. HEGER for the defendants.  (instructed by Australian Government Solicitor)

KIEFEL CJ:   The parties will have received a letter from the Registrar of the Court written at the direction of the Court inquiring as to a preliminary question of fact and, in particular, what inferences the plaintiff seeks to draw from the facts concerning his alleged statelessness and the length of time which he might be detained and whether such inference is available.  The parties would appreciate that that issue must necessarily be addressed before the questions in the special case are addressed and the Court would therefore appreciate and would be assisted by argument in that regard before we move to the questions in the special case.  Mr Merkel.

MR MERKEL:   If the Court pleases.  We will address the three questions of the inferences as your Honours have requested.  We say in respect of the first inference that we would say can and should be drawn is that there is no real prospect or likelihood that the plaintiff will be removed from Australia potentially in his lifetime, alternatively during his natural life.  I will explain the basis for why we are putting it in this way shortly, your Honours.

KIEFEL CJ:   The distinction is not entirely apparent to me but perhaps you can come back to that.

MR MERKEL:   Yes, your Honour.  The second inference is that there is no real prospect or likelihood that the plaintiff will be removed from Australia within the reasonably foreseeable future.  Can I ask your Honours to note that we have deleted from both formulations the word “possibility” on the basis that we say real possibility and prospect are superfluous and “prospect” encapsulates what we mean by real possibility as distinct from a mere possibility.  I should say that the first two formulations of inferences are based upon the way in which the Court approached the Act in Al‑Kateb.

KIEFEL CJ:   The first inference that you seek to draw, just to be clear, is that there is no real prospect or likelihood that the plaintiff will be removed from Australia potentially or during the course of his natural life – is that the terminology?

MR MERKEL:   Yes, your Honour ‑ potentially in his lifetime, which picks up the wording used in some of the overseas cases to look at the potential removal in his lifetime, rather than try and have to predict what his natural life might be.  I can understand why there may not be a substantive difference but we did not want the Court to have to be distracted by asking the question of what the plaintiff’s natural life might be. 

KIEFEL CJ:   I see.

MR MERKEL:   “Potentially in his lifetime” encapsulates the nature and extent of the detention that he is currently confronting.

KIEFEL CJ:   The alternative inference is that there is no real prospect or likelihood he will be removed from Australia within the reasonably foreseeable future.

MR MERKEL:   Yes, and that is the finding upon which Al‑Kateb was based ‑ ‑ ‑

KIEFEL CJ:   Al‑Kateb was based.

MR MERKEL:   ‑ ‑ ‑ by Justice von Doussa.  I should say we have handed up to your Honours his Honour’s judgment in the book of authorities.  It does not have paragraph numbers.  We have handed up the judgment with paragraph numbers which we have referred to in our submissions.

The third inference we would ask the Court to make is that the plaintiff’s removal from Australia is no longer practically attainable and I should say, your Honours, just by way of explanation, that formulation picks up the approach of the United States Supreme Court on what we say, properly understood, is an analogous question and that comes from the decision of the court in Zadvydas 533 US 678 (2001), which is tab 29.

KIEFEL CJ:   Just to be clear, that is no longer practically maintainable.

MR MERKEL:   Practically attainable.

KIEFEL CJ:   Attainable.  Thank you.

MR MERKEL:   I should say we have handed up to your Honours ‑ ‑ ‑

KIEFEL CJ:   Is that not really a premise for the other two inferences?

MR MERKEL:   Your Honour, it is but we say that the difference between our third and fourth inference is that the first and second are endeavouring to look ahead and in effect anticipate what might happen in the future.  The third and fourth inferences are founded on the facts as they now exist and put what we say is an appropriate formula - may be a more appropriate formula than the way it was approached in Al‑Kateb based upon Justice von Doussa’s finding and is based upon authorities that really have approached the same question and we say that it – forensically, it is a more practical and realistic way of trying to look at what the situation is at present, and it picks up – sorry, your Honour.

GAGELER J:   Embedded in it by saying “no longer”.

MR MERKEL:   Yes.

GAGELER J:   You are embedding a temporal element that is somewhat obscured by that rather cryptic phrase.  What is the temporal element?  You cannot be just looking at this point in time.

MR MERKEL:   Or sorry, is not practically attainable, your Honour.

GAGELER J:   In some sort of timeframe?  Is there a timeframe built into question (3), or are we looking at the moment?

MR MERKEL:   We are looking at the moment, but within a timeframe, your Honour, that practically attainable looks at the facts now and asks is it attainable not just at the moment, but is it attainable, and we say as a matter of fact there is nothing in the current circumstances that would suggest it is practically attainable.

KIEFEL CJ:   But does that accept - and you will develop this obviously - as Justice Gageler points out, is it accepted that that might change?

MR MERKEL:   Yes, every one of these formulations accepts that there could be a possibility, a mere possibility of change.  But the way in which we ultimately approach the case is that we say that the duty to remove is merely suspended if these criteria result in the custodial detention becoming unlawful, that the mere possibility is not sufficient to have the necessary link between custodial detention and the purpose of removal, but the purpose of removal is maintained.

Can I just indicate to your Honours the Supreme Court’s holding in Zadvydas was the following year affirmed and summarised in a case we have handed up to your Honours, Demore v Kim 538 US 510 (2003), and the relevant page is 527, where they have endeavoured to summarise what Zadvydas stands for, but in a way very analogously to our law, which requires that the custodial detention have the requisite and sufficient connection with the purpose of removal.

KIEFEL CJ:   And that is your fourth inference?

MR MERKEL:   The fourth inference is based upon the Hardial Singh line of cases in the United Kingdom, and it is that it has become apparent that the defendants have not been able to effect the plaintiff’s removal within a reasonable period.  That is based upon Justice Dixon’s analysis of – again, analogous provisions in Lau v Calwell (1949) 80 CLR 533 at 581, which is tab 12. There is a Hardial Singh line of cases, but the encapsulation comes directly from R (O v Secretary of State) 1 WLR 1717 (2016), which is tab 26, and the relevant summary of the principle in those terms is at page 1734 in paragraph 46.

We have also handed up to your Honours the most recent formulation of the Hardial Singh principles in B (Algeria) v Special Immigration Tribunals [2018] AC and the power to detain in the terms of it are in paragraph 17 and the relevant principles are stated at paragraph 25. 

KEANE J:   Mr Merkel, does that mean that if it is now practicable to remove the plaintiff, the circumstance that he had not previously been removed within a reasonable period means that you win?

MR MERKEL:   I am not sure I would say that, your Honour.  We are looking at the state of affairs at present – there is a ‑ ‑ ‑

KEANE J:   I am just wondering what the utility of the fourth inference you are putting to us is?

MR MERKEL:   I am looking at it as at present and that it has become apparent that the defendants have not been able to effect the plaintiff’s removal within a reasonable period.

KEANE J:   Sure.

MR MERKEL:   I am looking at it as at present not in respect of a past default.  If there is a past breach, your Honour, that might take us to a different question which we are not putting before this Court as to whether the removal and the steps for removal have been taken with due diligence and if, for example, for three years the Commonwealth do nothing there might be an argument which we are not putting before this Court that that brings the right to detain to an end.

KEANE J:   If you are not putting the argument do you really need to entertain us with the fourth inference?

MR MERKEL:   Your Honour, it is just that in the Hardial Singh principles the question your Honour has put to me arises as an anterior principle - have they taken reasonable steps to effect removal that may render that detention unlawful?  But we are only looking at the endpoint.  We are not seeking to do any more than look at the situation as at present and say that on any of those inferences the relevance of which will ultimately depend on the Court’s holding about what is the question of construction and how it is to be determined in the present case - but ultimately on any of those four inferences we say the requisite link between custodial detention and purpose of deportation or removal is not sufficient to justify the custodial detention. 

So, we do not want to look backwards other than for the purpose of determining what the situation is at the moment.  We say all four criteria or inferences do that – look at all the circumstances and ask today is the link made out in the way that the constitutional requirement is expressed in respect of the Act in Lim. 

We would be contending that all four inferences are open and should be drawn on the evidence but the drawing of any one of them, we would say, is sufficient to sever the link that it identified with the result that the detention is no longer effecting or being – effectuating the plaintiff’s deportation.

NETTLE J:   That just cannot be right because if there is a prospect, a reasonable prospect that he be removed tomorrow it cannot be right because there is not move with reasonable speed until this point.  It is enough.  You must look forward.  It does not matter whether you take 1, 2 or 3 formulation – all 4 can ever be at most is some basis from which to draw the inference identified in 1, 2 or 3.

MR MERKEL:   Your Honour, I accept that so we would say that the fourth inference - are not able to effect the plaintiff’s removal within a reasonable time, so it unambiguously ‑ ‑ ‑

NETTLE J:   It is not an inference, it is a fact that you would have to prove and from which you might be able to draw an inference in 1, 2 or 3.

MR MERKEL:   That is so, your Honour, but we do not want to abandon the analogy that we say can properly be drawn with the Hardial Singh line of cases.

NETTLE J:   You are not arguing that he should be released because there has been a past breach.

MR MERKEL:   No.

NETTLE J:   You are arguing he should be released because there is no real prospect or likelihood that he will be deported.

MR MERKEL:   Yes, and all four ways, your Honour, are different ways of expressing that.

NETTLE J:   No, the fourth is not.  It is unlike all the others because it looks back rather than forward and what is back can be proved as a matter of fact rather than as a matter of inference.

MR MERKEL:   Your Honour, I accept that distinction.  Could I reformulate the fourth, is that it has become apparent that the defendants are not able to effect the plaintiff’s removal within a reasonable period.

KIEFEL CJ:   I thought you had narrowed it further to simply the defendant is not able and that would be is not presently able, is it not?

MR MERKEL:   Yes, your Honour.  We would say that draws the distinction your Honour Justice Nettle has raised with me, which we accept.  There are facts and then there is inference that may be drawn.

NETTLE J:   So we are looking forward for some period of time.

MR MERKEL:   Yes, yes.  We are not trying to cut off a line arbitrarily as at the date of this hearing.

GAGELER J:   So is the only real difference between your formulation 2 and your formulation 4, that formulation 2 is looking to the foreseeable future and formulation 4 is looking to a reasonable period.?

MR MERKEL:   Yes, your Honour, I think that is a fair comment.  The reason for it is the Al‑Kateb looks at “reasonably foreseeable future”, Hardial Singh principles look at “within a reasonable period” and that is precisely what Justice Dixon found in respect of a removal as soon as practicable in Lau v Calwell.

So, your Honours, we say that the drawing of any one of those inferences is sufficient for our case.  We endeavour to explain why that is so, and I will come back to this later, in paragraphs 9 to 12 of our outline.  But we want to make it quite clear that which of the findings, if any of them are made, or which of the inferences are to be drawn if any, is relevant – but whether it is relevant or determinative will depend on the Court’s construction of sections 189, 196 and 198 of the Act, and in particular, whether it accepts our submissions on the operation of proper construction of the Act of those – the relevant sections in the outline and in our plaintiff’s submissions at paragraph 47 and our reply submissions at paragraph 9.

Can I turn now to the second aspect of the questions that your Honour the Chief Justice asked us to address which is the factual basis on which those inferences are being asked to be drawn, but can I first do so in the relevant context.  There are just a few facts that we say need to provide the context for the more detailed evidence we will go to. 

The plaintiff arrived in Australia and was placed in, and has continued to be in immigration detention, that is custodial detention, as from 28 January 2010.  On 29 March 2010, he made a written request to be removed from Australia.  That comes in the special case at paragraph 57. 

Putting to one side the periods since 29 March, in which the plaintiff’s full protection and safe haven applications have been determined, the Commonwealth has been under a duty to remove the plaintiff as soon as – as reasonably practicable under section 198(1) of the Act.  The Commonwealth commenced its extensive investigations, which I will go to shortly, in relation to the plaintiff’s identity with a view to establishing a country to which he may be sent on 10 February 2010. 

So the context in which these facts are to be considered have been both the custody, which has now exceeded nine years, and investigations which have been carried on by the Commonwealth, and very extensive investigations, throughout that nine‑year period. 

The other matter we would like to mention at the outset is that in M96A, which is at tab 20 at page 594 at paragraph 22 – and I do not need your Honours to go there – it was accepted by the Commonwealth, and it would appear the Court, that the purpose of immigration detention is to assess objectively by reference to all the circumstances of the case. 

We have endeavoured in our submissions at paragraphs 4 to 13 and our reply submissions at paragraphs 2 to 7, and in our outline handed up today at paragraph 2, to set out what your Honours can find as a matter of fact from the circumstances.  Can I now go to those circumstances in order?  Given the time available, I will give your Honours case book references and take your Honours to some of the detail in some of them.

The first point we would wish to make is that the Court can infer that establishing the plaintiff’s identity is necessarily anterior to procuring any other country’s agreement to receive him via some resettlement arrangement.  The basis for that inference is twofold.  The Department has raised the plaintiff’s potential resettlement with the United States – that is at special case, paragraph 78.3 and the supplementary special case which America, it shows, has declined to consider that resettlement at paragraph 4.7.

The United Kingdom, in the special case at paragraph 78.4; New Zealand, in the special case at 78.5 and the rejection in the supplementary special case at paragraph 4.5; and Canada, in the special case at 78.6 with the rejection in the supplementary case at paragraph 4.5 all have responded that the inability to positively confirm the plaintiff’s identity would likely preclude the plaintiff’s settlement – that is in the supplementary case, 4.7; the special case concerning the USA at 78.3 and the supplementary case at 4.6, concerning Canada. 

The second matter we would seek to take your Honours to is that the Department’s position on making any headway on the issue of the plaintiff’s identity can be discerned from the most recent report of the Department.  Can I take your Honours to that relevant paragraph?  It is in the special case book at pages 507 to 508.  I just particularly want to address, your Honours, paragraph 55 at page 507 which refers to the plaintiff’s information raising issues of his credit concerning his identity and then the conclusion drawn:

Any determination as to his identity must be made exclusively on independently verifiable information, of which there is little at present.  It is possible that the results of the investigative avenues specified under the heading Information Gaps may generate further leads to verify or confirm the Client’s identity, but currently there is nothing in his interactions with the department that is capable of definitively establishing his identity. 

Then, at paragraph 57, the conclusion is that the plaintiff’s:

identity continues to be assessed as not supported and is likely to remain so until new, verifiable information emerges –

and the investigation is to continue.  Of course, those conclusions are also to be considered in the context of paragraph 76 of the special case, which says that – is an agreed fact:

The defendants are presently unable to point to any particular avenue of inquiry that is likely to succeed in establishing the plaintiff’s identity.

And:

In the absence of new information, the defendants will likely remain unsatisfied as to the plaintiff’s identity.

The third point we would make is that there is no real prospect of uncovering additional, independent identifying information that could resolve the defendants’ concerns about the plaintiff’s identity or, put another way, could satisfy the Court objectively that there is a third country that is either under an obligation to or is willing to resettle the plaintiff.

KIEFEL CJ:   Mr Merkel, what clearly sets this case apart from other cases, including Al‑Kateb, is that a large part of the difficulty, it would seem, in establishing his former residence, his nationality or his identity is the plaintiff has not – well, it cannot be said that he has not volunteered information; he has volunteered many, various, inconsistent, conflicting accounts.  The report to which you have referred at page 503, paragraph 39, entitled “Credibility”, suggests that the basic details the plaintiff gave of his movement around Europe may likely true, but it is:

likely he is concealing details as his memory is extremely strong in some aspects and extremely weak when it comes to areas that are more pertinent to confirming his identity.

That puts this case in quite a different light from others.  What is the Court to make of drawing an inference where the plaintiff does not assert that he has no information pertinent to himself, but he is not divulging it.

MR MERKEL:   Your Honour, there are a number of answers.  That is one of many circumstances that are relevant to the objective determination ultimately to be made that he has been found by the Department properly and reasonably to lack credibility in much of what he said; not necessarily everything.  But the second and more important matter, your Honour, is whether objectively there are any circumstances which it can be established that he is concealing that could possibly fall within what has been defined as independently verifiable information.

I will take your Honour through all of the facts, but ultimately the conclusion which we ask the Court to come to is that this credibility issue ultimately comes down to no more than that the Department suspects – and this is borne out in some of the delegate’s decisions that the plaintiff has concealed some information which might assist.  But the Department is not able to identify what that information is and ‑ ‑ ‑

KIEFEL CJ:   Well, that is chicken and egg, is it not?

MR MERKEL:   Well, except, your Honour, we will go to the information that was derived from Norway.  There is objectively identifiable information about who he is, which has been established by his ‑ ‑ ‑

KIEFEL CJ:   Which he contradicted later.

MR MERKEL:   No, not the objectively identified information that shows his identity in Norway, your Honour, which was where he went to school in 2004 until he left in 2010.  It was his country of residence.  It has been independently verified that he went there as a schoolboy.

KIEFEL CJ:   Although there is some doubt about his age.  I mean, there are doubts all the way through.  Could I just clarify two aspects, Mr Merkel, and I shall leave you of course then to develop your argument about the facts and how the Court approaches this rather unusual case.  It is not suggested - I do not understand from your written argument and submissions that the plaintiff asserts that he has no memory at all from whence he came, where he was before Norway, connections he has had with certain countries; I do not understand that to be the case. 

Rather, he has given conflicting stories.  Each of them, there has been an attempt to verify, and there have been difficulties.  And I do not understand that it is suggested that the plaintiff suffers from any mental health issue.  The transcript of directions before Justice Gordon indicates that that matter was raised with the plaintiff’s legal advisers, and the Court was informed that there were effectively no issues.  Am I correct in that?

MR MERKEL:   Can I answer it in a more neutral way, your Honour?

KIEFEL CJ:   It was raised directly with you, Mr Merkel.

MR MERKEL:   No, I was not at the directions hearing.

KIEFEL CJ:   I am sorry, it was Mr Burnside.  I do apologise.

MR MERKEL:   Whatever the answer is, I accept, but the shorter answer is that we have not put in the special case anything that would come into the category your Honour has put to me.

KIEFEL CJ:   But the question of whether there should be some examination or whether it was suggested that there were any mental health issues were raised directly with senior counsel then appearing for the plaintiff.  So we must proceed on the basis that there is nothing.  It is not suggested that the plaintiff suffers from either a lack of memory or any mental health issue which would prevent him from volunteering information which he has personal to himself.

MR MERKEL:   Your Honour, he has volunteered conflicting information, we accept that.  We have not put forward a mental health explanation for that, we accept that.  But we also ‑ ‑ ‑

KIEFEL CJ:   Nor asserted any problems with memory.

MR MERKEL:   I do not think we have – I think we go by what is in the special case, your Honour.

KIEFEL CJ:   Yes.

MR MERKEL:   And I do not think we can say that.

KIEFEL CJ:   No.

MR MERKEL:   So we accept that credibility issue has arisen.  But ultimately, your Honour ‑ and this is why I wanted to take you through this material quite comprehensively to the extent I can in the time – ultimately, credibility alone and suspicion that something may not have been forthcoming is not a substitute for identification of any facts that could possibly change the current situation, or any facts that have a real prospect of changing the current situation.

Those facts necessarily are something relating to where he may be born or something identifying his parents in a way that some third country would recognise him to be a parent of its nationals and, therefore, open a gateway towards resettlement or if it be put that other countries might consider resettlement, some facts of that kind that would overcome the present problem.

GORDON J:   Can I ask a question, Mr Merkel, and that is this?  I would be very grateful if you would address the contention, as I understood the Commonwealth’s submissions and the facts, that he is not co‑operating.

MR MERKEL:   We say that is not a fair view of the facts and I will take your Honour to it.  The only thing he is not co‑operating – has not put within that category is the failure to go, as it turns out while he is in Canberra, to the Moroccan and Algerian embassies.  His solicitor wrote a letter – that is the only failure to co‑operate.  I should say there is a finding by the delegate of the Minister that the plaintiff had - and I will take your Honours to it - given all relevant information and used reasonable endeavours within the statutory test to give any information that would be verifiable about his identity and his past.

KIEFEL CJ:   In particular, whether or not he is potentially Algerian, which would require him to speak Arabic so that it can be assessed.

MR MERKEL:   Yes, but again that takes us on a certain merry‑go‑round, your Honour, because what happened is - and I will take your Honours to it - but jumping ahead for your Honour Justice Gordon’s question ‑ ‑ ‑

GORDON J:   I do not seek to take you ahead.  I just seek to say that I think that when you get to the assertion that it is just conflicting stories you will need to address the contention which seems at least arguably live on the facts that he has not co‑operated at points and is currently not co‑operating.

MR MERKEL:   Your Honour, co‑operation in the past has to have an outcome.  The evidence is that he had interviews in 2012, which I will take you to, with the Moroccan Embassy where they said he is Algerian and declined to accept him as Moroccan.  He went to the Algerian Embassy.  They listened – they had his fingerprints and had recordings - and I will take your Honours to this passage – they then said he is not Algerian. 

The Commonwealth stopped going on the basis of some late view of accent and got an expert linguistic analysis done of his early recording which was the time it was most relevant rather than now affected by nine years of detention and that concluded with 80 per cent confidence or accuracy that he did not have an Algerian dialect but spoke with a Moroccan accent and he did not have – he could not speak Hassaniya. 

That sent the Commonwealth back to say, well, he should now go back to the Moroccan Embassy but the Moroccan Embassy has declined any recognition of him and we wrote and said in respect of the invitation - and it is set out in the supplementary special case - is there any basis that the Moroccans have put forward that they might change their mind, is there any information you specifically want and can you put any questions that you would wish to raise in writing so we can answer them.  The Commonwealth did not respond to that.  They just called off the interview and brought both the Algerian and Moroccan Embassy inquiries to an end.

What we are left with ultimately, and this is the bottom line of the facts that I propose to take your Honours to, is that there are no objectively or independently verifiable – there is no independently verifiable information the Commonwealth is able to point to that the plaintiff has failed to present, or that he could have a capacity to present ‑ ‑ ‑

GORDON J:   Is that right, given paragraph 75 of the special case?  I just choose one example, Mr Merkel.  I just want to make sure I understand what you have just put to the Court.

MR MERKEL:   Yes, your Honour, because ‑ ‑ ‑

GORDON J:   But that is not – the Algerians are not saying he is not Algerian.  They are just saying until you speak Arabic we cannot work out whether you are Algerian.  Is that not the position?

MR MERKEL:   Yes.  But, your Honour, I will take you to the passage.  They were given the recordings of his original interviews, which the linguistic analysis said did not have an Algerian accent.  So they had those recordings, and I will take your Honour to that.

NETTLE J:   But it is true he refuses to speak Arabic in the interview, does he not?

MR MERKEL:   That is true, your Honour.

NETTLE J:   Why does he refuse to speak it, if he has nothing to hide?

KIEFEL CJ:   Particularly when the day prior to his interview he claimed to be from Algeria.

MR MERKEL:   Your Honour, I can only go on what the record shows, which is that irrespective of whether he refused or not, the Algerian Embassy had the most reliable recording they could ask for.

NETTLE J:   Well, you have said that.  But obviously for him to speak it would be more valuable.

MR MERKEL:   With respect, the linguistic analysis says that the best time to check is the recording, which was taken at the time of his arrival in Australia in 2010.  Your Honour, that linguistic analysis has firmly said he is not Algerian.  It is one thing to say he refused to speak Arabic to the Algerian Embassy.  It is an entirely different thing to say that that could have had any consequence; because the consequence is that the Commonwealth, in its most recent submissions, have dropped any claim, in effect, or substituted a claim that he should go to the Moroccans again, because he has a Moroccan accent.  There is no basis for ‑ ‑ ‑

KIEFEL CJ:   I thought it was an Algerian accent.

GORDON J:   Algerian, I think, Mr Merkel. 

BELL J:   Mr Merkel, if you go to the supplementary special case at paragraph 4.2.2, it is stated that:

The Department advised the Plaintiff’s solicitor that it considered it crucial that any proposed meetings with the Moroccan and Algerian Embassies take place in person, in order to provide Embassy officials an opportunity to speak to the plaintiff in Arabic.

Now, whether your contention be right or wrong respecting the superiority of a recording taken nine years ago, the evidence would seem to be that, in the view of the Commonwealth, in its endeavours to establish identity, it is crucial that the plaintiff co‑operate by going to each of the Moroccan and Algerian embassies and agreeing to speak in Arabic.  The refusal to do so does tend against support for the inferences since, on one view, it is in the plaintiff’s hands to take steps that the Commonwealth considers crucial to the resolution of matters bearing on whether there are countries that would receive him.

MR MERKEL:   Your Honour has addressed the supplementary special case.  At paragraph 4.2.1, we say the response of the Solicitor to the Commonwealth, particularly in view of the 2012 situation, which I think I do need to take your Honours to because this matter was covered comprehensively in 2012 and it is not suggested any further facts or information would be relevant.  But at 4.2.1 what is really put there is that to check – can I just go back one step.  The Commonwealth has generated a great deal of activity since early 2018, after a great deal of inactivity over a long time, once it was foreshadowed that these proceedings would be pursued and commenced. 

One needs to have a certain degree of caution about looking at what is being asked for during that period, having regard as to what has happened over the last eight years prior to that period, and it is in that context that the Solicitor had written to the Commonwealth asking that the reason for declining to attend is that:

the utility of such a meeting has not been demonstrated by the Commonwealth, because there is no evidence: (i) that the Embassies have expressed a willingness to reconsider the positions they respectively adopted in 2012 as to the Plaintiff’s identity or nationality (specifically, the Moroccan Embassy’s position that the Plaintiff is not Moroccan, and the Algerian Embassy’s position that it could not confirm the Plaintiff’s identity and nationality); (ii) that the Embassies consider that a further interview with the plaintiff in Arabic could of itself provide evidence that might change their respective positions; or (iii) that further interviews between the Embassies and the Plaintiff could overcome the matters stated at paragraph [76] of the revised special case.

The Department advised the Plaintiff’s solicitor that it considered it crucial that any proposed meetings with the Moroccan and Algerian Embassies take place –

But the solicitor for the plaintiff offered to respond to any written questions.

BELL J:   But no request for written questions was made.  A request was made which may not have been productive of an outcome that cast light on identity, but plainly arguably might have assisted, and no explanation is offered for the refusal to comply.

MR MERKEL:   When you say no explanation is offered, if your Honour regards that as not an explanation, then I cannot say any more was offered than I have just read out to your Honours.

NETTLE J:   What is to lose by going to the interview?  Why write back artful letters?  Why not just say, “All right I will go”, and go through it, and then say, “Well, that didn’t help very much”.

KEANE J:   It is the taking of the adversarial position when, as has been said, there is nothing to lose. 

NETTLE J:   Unless, of course, there is something to hide which it is feared might be found out were there co‑operation.

MR MERKEL:   Your Honours put the explanation – I suppose I should take you to what happened in 2012, in fairness to the plaintiff, because I think that does raise the question ‑ ‑ ‑

KIEFEL CJ:   Yes, Mr Merkel, please.

MR MERKEL:   It raises the basis for the questions the Solicitor had asked.  It is in the special case book at 327, your Honours.  At page 327 it has got the interview with the Moroccan Embassy on 31 May 2012.  It starts off with an email from Elvir Tupkovic and it talks about organising the meeting and it is:

The following is noted:
- Moroccan officials confirmed that the client is not Moroccan.
- The officials advised that the client is not from Western Sahara. 
- The officials advised that the client appears to be from Algeria, being an Algerian Berber ‑ ‑ ‑

KIEFEL CJ:   You are being careful about redacted material are you not, Mr Merkel?  This is confidential material. 

MR MERKEL:   Your Honour, is that redacted from the ‑ ‑ ‑

KIEFEL CJ:   Well, it is coloured on our copy.

MR MERKEL:   Would your Honours excuse me?  No, it is not redacted, your Honour.  I think it is highlighted because that is what the record is.

KIEFEL CJ:   Very well.

MR MERKEL:   My understanding - and I hope I am corrected if I am wrong - is that is the plaintiff’s name is not mentioned - I will not mention in open court.

KIEFEL CJ:   I see.  Well, names, plural.  Yes.

MR MERKEL:   Yes, your Honour: 

- The officials advised that the client appears to be from Algeria . . . 
- The officials stated that the client speaks fluent (and not childlike) Algerian Berber dialect.
- The officials are able to speak Berber, Algerian and Moroccan -

and so forth.  They used those languages as part of the interview:

- The officials stated that the client could not confirm that he is from Las Palmas ‑

Further down:

- The officials stated that the client did not speak Hassani (language used in the region of Western Sahara).
- The officials advised they are happy to conduct a fingerprint check . . . 
- The officials stated it would be useful to contact the Algerian Embassy . . . 

We now know that there was a fingerprint check.  Can I just say to your Honours, when your Honours put the context of the topic of co‑operation in context, at paragraph 74 of the special case you have the foundation for the delegate’s finding that the plaintiff has taken reasonable steps to provide objectively a verifiable information of the kind that might lead to his identity, and 74 sets out the extensive checks that have been made.  Can I go then, your Honour, to paragraph ‑ ‑ ‑

GORDON J:   Just before you leave that though, the next paragraph of that email is, in a sense, of equal importance about this co‑operation which we are now looking at, because it goes on to say that the Moroccan Embassy received a call from someone whose name was set out there, which was one, as I understand, of the names used by the plaintiff, advising that he was detained, that he spoke fluent Algerian Arabic as well as Algerian Berber.  So we have this, in effect, issue from this time, from 2012, being an issue which is now the subject of the request. 

MR MERKEL:   Then it goes on to say that this was presented to him and he claimed it was not him.  But I can only ‑ ‑ ‑

GORDON J:   I accept that, but ‑ ‑ ‑

KIEFEL CJ:   But that the story was very similar to a story he had previously told under another name.  It is going to take a while to get through these facts, you realise, at this rate, Mr Merkel.

MR MERKEL:   Your Honour, I appreciate that.  I was going to take your Honour next to the Algerian Embassy ‑ ‑ ‑

KIEFEL CJ:   Yes.  Where is that?

MR MERKEL:   ‑ ‑ ‑ which is at 328 on 28 June, and I will not read it all to your Honours, but it sets out, say, starting from two‑thirds of the way down:

Mr Hadj Moussa mentioned on the way home that he would at a minimum need to know the [plaintiff’s] true date of birth and the name of his parents in order to follow up with authorities in Algeria.  [The plaintiff] did not provide these details during our interview and maintains his assertion that he simply does not know.  I know this is not the outcome we were hoping for ‑

This is the internal memorandum:

but nevertheless, I think this was a very worthwhile exercise – 

Then over the page ‑ ‑ ‑

BELL J:   Just before one goes to that, one sees there reference to the plaintiff’s unwillingness to speak in Arabic on that occasion.

MR MERKEL:   That is so, your Honour.

BELL J:   So that has been - in 2012 his co‑operation did not extend to speaking in Arabic, and that continues.

MR MERKEL:   Your Honours, I cannot dispute that had the plaintiff taken every possible step ever asked of him whether reasonably or unreasonably to try and co‑operate that that has not – I cannot say that has occurred but ultimately the question becomes not his co‑operation but what are the facts and what are the prospects of any facts emerging that can solve this ‑ ‑ ‑

KEANE J:   What makes that so difficult is absent his co‑operation one cannot know what the prospects are.  I mean, you are surely not suggesting that your client can, by non‑co‑operation, make it impossible to know who he is and where he is from.

MR MERKEL:   No, we do not suggest that, your Honour.  We suggest ‑ ‑ ‑

KEANE J:   Then that is the relevance of the absence of co‑operation, is it not?  But absent co‑operation, one cannot know, one cannot seek to know, but with co‑operation one may know.  But what you cannot ask us to infer is that absent co‑operation it is impossible to know.

MR MERKEL:   Your Honour, what we are endeavouring to do – not all that successfully up to date is to show that the information gap that the Commonwealth Department is seeking to close at the subjective level is not matched by the evidence objectively of what circumstances or information is able to be produced and is available to be produced if we change the current situation.

KIEFEL CJ:   No.  Is not the correct view of evidence in the context of the courts when inference – particularly when inferences are sought to be drawn and we are looking at the strength of the evidence - you look at the evidence that it was in the power of one person to give and the power of the other to contradict.  That is the area we are in.  You would be familiar with that statement, I think, Mr Merkel.

MR MERKEL:   I am, your Honour.

GORDON J:   The way the US Ninth Circuit put it is does he have the keys in his pocket, that is, are there steps that could be taken that would assist him.  I know it is in the context of due process but it is, in effect, a question which begs an answer and that is why the co‑operation is relevant.  Does he have the keys in his pocket to get himself out?

MR MERKEL:   I appreciate the force of what your Honour is putting to me.  We have approached the submissions, possibly wrongly, but we have approached the submissions on the basis that objectively the only matter that might – information that might come forward that could produce a change in circumstances is independently verifiable information based upon what the Department’s criterion is and there is no basis in any of the material to identify any independently verifiable information that is prospectively available. 

In other words, over nine years we have had interviews of the kind I have taken you to, fingerprint checks, follow up on social contacts, every possible line of inquiry one could imagine and I had not yet taken your Honours to but if I can just summarise it as to the significance of it - I have not taken your Honours to Norway because there is objectively verifiable information in Norway which is at pages 92 to 93 of the special case book where, particularly at 93, the information which falls into the category of independently verified information says that the report from the Norwegian Embassy said that the plaintiff’s date of birth, which was accepted in Norway, was the date there set out and that he has a residence permit valid until 24 September 2010.  So it is not accurate to say that the plaintiff has no identity.  He has a clear‑cut and established identity in respect of Norway, and a place of residence. 

Then a photo is produced, so it is the same person, and in “Identity Confirmation” it is said in April 2010 Interpol in Canberra forwarded a response from Interpol Norway confirming that the fingerprints from the databases matched the identity of the plaintiff and the fingerprints were registered in the files and obtained in Oslo in April 2004.  Then they say that the Norwegian police have concluded that the right date of birth is the date there set out and that date is then verified. 

Later on in the papers, the Department spoke to a woman who was at school with the plaintiff in Norway.  So we know that he went there to school, and in the reports of the RRT, in the first Refugee Tribunal case at special case book 165, at paragraph 94, the Tribunal found his place of habitual residence is Norway:

where he has lived from 2004, and where he has attended school, done work experience and participated in sporting events.

Then at paragraph 95, at special case book 165, from 2004 to 2010 the plaintiff:

lived in Norway as the holder of a humanitarian visa . . . he attended vocational schools there, found a work experience placement, participated in sports events and established a circle of friends.

Then at special case book 506, paragraph 51, there is an interview with a woman by telephone from Norway who confirmed she knew the plaintiff in high school.  So that what we say needs to be taken in the balance as well, your Honours, is that none of that independently verifiable information provided by Norway contradicts the identity claimed by the plaintiff but also, in light of that objectively verifiable information, there is no suggestion in any information coming from Norway that the plaintiff has any identifying information about his parents or his place of birth or any third country that could provide him with country of nationality.

We know that on the special case books he had been removed from other European countries back to Norway, Norway was his place of habitual residence.  So it is not as if we have a person who has no background whatsoever.  He has that period from 2004 to 2010 in Norway, which does not suggest that any of the information the Commonwealth is now seeking is available.  That is one part of the total information.

NETTLE J:   Did you say there is no information to suggest that he has no information about his parents?

MR MERKEL:   That is a double negative, I suppose, your Honour.  What I am really saying is that, notwithstanding the capacity and the investigations the Commonwealth has made with Norwegian authorities and the plaintiff having been granted a humanitarian visa and having gone to school and resided there for six years, nothing has emerged that suggests there is information available as to his parents or his background other than in Norway.

NETTLE J:   Has he not changed his story at least once about his parents’ identity?

MR MERKEL:   He has, your Honour, which goes back to the credibility issue, but I am looking at information that was available from Norway and it is not suggested in any of the material or the Commonwealth’s investigations during that six‑year period, when on the face of it he had nothing particularly to hide, that he knew of his parents or had any information about his parents.

KIEFEL CJ:   Well, you cannot really say that he had nothing to hide.

MR MERKEL:   I suppose, your Honour, all I can say is that on that ‑ ‑ ‑

KIEFEL CJ:   He was then what he said he was and he later contradicts it and says he was not, so that does not take us terribly far.

MR MERKEL:   No, the credibility issue I cannot quarrel with, your Honour, but I am taking your Honour to information that comes up independently of what he said.

NETTLE J:   But you are asking us to draw an inference from objective fact that there is no basis to suggest that he knows the identity of his parents.  There is a basis to suggest that he knows the identity of his parents, which is that he has told falsehoods about it.

MR MERKEL:   As I said, your Honour, I cannot resile from the Department’s suspicions and its belief which I have said is properly founded that there is the credibility issue the Department has indicated.

NETTLE J:   I do not mean to stretch the point, Mr Merkel, but unless it is suggested that what is contended for by the Commonwealth is not soundly based in the facts - and as at present advised, it appears to me that it is - I cannot see what the point is of saying that the objective evidence does not establish that he does not know.

MR MERKEL:   Could your Honours just excuse me for a moment?

NETTLE J:   Certainly.

MR MERKEL:   Your Honours, could I ask for a slightly earlier break to see if I can assist your Honours further on this?

KIEFEL CJ:   Yes, Mr Merkel, we will take our morning break now.

AT 11.02 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.19 AM:

KIEFEL CJ:   Yes, Mr Merkel.

MR MERKEL:   If the Court pleases.  In view of the matters your Honours have raised with me we have raised those matters with the plaintiff and he has instructed us that he is prepared to go to interviews with the Moroccan and Algerian embassies and speak in Arabic to them.  He has also instructed us that he is agreeable to co‑operating with any reasonable request that the Commonwealth may make.

In those circumstances, we would ask if the Court would adjourn the current proceeding to enable the steps that have been foreshadowed by your Honours with me to be able to be carried out and if the parties can agree on it, a further supplementary special case be created to bring the matters up to date and the Court will then determine what the future conduct of the matter would be.  I understand my learned friend opposes that request for an adjournment.  We can explain ‑ ‑ ‑

KIEFEL CJ:   It is hard to know what the shape of the future – what shape this now takes and whether or not – what is going to be involved with full co‑operation.  That might mean fact‑finding.

MR MERKEL:   Your Honour, that is why we would ask for an adjournment and it no doubt could come back for directions before a single Judge to see whether it is appropriate at that point to go to a Full Court.  Our real problem, your Honour, at this stage, is that the facts have been dynamic, in the sense that the matter was fixed for hearing.  There were requests to attend the Moroccan and Algerian Embassy.  We had to agree on a special case, which meant that we had to agree on the facts as they then were, and this issue obviously has come up as a significant issue.  But on the other hand, the case obviously raises very important questions about the Act in its current form.

The plaintiff has been in detention for nine years and on the way the Commonwealth is putting its case that could continue indefinitely.  Your Honours, we would say that in those circumstances an adjournment is appropriate.  The alternative would be for the Court to continue to hear the matter on what it would appear to be on the matters at least five of your Honours raised with me are incomplete facts which are able to be supplemented.  Whether they are sufficient or not is a question that remains to be seen.

But that is far preferable, given what has occurred in the case, the expense that has occurred and the issues, to what the alternative would be; would be for the case to have new facts and added facts and reissued when, really, all that is extant are these matters that your Honours have raised with me.  We say that is the appropriate way for the matter to proceed.  Also it gives us the opportunity, your Honour, of if need be presenting explanations, which have not been able to be agreed in the agreed special case or the supplementary special case to date, which we would have to consider.

KIEFEL CJ:   We should hear from the Solicitor‑General for the Commonwealth in relation to the request for an adjournment. 

MR DONAGHUE:   Your Honour, that application is opposed.  Your Honours will have noted, as is common in a special case of this kind, paragraph 1 commences with the statement:

This special case states the facts and identifies the documents considered by the parties to be necessary to enable the Full Court to decide those questions.

When the matter was referred, I mentioned to Justice Gordon that we might need to update the special case beforehand and her Honour pointed out the matter would be referred on the basis of the special case.  If we agreed further facts so be it.  We did that in the form of the supplementary special case which squarely dealt with the matter that is now in issue.

We wrote to the plaintiff on 8 November asking for these further interviews and no good explanation was provided as to why co‑operation was now forthcoming.  To say – when your Honours make what is, in our respectful submission, the obvious point that non‑co‑operation must bear on the application of Al‑Kateb to the facts of this case - to say now that is a course that justifies adjourning when the parties are assembled to argue the point we submit is not to grapple with the fact that the relevance of these facts has been apparent for months.

Perhaps, more importantly, the problem is much deeper than just whether or not the plaintiff goes and speaks Arabic to the Algerian and Moroccan embassies.  When one talks about the extent of the co‑operation that has occurred, the critical facts are those your Honour the Chief Justice identified that there is no basis to think that there are memory problems and that there is no basis to think there are mental health problems. 

So, the situation is that we have a plaintiff with neither of those explanations who has given completely different accounts over a long period of time and one of those accounts, in particular, I want to – I will not take your Honours through all of the facts – but there is one document I think I need to take your Honours to. 

If you could go, in the special case book, to page 266 – and this all goes to a factual case I would develop in more detail if it becomes necessary to do so.  But it is impossible for your Honours to infer or to exclude the prospect that it is within the plaintiff’s power to give information that would allow him to be removed to Algeria.  Your Honours have already noted the phone call where he said he was Algerian to the Moroccans.  Your Honours may not have picked up that while he denied making that call at the time and walked out of the Moroccan Embassy, six months later he admitted that he did make the call, although he disputed some of the details.

So, we have a plaintiff who has rung the embassy and on an account he subsequently admitted – said he was Algerian – and given some background facts.  But if your Honours then look at this fact in light of that, at 266 you will see that sometime after the embassy interviews in 2012 there was an interview with the departmental case officer – this is in 2014 – it is 24 September 2014.  If your Honours look at about point 4 on page 266, next to paragraph 1, there is an interview where the new case officer was getting to know him and he said he was ready to provide:

new information with the proviso that “I won’t tell you everything.  I’m not ready for it. . . I need (to keep) some secrets because I’m scared (about) what happened to me all my life”.  

Then he gave an account of he and his older brother being born in Algeria in a refugee camp and he gives some memories of that.  He says in the last bullet point on page 266 that he is in Skype contact with his older brother who lives in Algeria.  He initially gave the impression that his parents were living in Dakhla, which is in Western Sahara, but later said they lived:

somewhere in Algeria where they are “most safe”.

On the top of the next page, some facts about the parents in Dakhla:

in the southern coastline of the Moroccan‑controlled region of Western Sahara.  His father is still working and moves around –

in Algeria and Mauritania.  There is a suggestion in the next bullet point that:

His mother “loves (his wife) -

This is a woman he married in an Islamic ceremony in Australia, suggesting there was some contact between the family and the mother and then he said:

He does not know his parents’ names, or the names of his brothers -

and he was challenged on that, on the basis that it “beggars belief” and it was put to him that this was the kind of information he was withholding that he had intimated at the start of the interview that he was going to withhold.  He said at the bottom of that page, about point 9 on page 267, that he was giving them new information, as he had finally grown up and was no longer fearful of what may happen if he was returned to Norway.  Then he was told he should not get up his hopes about that.  Then at paragraph 4, the middle of 268, he acknowledged it would be hard to go to Norway:

He was adamant, however, that he would not countenance removal to his birth region of Algeria or Morocco or surrounding countries such as Mauritania.

He said he wanted to visit the family.  But then later in that paragraph:

his family members in Morocco and Algeria have no resources and he did not want to put them in danger by suddenly appearing . . . he had not seen his family for “about twenty years” . . . and his life is now tied to Australia.

In our submission that is just one, we say, very important fact within a realm; we have listed I think nine or 10 in the oral outline we gave your Honours, so I could take you through.  But that at least provides a strong foundation to think that there is information available to the plaintiff that is being withheld and that, if provided, might well have the consequence that he could be removed to Algeria.  I do not say it would definitely have that consequence, but it cannot be excluded to the level necessary to engage Al‑Kateb.

The kind of co‑operation, in our submission, that would need to be forthcoming, is not just going to the Algerian Embassy, but giving information that he must have as to the names of his parents, and further information of the very kind that is demonstrably lacking in the statement that I have just read. 

Now, yes, there have been many different statements given, many different stories; this is only one of them.  But this is a story that ties in with a lot of other facts that tie the plaintiff to Algeria, including protection visa facts about being born in Algeria, speaking fluent Algerian Berber, calling the embassies, matters of that kind.

So that if your Honours were to adjourn the matter on the basis of the embassy interviews, the likelihood is that, unless further information is forthcoming, we will be back having much the same argument that is raised on the special case as it currently stands before the Court; and that is the basis for my opposition.

BELL J:   I understood, perhaps wrongly, that the application was not only advanced on the basis of the willingness now to go the embassies of Morocco and Algeria and speak in Arabic, but also to co‑operate more fully with any ‑ ‑ ‑

MR DONAGHUE:   Hopefully that will happen, your Honour, but that is really ‑ ‑ ‑

GORDON J:   The submission was they would, as my notes are, co‑operate with any reasonable request. 

MR DONAGHUE:   Your Honours, if there is co‑operation of the kind that I have been talking about, then the factual basis for this application will change so completely that it will be a different case.  In my submission,

your Honours should dismiss this case – this special case and these sets of facts unless – if my friend seeks to press on, notwithstanding the impediment your Honours have identified, then your Honours will need to decide the case.  But the impediment is a substantial one. 

If there is co‑operation then your Honours might never be troubled with this matter again and if you are troubled with the matter again you will be troubled with it on the basis of a factual record that is quite different to that now before the Court. 

KIEFEL CJ:   Yes.  Thank you, Mr Solicitor.  Mr Merkel, as I understand your position, if the adjournment is not granted you wish to proceed with the matter to determine the first issue about inferences and then, if necessary, proceed to the other questions raised – to the questions raised in the special case.

MR MERKEL:   Yes, that is what we would do, although your Honour Justice Gordon did encapsulate what we did say, that the concern we would have is that if we did proceed the facts are incomplete and it is obviously in the interests of justice that this ‑ ‑ ‑

KIEFEL CJ:   No, that means it is your decision on instructions from your client.

MR MERKEL:   Yes.  Well, as I understand it ‑ ‑ ‑

KIEFEL CJ:   If the adjournment is refused then it is a question – the ball is in your court, as they say. 

MR MERKEL:   Yes.  If the adjournment is refused we would obviously proceed because one of our grounds is that the current statutory scheme is unconstitutional and we have standing to bring that claim.  It is only if there is a reading down of the statutory scheme that we get into having to determine and make these inferences to show that we fall within the reading‑down provisions ‑ ‑ ‑

KIEFEL CJ:   There is the preliminary issue about the inferences, though, which means that, depending on the view the Court takes, those questions may not be reached. 

MR MERKEL:   Well, we would say that is not so, your Honour, because there is an alternative basis which is that if the provisions are not read down, and if they have the capacity to operate in the way in which we have set out in our outline, then they are unconstitutional and the detention that is currently being engaged in is unlawful.  So the constitutional question will arise irrespective of the inferences, because the only basis on which he could be challenged for raising those constitutional questions, your Honour, are that he does not have standing, but he clearly has standing because he is in custody. 

KIEFEL CJ:   Yes, thank you, Mr Solicitor.

MR DONAGHUE:   Of course, your Honour, we seek our costs in the special ‑ ‑ ‑

KIEFEL CJ:   Thank you.  Yes, Mr Merkel, anything in reply?

MR MERKEL:   Yes, your Honours.  Could I just deal with the last matter first?  When you say it would be appropriate to approach the questions on the basis that your Honour Justice Keane put, namely, that if on the facts your Honours find that the inference does not arise then it is appropriate not to venture into the authorisation questions because it is inappropriate in this case to do so, we would say that is appropriate.  It would take another case to have to work out what the post Al‑Kateb regime was.  So we would, with respect, support that as a way of resolving the present case.

Can I briefly go over one or two points my learned friend said about the current statutory regime.  He referred to the 2005 amending Act.  Can I just give your Honours references which are inconsistent with what he had put. 

GAGELER J:   I do not want to overcomplicate things, Mr Merkel, but does the way you propose answering the questions, which is dependent upon one of those four factual bases being established, mean that you no longer put your alternative argument?

MR MERKEL:   Would your Honour excuse me just a moment?  Your Honour, the position we would put is that we would, if the Court is prepared to answer the questions just on the facts, that the facts have not reached the inferences that we had put on a reading down then we would not seek to take that constitutional question any further.  If the Court gets into the question of construing the sections then we would put the whole of our case, including the invalidity sections – the invalidity of the sections – if the sections are not read down but we would be content with Justice Keane’s approach to the first question, leaving the operation of the scheme for another day.

GAGELER J:   I want to be really clear about this.  If you do not establish (1), (2), (3) or (4) then the answers to questions (1) and (2) are adverse to your position.  Is that right?

MR MERKEL:   Your Honour, we would say that if we do not get answers to questions (1), (2), (3) and (4), the appropriate way to deal with question (1) is to say that because the facts of this case are not determinative of our rights that the question in (1) and (2) does not arise.  If the questions in (1) and (2) arise, then we put our constitutional validity argument, which was always a necessary side of the interpretation argument.  If it is said we have not put it we would ask for leave to put it because it was a necessary consequence of the interpretation argument to be in accordance with section 15A or 3A.

BELL J:   But that leave is only sought in the event that the factual premises, either (1), (2), (3) or (4), are established.  To the extent they are not, you do not press the constitutional challenge?

MR MERKEL:   Yes.  That is so, your Honour.

BELL J:   Yes.

MR MERKEL:   That is on the basis that Justice Keane approached to the answer to the first question, is to take it ‑ ‑ ‑

GORDON J:   That is that the foundation of the plaintiff’s challenge is either not established or not reached.

MR MERKEL:   Yes, your Honour, that we think it is appropriate for another day to get into the interpretation question if the facts are not reached.  Can I just briefly note, your Honours, that the approach my learned friend has taken to the 2005 amending Act not making substantive changes is quite inconsistent with the second reading speech in the explanatory memorandum.  I will just give your Honour references. 

The second reading speech is at tab 31 and at page 1747 at lines 15 to 20, and 1748 of the book of authorities at lines 25 to 30, and also at 1749, lines 20 to 23 make it clear that these amending Acts were meant to change the fundamental structure of mandatory detention into immigration detention which would include residential detention.

The same appears from the explanatory memorandum which is at tab 31 and can I draw your Honours attention to paragraphs 4 to 7 which explain the community detention, and also paragraph 17 which makes it clear that the purpose of the note is to clarify that section 189 is not an exhaustive statement of the powers relating to how a person is required to be detained, and also paragraphs 21 and 22.  So we say there is no basis for saying that these changes are only minor. 

In respect of his point that the 195A is no more than a repeat of section 417, we say that totally divorces the context of the 2005 amending Act which was to create fundamental changes to the migration law as a result of Al‑Kateb and to ensure flexibility into the system that Al‑Kateb did not have.  We say that there is nothing ironic whatsoever about this Court, as my learned friend would otherwise have it, finding that if the detention is unlawful, somehow that is inconsistent with the Minister’s executive power to exercise alleviating provision – alleviating detention in the public interest.  If it is unlawful, then this Court intervenes and should intervene.  If it is not the Court would not intervene. 

My learned friend relied upon Plaintiff M76 – M76 is a good contrast to what is before you – M76, at paragraph 147, refers to objective facts.  Here, the basis for saying there is a real prospect of sending the plaintiff to Algeria is not an objective fact, that is, it is the plaintiff’s previous inconsistent versions of his past and we say that it is important for this Court on analysing the facts to distinguish between mere possibilities, which are not enough, and what you can properly infer from the facts. 

Ultimately, the real question is, is the Court satisfied that the plaintiff is withholding information that is independently verifiable about his birth and his parents’ identity and we say that threshold is not reached based upon an objective analysis of the facts because there is that gap and there is no proper basis for the finding that my learned friend seeks.

NETTLE J:   You put the burden of proof on the Commonwealth.

MR MERKEL:   We say the Privy Council in Tan does put the burden of proof on the detaining authority to show it is lawful, but we say this ultimately is – and we do rely on that onus as stated by the Privy Council in Tan – but we also say that ultimately the facts have been presented before your Honours and they are bereft of any facts that come under the independently identifiable facts that show that the plaintiff is withholding the information of the kind that my learned friend says will be able to identify a country willing to take him because he is a citizen, or his parents are a citizen, of that country.

There is a limit to how much inference can be drawn on inconsistent stories and the credibility issues.  My learned friend took your Honours to certain versions which, if true, would suggest he had parents in Algeria.  Other versions which, if true, would say he does not.  We say that the whole credibility issue is why we are into independent verifiable facts. 

When you actually ask the question what are the independent, verifiable facts that will show he is concealing them there are not any and, therefore, we say there is no basis for the finding that he invites and we say

it is a necessary finding objectively to be made not based on suspicions of the Department but based on the entirety of the evidence before the Court.  They are the submissions that we would put in reply, if your Honours please.

KIEFEL CJ:   Thank you, Mr Merkel.  The Court will adjourn to consider the course that it will take.

AT 4.33 PM SHORT ADJOURNMENT

UPON RESUMING AT 4.41 PM:

KIEFEL CJ:   The Court is unanimously of the view that the special case raises no factual basis for the consideration of questions (1) and (2) of the special case.  The questions raised for the opinion of the Full Court are therefore answered as follows:

(1)On their proper construction, do ss 189 and 196 of the Act authorise the present detention of the plaintiff?

Answer:Does not arise.

(2)If so, are those provisions beyond the legislative power of the Commonwealth insofar as they apply to the plaintiff?

Answer:Does not arise.

(3)What relief, if any, should issue to the plaintiff?

Answer:None.

(4)Who should pay the costs of and incidental to this special case?

Answer:The plaintiff.

The Court will publish reasons at a later date.

The Court adjourns to 9.45 am tomorrow.

AT 4.42 PM THE MATTER WAS CONCLUDED