Plaintiff M79 of 2012 v Minister for Immigration and Citizenship

[2012] HCATrans 234

[2012] HCATrans 234

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne       No M79 of 2012

B e t w e e n -

PLAINTIFF M79 OF 2012

Plaintiff

and

MINISTER FOR IMMIGRATION AND CITIZENSHIP

Defendant

Application for order to show cause

HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON THURSDAY, 27 SEPTEMBER 2012, AT 2.19 PM

Copyright in the High Court of Australia

MR M.R. PEARCE, SC:   Your Honour, I appear with MS L.G. DE FERRARI for the plaintiff in that matter.  (instructed by Baker & McKenzie Solicitors)

MR C.J. HORAN:   If the Court pleases, I appear for the defendant.  (instructed by Sparke Helmore Lawyers)

HIS HONOUR:   Yes, Mr Pearce.

MR PEARCE:   Your Honour, there are three things today.  First, our application for an extension of time ‑ ‑ ‑

HIS HONOUR:   Which I understood not to be opposed, but is that right, Mr Horan?

MR HORAN:   That is correct, your Honour.

HIS HONOUR:   Yes.

MR PEARCE:   Can I proceed on the assumption that that is granted, your Honour?

HIS HONOUR:   Yes.

MR PEARCE:   The second thing then is our application to amend.

HIS HONOUR:   Again, I think, not opposed.  Is that right, Mr Horan?

MR HORAN:   That is correct.

HIS HONOUR:   You have that leave.

MR PEARCE:   Thank you, your Honour.  That leaves us then with the future disposition of the matter, and there, there is a disagreement focusing on the status of the proceeding in the Federal Magistrates Court below.  If I can just address your Honour shortly on that, the position of the plaintiff is this.  He was an offshore entry person.  He was an unlawful non-citizen held in immigration detention who went through the IMR process on two occasions both before and after the decision of this Court in M61.  On each occasion, a report or recommendation was made that he was a person to whom Australia did not owe protection obligations.  He has then been released out of detention by the exercise of power by the Minister under 195A(2) through the grant, we are not sure simultaneously or consecutively, of not one visa but two visas, a bridging visa and a temporary safe haven visa.

The consequence of his release under 195A is to lift the bar under 46A(1) that prevents him from making, or prevented him, rather, from making an application for a visa.  It seems quite clear, however, that the Minister has purported to use the power, if there is one, to grant a temporary safe haven visa under, I think it is section 37A, to impose another bar in substitution for the 46A(1) bar which disappeared.

HIS HONOUR:   What is the new bar that ‑ ‑ ‑

MR PEARCE:   Section 91K.

HIS HONOUR:   Section 91K?

MR PEARCE:   Capital K.  Now, with that bar, there is the like power under 91L to remove the bar comparable to the power under 46A(2), but the question that we seek to agitate in this Court, your Honour, is whether the grant of the temporary safe haven visa was valid.  If it was not, there is no bar under 91K and he is able then to make an application for a protection visa, and has in fact now lodged such an application.

There was a proceeding in the Federal Magistrates Court which was commenced, and almost concluded, before the purported grant of these two visas on 12 April.  When the two visas were granted, the question then became whether the Federal Magistrates Court had any further jurisdiction in the matter.  The issue there, your Honour, is that the Federal Magistrates Court was inquiring into the independent merits review process, and that is a process which, as this Court said in M61, is pursuant to the Minister’s power under 46A(2) and 195A(2).  That power is now spent in relation to the plaintiff.  The consequence of that would appear to be that he is no longer subject to that process, but that process is the subject matter of the proceeding in the Federal Magistrates Court ‑ ‑ ‑

HIS HONOUR:   But do the subsequent events, namely the grants that occurred on 12 April, render the proceedings in the Federal Magistrates Court moot or futile?

MR PEARCE:   We think that is the better view, your Honour.  We are not 100 per cent sure of it, which is why we are reluctant to withdraw the proceeding in the Federal Magistrates Court, but we think that is the better view.  If you think it through, there are three decisions that the Magistrate can make.  He can say he has no jurisdiction, and in that event, our proceeding in this Court proceeds.  He can say there is jurisdiction, but ‑ ‑ ‑

HIS HONOUR:   But the authority to decide if the Federal Magistrates Court was validly invoked at the time it was invoked, was it not?

MR PEARCE:   Yes.

HIS HONOUR:   And the question becomes what consequence follows from the subsequent event, or events.

MR PEARCE:   Quite so.  I have tried to explain that, your Honour, in saying that the subject matter of the proceeding has now disappeared.  Whether that is a question of a lack of jurisdiction or whether it is a question about the utility of any relief that might be granted, one way or another, in my submission, we get to the position that there is no point in pursuing the Federal Magistrates Court proceeding, and that this matter in this Court ought to proceed.  It is then put to us by the defendant, “Well, withdraw in the Federal Magistrates Court”, but there is of course a risk that we are going to be wrong about that, and ‑ ‑ ‑

HIS HONOUR:   No, all counsel are paid to wear belt braces and a piece of string around the trousers as well.  I know that, but have we not got to the point where you have to effectively choose?  I am not saying choose now on your feet, but choices of this kind are not to be compelled by a judge saying “choose now”, but there is at the least a question presented by the existence of two concurrent proceedings, or it may be a question presented, is there not?

MR PEARCE:   There is, your Honour, and with respect, your Honour’s choice of the expression “concurrent” is apt, because there is no conflict between the proceedings.  There cannot be conflicting decisions given by this Court ‑ ‑ ‑

HIS HONOUR:   Well, two different decisions are put in issue.

MR PEARCE:   Yes, but there will not be a conflict between those decisions because nothing this Court decides will be in conflict with what the Magistrate can decide.

HIS HONOUR:   Because the subject matter of each proceeding differs?

MR PEARCE:   Correct.

HIS HONOUR:   Yes, I understand that.  Assume that to be right – and I have got to hear Mr Horan on all of this – but assume that an available point of view is that the proceedings have different subject matters, what consequence then follows in respect of this proceeding in this Court?

MR PEARCE:   There are really three courses open.  The course pressed by the defendant, which is to say, we stay this proceeding and we await the outcome of the Federal Magistrates Court.  The alternative is we do nothing because, in our view, nothing the Federal Magistrate decides will conflict with anything that is decided here.  Sorry, there are four.  There is a third one which is that we could seek a stay of the proceeding in the Federal Magistrates Court to remove altogether the potential for that risk, and the fourth possibility which is probably the least attractive is actually to remove the Federal Magistrates Court proceeding into this Court, or to apply to do so under section 40(2).

HIS HONOUR:   Or simply let the proceedings go on according to their own separate lives on the footing that there are two different administrative decisions which are challenged, and the fact that you have the same plaintiff and the same defendant is an interesting observation, but not one that takes you any particular legal destination.

MR PEARCE:   That, your Honour, is precisely the course that we propose to adopt, we recommend.

HIS HONOUR:   Now, can I just pursue that a bit?  If this proceeding were to remain not only on foot, but to be prosecuted in the ordinary way from today on, what do you see as the means by which the proceedings would be prosecuted, because that raises the question whether to remit them in any event on the footing that there is going to be some factual dispute.

MR PEARCE:   We would suggest there ought to be a case stated.  We think that the facts in this Court will be very confined, and we do not see certainly at the moment any prospect for any dispute with any facts that are alleged ‑ ‑ ‑

HIS HONOUR:   Well, is the central ground you want to agitate here improper purpose?

MR PEARCE:   Lack of power is the first, and the secondary is improper purpose.

HIS HONOUR:   Does the allegation of improper purpose – can I understand what your side of the record asserts to be the impropriety?

MR PEARCE:   We say the purpose of the grant of the temporary safe haven visa was to apply the bar in 91K in substitution for the bar that existed and disappeared under 46A(2), and we say that is not a proper purpose for the issue of the temporary safe haven visa.  The facts we will rely on ‑ ‑ ‑

HIS HONOUR:   Well, another way of perhaps identifying that is that the temporary safe haven visa was not issued for the purposes of providing temporary safe haven.

MR PEARCE:   Precisely, your Honour.  That overlaps then with the question of power.  The terms of the statute, I think 37A, say it is a visa to travel to, enter and remain in Australia.

HIS HONOUR:   I understand you say you have got to be able to do all of those, and that therefore if you are in, you cannot have that.  I understand that argument.  It may be good, it may be bad.  But what, if anything, can one make of the name of the visa and the note to section 37A(1):

A temporary safe haven visa is granted to a person to give the person temporary safe haven in Australia.

Simply that I am struck by the fact that on the face of the visa, there was a need for safety and provision of a haven for seven days.

MR PEARCE:   Precisely, your Honour.  The plaintiff was already in Australia.  He did not need safe haven, temporary or otherwise.  The legislative history of this provision, your Honour – the class of visa came in for the Kosovars back in the 1990s, but it was sought to locate temporarily in Australia while the Balkan troubles played out.

HIS HONOUR:   Conflicts were ‑ ‑ ‑

MR PEARCE:   Yes.  We propose to go into the legislative history behind that to show that this is not a visa of the kind that was not intended for the sort of visa that has been granted in this case, particularly having regard to the fact that concurrently a bridging visa was granted, and that is all that the Minister needed to do to release the plaintiff from detention.

HIS HONOUR:   The allegation of improper purpose is often connected with the notion of bad faith, and notions of bad faith, though capable of various articulation, do suggest personal wrongdoing – at least some meanings of the expression suggest personal wrongdoing by a decision-maker.  Are allegations of that kind on the table in this case, or are you not able yet to say?

MR PEARCE:   No, your Honour, and I have to make this clear.  The facts we will rely on will be largely matters of inference, inferences to be drawn from the outward expressions and the outward conduct.  It is most unlikely we will be in a position to look behind the actual decision-making, unless the Department or the Minister wants to open itself up to that scrutiny, which we are not anticipating. 

But it is a case a bit like the famous Northern Land Council Case, where the Northern Territory government purported to declare the entire Northern Territory to be urban land to avoid the native title legislation, where you say on the face of it there is no other explanation for the grant of this visa.  It has been said, both in court and in correspondence, that the temporary safe haven visa was granted for “administrative reasons”.  That is the reason given by the Minister.  But what those reasons are is completely unelaborated, and the likelihood is, as I say, that we will be relying on inferences from the outward acts and conduct, and absent a proper explanation, we will be inviting the Court to draw the inference that the purpose was not proper.

HIS HONOUR:   Well, if the action were to continue along an interlocutory path, there will come a point at which I or some other Justice will require of your side a firm and clear statement about whether anything beyond inference from established or agreed facts is alleged or sought.  I am not suggesting that I should ask that of you now.  I do not.  But I do say that if the case goes forward in the Court with a view to either stated case, special case or reference of questions, I would need a clear degree of certainty that if it got into a Full Court, we would not have a circumstance where it was suggested that the decision-maker had acted knowingly contrary to duty or some other equally large allegation.  I simply mention that rather than invite any comment about it.

MR PEARCE:   We of course will have to wait and see what, if any, evidence the Minister puts on.

HIS HONOUR:   Yes.  So what do you say I should order today?

MR PEARCE:   Today, we should simply adjourn the summons to a date – we have suggested 22 October, I think.  We have got a form of order which I can hand to your Honour, so that the parties can negotiate a special case.  That is what we would propose.

HIS HONOUR:   Special cases are also fashionable because counsel think that by having a case from which inferences can be drawn, they gain some advantage.  Yes.

MR PEARCE:   That is what we propose, your Honour.

HIS HONOUR:   Yes.  Perhaps if I hear from Mr Horan at this stage.
Well, Mr Horan, what do you say I should do?

MR HORAN:   We say the proceeding should be stood down to allow the Federal Magistrates Court to determine the issues that have been raised in that proceeding.

HIS HONOUR:   And what exactly is the issue, or are the issues that are to be determined in that proceeding?

MR HORAN:   They do involve different decisions, and to that extent, different subject matters, but there is an overlap, especially insofar as the effect of the decision at issue in these proceedings came up in relation to the arguments about the jurisdiction of the Federal Magistrates Court in the related proceedings.  We do not suggest that the plaintiff should withdraw or discontinue the Federal Magistrates Court proceedings, and in fact, the Minister’s position in those proceedings was that that court does have jurisdiction, and that the relief sought does have utility.

HIS HONOUR:   Why?

MR HORAN:   Because the grant of the visas enabled the plaintiff to be released from detention while preserving the ongoing process of assessment of his protection claim pursuant to the IMR process.

HIS HONOUR:   Why?  He had a visa to enter and remain in Australia, at least for seven days.  True it is he may have been given a bridging visa at the same time, but he had permission to enter and remain, did he not?

MR HORAN:   Once that temporary safe haven visa ceased to have effect, he was a lawful non-citizen on a bridging visa.

HIS HONOUR:   Yes.

MR HORAN:   His ability to lodge a further application for a visa, substantive or a bridging visa, depended upon a decision to lift the statutory bar under section 91L rather than section 46A.

HIS HONOUR:   Be it so, how does a decision, one way or the other, in the Federal Magistrates Court, or a decision in the Federal Magistrates Court that the proceeding is now moot – there is no utility – how do any of those decisions bear upon this proceeding in this Court?

MR HORAN:   The best example of that scenario would be if the Federal Magistrates Court upholds its jurisdiction, and upholds the submission that the relief sought still has utility, and proceeds to uphold the plaintiff’s challenge to the lawfulness of the independent merit reviewer’s recommendation, so that in those circumstances, the court would make a declaration that the IMR recommendation was not made in accordance with law ‑ ‑ ‑

HIS HONOUR:   It was flawed, yes.

MR HORAN:    ‑ ‑ ‑and that would lead to a further reassessment of the plaintiff’s claims for protection.

HIS HONOUR:   Under the IMR?

MR HORAN:   It has now changed in terminology.  I think it is the Independent Protection Assessment Office, but under a non-statutory process or ultimately pursuant to the statutory application under the Act, if a decision is made following the Federal Magistrates Court decision to lift the statutory bar to allow the plaintiff to make an application.  It does not strictly render the issues sought to be raised in this proceeding completely moot, but it does bear upon the ongoing utility of these proceedings if the plaintiff achieves the ultimate outcome of a proper reassessment of his claims, and potentially the ability to make a valid protection visa application, in which case most of the issues sought to be raised in these proceedings will become far less significant from a practical perspective.

HIS HONOUR:   But does the Minister therefore accept, and bear in mind exactly what I am asking you, does the Minister accept that success of the plaintiff in the Federal Magistrates Court both could and would be expected to lead to a fresh assessment of whether he is a refugee?

MR HORAN:   Yes.  It certainly will need to ‑ ‑ ‑

HIS HONOUR:   And under what power would that be being done, statutory, non-statutory, or what?

MR HORAN:   It will be under the current non-statutory process as for the purposes of enabling the Minister to consider the exercise of his discretion under section 91L.  To some extent, that goes to the heart of the issues raised by this proceeding as to the purpose and effect of the decision in question ‑ ‑ ‑

HIS HONOUR:   But – forgive me, I need to slow down a little because I am not absorbing it as quickly as I should.  The utility would be that it would lead to the Minister considering the application of 91L.

MR HORAN:   Yes.

HIS HONOUR:   And the plaintiff in this Court says, “No, that is not right, because 91L is never engaged”.

MR HORAN:   Yes.

HIS HONOUR:   Does that not mean that we have got a live action in this Court?

MR HORAN:   Yes, and for that reason, I accept that it is not something which would deprive the issues in this Court of any live controversy, but it would affect their practical significance in such a way that it is more efficient for those issues to be addressed in the light of the Federal Magistrates Court’s decision.  The submissions that the plaintiff made on jurisdiction assume the validity of the decision under section 195A.  I do not say that to suggest that there is any preclusion from bringing the challenge ‑ ‑ ‑

HIS HONOUR:   But that was their argument then.  It is not their argument now.

MR HORAN:   It still remains their argument before the Federal Magistrates Court, so one has two proceedings in separate courts in which different positions are being adopted, and it would in my submission be more appropriate for the matters to be dealt with sequentially.  We do not require the plaintiff to choose between this challenge and the challenge in the Federal Magistrates Court, but simply that this challenge could be stood down for a period to allow the Federal Magistrates Court proceeding to be determined, following which the matter can be relisted for directions, and it can then be assessed in that light as to whether or not the plaintiff wants to proceed.

HIS HONOUR:   The difficulty with that is that assume it goes against the plaintiff in the Federal Magistrates Court.  There will be appeals.  Assume it goes against the Minister in the Federal Magistrates Court.  There may be appeals.  If we have a live controversy in this Court, let us get on with it, Mr Horan, otherwise I fear we are going to end up in such a procedural tangle that we will lose sight of the controversy in a tangle of procedural conflict.

MR HORAN:   Yes, I accept that, your Honour.  The suggestion was not to tie up the proceeding, but perhaps to defer it in the hope that it would ultimately go away.

HIS HONOUR:   That is an appeal to judicial indolence of a kind that I should at once resist, Mr Horan.

MR HORAN:   If the Court pleases.

HIS HONOUR:   It says nothing good about me that you think it worthwhile making the plea, but there we are.

MR HORAN:   The question then becomes one of on which there is substantial agreement.  The Minister’s position is that this proceeding could be remitted because it does not fall within the exclusion or carve-out ‑ ‑ ‑

HIS HONOUR:   I understand that.  But do you think – is it realistic to give both sides some time to think about whether they can agree upon a platform of facts that would tend to the issue?

MR HORAN:   Yes, your Honour.  My instructions are that we would seek to have it referred to the Full Court on a special case, subject perhaps to the caveat that if it does, in the course of attempting to settle this special case, become evident that there are factual issues that cannot be resolved, then that can be addressed.

HIS HONOUR:   Now, is this a one-off case, or are there other cases like the plaintiff’s in the system?

MR HORAN:   There are many such cases.  The number of persons released pursuant to decisions analogous to this one exceeds 250.

HIS HONOUR:   I see.  Is it a matter which we ought to be looking to bring on quickly?  I understand the particular circumstances of this case, because there is already this Federal Magistrates Court proceeding which is perhaps a difficulty, perhaps it is not.  Is it one that we ought to be trying to get on, if possible, before the end of the year, or early next year, or is there no great pressing urgency about it?

MR HORAN:   The first point to note is that all of the affected plaintiffs are, by reason of the decisions made, no longer in detention.  That does remove some urgency.

HIS HONOUR:   Yes.

MR HORAN:   The significance of the issues and the broader impact does tend in the other direction, and I would submit that it should proceed with as much expedition as possible, but it is likely to be potentially a slightly more complicated exercise – the special case may encompass more complicated facts than, for example, the other proceeding listed this morning, and so it may take a little longer to bring the matter to a point where it can be heard.

HIS HONOUR:   Yes, okay, and there is the further consideration swirling around under all this as to whether it is a case which, if it got into a Full Court, it would be suitable for all available Justices to sit, or whether it would be better to be dealt with by a Bench of five because, of course, we have a second change in composition occurring at the end of February, start of March, so there are those issues swirling around under it all as well.  How long do you think I should give the parties to think about this?  It is suggested come back ‑ ‑ ‑

MR HORAN:   I think in approximately three weeks, or perhaps three and a half.  No, it is approximately four weeks.  Yes, it is suggested that the special case be agreed within approximately four weeks.

HIS HONOUR:   But if we were to come back, say, on 30 October or some date like that, would that give the parties (a) time, and (b) bring it on in enough time to keep the wheels of industry turning?

MR HORAN:   Yes, I was going to suggest somewhere around six weeks, which is consistent – broadly consistent with the date your Honour is suggesting.  It depends whether or not – when the proposed agreed special case needs to be filed, if that is to be filed in advance of the adjourned date to give the parties time to ‑ ‑ ‑

HIS HONOUR:   What I would raise for the consideration of counsel is whether we bring it back on Tuesday, 30 October, or some day like that, with a view to directing the parties to put on any agreed document by, say, 26 or 29 October which would mean that I would leave it, I think, unless I am told otherwise, I would leave it to the good sense of the parties to work out when drafts have got to be exchanged between them.  Do I really need to be telling parties of this kind represented as they are when they have got to do all this?

MR HORAN:   No, your Honour, we can arrange a suitable timetable amongst ourselves.

HIS HONOUR:   If you get into trouble simply exercise validity to apply and I will set a timetable but I would hope that it would not come to that.

MR HORAN:   No, I am sure it will not, your Honour.  So perhaps if by 29 October – it can be 12 o’clock perhaps if that assists the Court in being able to look at the draft document before the directions.

HIS HONOUR:   Yes.  Then, subject to anything that either side may say about the particular timing, if I were to make orders in the form of Mr Pearce’s draft paragraphs 1, 2 and 3, which are the extension filing of the amendment, I would not I think be minded to make any direction about filing the agreed special case.  That presupposes agreement is reached.  But if I simply stood it over to Tuesday 30th, if that was convenient to counsel,

at 9.30 and make the costs costs in the proceeding, reserving liberty to apply on, what shall we say, 24 hours’ notice in writing to opposite parties, would that suffice?

MR HORAN:   Yes, your Honour.

HIS HONOUR:   If I were to say that if you were to get to an agreement, and I could see it, by 12 noon on the Monday 29th, that is obviously going to be of great advantage too.

MR HORAN:   Yes.  Well, I think in any event there will be something that can be given to the Court, I would hope.  Even if it is not finally agreed, at least it will indicate what the areas of difference are and what the areas of agreement are.  I do not dissent from my learned friend Mr Pearce’s observation that most of the facts will be objective facts and documents and so it should not be too difficult to agree to those, subject to relevance.

HIS HONOUR:   And the allegation against your side of the record is that it is made for a particular purpose.

MR HORAN:   Yes.  To some extent ‑ ‑ ‑

HIS HONOUR:   No, no.  There will be perhaps a choice, perhaps not a choice for your side to make.  I expect no comment about this.  Whether you simply say no, that was not the purpose, or you say, I will tell you what the purpose was.  Those are matters for counsel and those who instruct them to sort out, not for me.

MR HORAN:   I will take that on notice, your Honour.  So, subject to that, we do not have any further submissions on the form of the orders.

HIS HONOUR:   Very well.  Are you content with that timetable, Mr Pearce?

MR PEARCE:   I am, your Honour, and I am content with the orders your Honour has proposed.  Could I just make one observation about expedition?

HIS HONOUR:   Yes.

MR PEARCE:   There is nothing in the personal circumstances of this plaintiff that calls for expedition.  That is in part because we understand that the effect of launching this proceeding in this Court will give him the ability to have his bridging visa either extended or a fresh one granted to him.  That will not apply to the other 200-plus out there and their bridging visas

will expire after six months we expect.  We do not know the details but there is that issue there that ‑ ‑ ‑

HIS HONOUR:   But if we have an issue in the system affecting as many people as that, if it is one that should be determined in this Court, it is better it is determined sooner rather than later.

MR PEARCE:   Quite so.

HIS HONOUR:   Simple as that.

MR PEARCE:   Thank you.  If your Honour pleases.

HIS HONOUR:   There will be orders then in the terms of paragraphs 1, 2 and 3 of the draft order submitted on behalf of the plaintiff.  There will be further orders that the plaintiff’s summons of 22 August 2012 be adjourned until Tuesday, 30 October 2012 at 9.30 in Melbourne or such other time as may be fixed.  The costs of today are costs in the proceeding.  Either party has liberty to apply on not less than 24 hours’ notice in writing to opposite parties.

MR PEARCE:   If your Honour pleases.

AT 2.56 PM THE MATTER WAS CONCLUDED