Plaintiff M47/2018 v Minister for Home Affairs & Anor

This matter came before the High Court of Australia concerning a special case stated for the opinion of the Full Court. The plaintiff, represented by Mr J.W.K. Burnside QC and Mr I. Chatterjee, sought to challenge the lawfulness of their ongoing detention. The defendants, the Minister for Home Affairs and the Commonwealth of Australia, were represented by Ms Z.C. Heger. The proceedings involved a discussion regarding proposed consent orders and the adequacy of the special case for referral to the Full Court.

The primary legal issues before the Court concerned the sufficiency of the factual basis within the special case to allow the Full Court to determine the lawfulness of the plaintiff's detention, particularly in light of established High Court authorities such as *Al-Kateb*. Specifically, the Court was required to consider whether the special case adequately addressed factual matters relating to the plaintiff's identity, the invalidity of a bridging visa application, the reasons for the suspension of an ITOA, and crucially, the prospects of the plaintiff's removal from Australia and the issue of statelessness. The Court also considered the potential overlap with another matter, S111a, which also sought to challenge *Al-Kateb*.

Her Honour raised several concerns regarding the clarity and completeness of the special case. These included inconsistencies in the presentation of factual matters, the absence of certain documents from the special case book, and a lack of detail regarding the reasons for the suspension of an ITOA. Most significantly, the Court questioned whether the facts presented in paragraphs 75 and 76 were sufficient to enable the Full Court to make findings on the reasonable likelihood of removal or to reach a conclusion comparable to that in *Al-Kateb*, especially given the absence of a lower court finding and the limited information about the steps being taken to identify countries for removal. The Court noted that the plaintiff's medical and mental condition had not been adequately detailed.

Following discussion, the Court proposed adjourning the directions hearing to allow the parties to revisit and amend the special case to address the identified deficiencies. The parties agreed to this course, with an amended special case to be filed by 14 November 2018, and the directions hearing to proceed on 21 November 2018. This approach was intended to ensure the matter was presented in a form suitable for the Full Court to consider the substantive legal arguments, particularly concerning the plaintiff's detention and the application of *Al-Kateb*.