Plaintiff S113/2015 v Commonwealth of Australia & Ors; Plaintiff S114/2015 v Commonwealth of Australia & Ors; Plaintiff S139/2015 v Commonwealth of Australia & Ors

[2015] HCATrans 282

[2015] HCATrans 282

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney   No S113 of 2015

B e t w e e n -

PLAINTIFF S113/2015

Plaintiff

and

COMMONWEALTH OF AUSTRALIA

First Defendant

MINISTER ADMINISTERING THE MIGRATION ACT 1958

Second Defendant

SHARON EDGERTON, DIRECTOR, NSW AND ACT COMMUNITY CASE RESOLUTION, DEPARTMENT OF IMMIGRATION AND BORDER PROTECTION

Third Defendant

Office of the Registry
  Sydney   No S114 of 2015

B e t w e e n -

PLAINTIFF S114/2015

Plaintiff

and

COMMONWEALTH OF AUSTRALIA

First Defendant

MINISTER ADMINISTERING THE MIGRATION ACT 1958

Second Defendant

SHARON EDGERTON, DIRECTOR, NSW AND ACT COMMUNITY CASE RESOLUTION, DEPARTMENT OF IMMIGRATION AND BORDER PROTECTION

Third Defendant

Office of the Registry
  Sydney   No S139 of 2015

B e t w e e n -

PLAINTIFF S139/2015

Plaintiff

and

COMMONWEALTH OF AUSTRALIA

First Defendant

MINISTER ADMINISTERING THE MIGRATION ACT 1958

Second Defendant

SHARON EDGERTON, DIRECTOR, NSW AND ACT COMMUNITY CASE RESOLUTION, DEPARTMENT OF IMMIGRATION AND BORDER PROTECTION

Third Defendant

Directions hearings

GAGELER J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON THURSDAY, 29 OCTOBER 2015, AT 9.28 AM

Copyright in the High Court of Australia

____________________

MR S.E.J. PRINCE:   If the Court pleases, your Honour, I appear with my learned friend, MR P.W. BODISCO, in each matter, for the plaintiffs.  (instructed by Michaela Byers, Solicitor)

MR S.P. DONAGHUE, QC:   If the Court pleases, I appear with MS J.E. DAVIDSON for the defendant.  (instructed by Australian Government Solicitor)

HIS HONOUR:   Mr Prince.  There is a motion for summary dismissal in each of these three matters.

MR PRINCE:   Yes.

HIS HONOUR:   I made directions for the filing of written submissions – or which facilitated the filing of written submissions on both sides.  I have received submissions from the defendants, but I have not received any submissions from the plaintiff.  Are you proposing to make a substantive argument this morning?

MR PRINCE:   I was proposing to simply respond to what the defendants had put in a very short compass because it is a very simple point, in my submission.

HIS HONOUR:   Yes.

MR PRINCE: That is, section 75(i) of the Constitution must have work to do which is beyond the scope of 75(ii) of the Constitution. On their analysis 75(i) would be otiose because any matter arising under a treaty would only be justiciable in circumstances where it had been enacted in Australian law, domestic law, by statute and would therefore arise under 75(ii). So, in my submission, that argument which is really the centrepiece of their strikeout application as a matter of jurisdiction cannot be maintained.

In terms of the utility of the declarations which have been sought, directed as they are to establishing or exposing or identifying that removal prior to exhaustion of the Committee’s processes would involve a breach of Article 22 of the Convention against Torture and really subvert the processes of the United Nations Committee.

The argument is, well, we can refoule people anyway because of 197C and, therefore, nothing can arise under domestic law to which the declaration would be relevant.  In my submission, that is not so because 197C is directed to the ultimate act of refoulement.  It is only directed to that in limited terms.  It does not purport to deal with other obligations arising under the Treaty, including, for example, good faith compliance with what are, in effect, dispute resolution provisions in Article 22 of the Convention and the point of the case is, and always has been, that the removal would interfere with or subvert those dispute resolution processes under Article 22. 

The complaint is not about the ultimate non‑refoulement.  Section 197C does not provide a licence at large to the Commonwealth to refoule people.  What it does is to say that that particular factor is not relevant to the meaning of reasonable practicability under 198.  However, there are other provisions of the Act to which the declaration could be relevant, for example, sections 417 and 48B and 195A, as has been explained elsewhere, facilitate the ability of the Commonwealth to give effect to Australia’s international obligations, although it has no obligation to do so. 

If my client is removed from Australia prior to the finalisation of the Committee’s report, he will forever lose the opportunity to rely on the outcome of that Committee’s report in seeking the exercise of the powers under 195A, 417 or 48B.  So there is practical utility in the declarations that are being sought and the case would not be struck out on that basis.

As to the question of remitter to the Federal Circuit Court, as your Honour will apprehend, this case involves a fundamental question of the nature of the power under 75(i) of the Constitution, its interrelationship with 75(ii) and the relevance of Australia’s treaty obligations to the jurisdiction of this Court in a capacity for declarations. Your Honour, the proposition that I am putting about the effect of 75(i) is novel but it is not unheard of.

HIS HONOUR:   In what circles is it not unheard of?

MR PRINCE:   Well, I was not going to trouble your Honour with it, but I have a copy of an article by Oliver Jones which is “A Belated reply to an Article by Mr Leeming”, as his Honour then was, on federal treaty jurisdiction.

HIS HONOUR:   Yes.

MR PRINCE:   In particular, if your Honour goes to page 104 – although it is in the context of 38(a) again, which is another good reason why this should not be remitted to the Federal Circuit Court, the author notes that unincorporated treaties – and on their argument this is an unincorporated treaty, so we are accommodating that argument:

It is submitted that, as a result of s 75(i), the High Court has jurisdiction to make declarations on whether, in the particular circumstances of an individual or entity, the Commonwealth has breached obligations under an unincorporated treaty regarding the rights of persons within Australian territory (“the proposal”).

Then there is - in my submission, a quite compelling argument as to why that proposal should be adopted.

HIS HONOUR:   What is meant by “rights of persons”?

MR PRINCE:   Regarding the rights of persons.

HIS HONOUR:   What does that mean?

MR PRINCE:   I think that is the tie‑in or it would have to be the tie‑in to matter.

HIS HONOUR:   Yes, requiring what?

MR PRINCE:   Requiring something more than a merely advisory opinion or ethereal question about whether there had been a breach of the Convention.  It does not to be tied back somehow into relevance as to the application of Australian law.

HIS HONOUR:   Yes.

MR PRINCE:   In my submission, it is here because it would have relevance to the capacity of my client to access provisions under 195A, 417 and 48B of the Migration Act and on my clients’ construction it would have relevance to the content of reasonable practicability under 198.  So it would not be an isolated, ethereal, academic question about whether there had been a breach of a treaty.  It would have direct relevance.

HIS HONOUR:   All right.

MR PRINCE:   I accept I have to overcome ‑ ‑ ‑

HIS HONOUR:   Is that the high point of the argument?

MR PRINCE:   Yes.  I accept I have to overcome Walker v Baird. Again, another reason why it should be here rather than remitted to the Federal Circuit Court, but in my submission one comes back to the central point which I raised at the beginning which is, on their construction, 75(i) has no work to do and one would not read a term conferring jurisdiction of this Court in section 75 of the Constitution in that way. If the Court pleases.

HIS HONOUR:   Very well.  I do not need to hear from you, Mr Donaghue.

There are before me three proceedings, each commenced by writ of summons and statement of claim. In each, the first defendant is the Minister for Immigration and Border Protection, and the second defendant is a named officer of the Department of Immigration and Border Protection. In each proceeding, the defendants seek by summons an order pursuant to rule 27.09.4(a) of the High Court Rules 2004 (Cth) that the proceeding be dismissed on the basis that the proceeding does not disclose a cause of action.

The defendants’ summonses were originally listed for hearing before me on 20 August 2015.  By consent, on 19 August 2015, I adjourned the hearing to a date to be fixed, and ordered, amongst other things, that each plaintiff file and serve what were described in the consent orders as a “proposed amended summons [and] statement of claim”.

Each plaintiff subsequently filed, on 7 September 2015, a document styled an amended writ of summons and an amended statement of claim which adds the Commonwealth of Australia as the first defendant, and redesignates the Minister and the departmental officer as the second and third defendants.  The Minister and the departmental officer argue that those documents were filed without leave, and that leave to amend each writ of summons and statement of claim should be refused. 

Nothing turns on that procedural wrinkle.  In considering the application for the proceedings to be dismissed on the basis that the proceedings disclose no cause of action, it is necessary to take the plaintiff’s case in each proceeding at its highest.  For that purpose, I propose to have regard to the documents styled as amended writs of summons and amended statements of claim.  If I were satisfied that they disclosed a cause of action cognisable under the law applicable to proceedings in the original jurisdiction of the High Court, leave to amend would follow. 

Something should be said of the background circumstances of each plaintiff as revealed by those documents.

In Proceeding No S113/2015, the plaintiff is a citizen of Sri Lanka who arrived in Australia on 28 June 2012, who does not presently hold a visa and who is detained under section 189 of the Migration Act 1958 (Cth). The plaintiff made a valid application for a protection visa on or about 15 November 2012. On 18 February 2013, a delegate of the Minister refused that application. The delegate’s decision was affirmed by the Refugee Review Tribunal on or about 7 June 2013. On 17 December 2013, the Federal Circuit Court of Australia dismissed the plaintiff’s application for judicial review of the Tribunal’s decision. On 26 March 2014, the Minister refused to exercise his power under section 417 of the Act to substitute, for the decision of the Tribunal, a decision which was more favourable to the plaintiff.

In Proceeding No S114/2015, the plaintiff is a citizen of Sri Lanka who arrived in Australia on 11 April 2012, who does not presently hold a visa and who is detained pursuant to section 189 of the Act.  The plaintiff made a valid application for a protection visa on 30 June 2012.  On 16 August 2012, a delegate of the Minister refused that application.  The delegate’s decision was affirmed by the Refugee Review Tribunal on or about 2 May 2013.  On 22 November 2013, the Federal Circuit Court of Australia dismissed the plaintiff’s application for judicial review of the Tribunal’s decision.

In the third proceeding, Proceeding No S139/2015, the plaintiff is a citizen of Pakistan who arrived in Australia on 15 December 2011 and who currently holds a bridging visa.  The plaintiff made a valid application for a protection visa on or about 5 February 2012.  On 15 May 2012, a delegate of the Minister refused that application.  The Refugee Review Tribunal affirmed the delegate’s decision on 13 March 2013.  On 18 December 2013, the Minister refused to exercise his power under section 417 of the Act to substitute, for the decision of the Tribunal, a decision which was more favourable to the plaintiff.  On 12 March 2015, the Federal Circuit Court of Australia refused the plaintiff’s application for an extension of time to seek judicial review pursuant to section 477 of the Act.

What is alleged in each proceeding to trigger each plaintiff’s putative cause of action are events which occurred after the events I have just described in respect of each plaintiff.  The plaintiff, or a representative of the plaintiff, submitted a communication to the United Nations Committee Against Torture seeking consideration under Article 22 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.  Following receipt of each of the communications, the Committee requested that Australia refrain from returning each plaintiff to their country of citizenship whilst the communications were under consideration.  This request has been referred to in the submissions of the parties as the Committee’s “interim measures” request.

In the writ of summons and statement of claim as originally filed in each proceeding, each plaintiff claimed substantially similar declarations.  The claims, as expressed by the plaintiffs in Proceeding No S113/2015 and Proceeding No S114/2015, were for: 

1.“A declaration directing the [Minister and the departmental officer] to act in accordance with the obligations of Australia, being a signatory to the Convention . . . and [to comply with] Article 22 of the . . . Convention”; and

2.“A declaration that the decision of the [departmental officer] to detain the plaintiff . . . for the purpose of removal from Australia was an abrogation of Australia’s obligations under [the] Convention.” 

The declarations sought by the plaintiff in Proceeding No S139/2015 were in a slightly different form, but nothing presently turns on that difference of form.

In the documents styled as amended writs of summons and amended statements of claim, each plaintiff has expanded his claim for declaratory relief and has added a claim for an injunction.  The claims are relevantly identical.  Making allowance for minor discrepancies, which are obviously the result of typographical and clerical or transcription errors, the claims as now sought to be pursued in each proceeding can be taken to be for: 

1. “A Declaration that the Convention . . . has been enacted into Australian law by the Crimes (Torture) Act 1988 (Cth).

2.A Declaration that the Australian Government has accepted the jurisdiction of the . . . Committee . . . to decide the question of whether Australia would violate the provisions of the Convention by forcibly returning the plaintiff to [his country of citizenship].

3.A Declaration that the [Australian Government], by . . . engaging in the process under Article 22 of the Convention in relation to the Plaintiff’s Communication to the Committee, has created a legitimate expectation that it will not depart from the process or exercise its powers in a manner inconsistent with that process.

4.A Declaration that the [Minister], by himself or his officers or agents[,] has no power under section 198 of the Migration Act to remove the Plaintiff from Australia in circumstances w[h]ere to do so would involve a contravention of Article 22 of the Convention.

5.A Declaration that it is not reasonabl[y] practicable to remove the plaintiff from Australia within the meaning of section 198 of the [Act] in circumstances w[h]ere to do so would involve a contravention of Article 22 of the Convention.

6.A Declaration that section 197C of the Act does [not] excuse compliance by the Defendants with Article 22 of the Convention in the exercise of any power under section 198 of the [Act].

7.An injunction to restrain the Defendants from removing the plaintiff from Australia pending the Committee announcing its decision.”

The provisions of a treaty to which Australia is a party do not give rise to rights or obligations which are directly enforceable by individuals under Australian law unless those provisions have been incorporated into domestic law through the passage of legislation.  Declaratory relief is confined by the considerations which mark out the boundaries of judicial power, and any such relief must therefore be directed to the determination of controversies cognisable under Australian law, and not to answering abstract or hypothetical questions.

The presence of section 75(i) of the Constitution, conferring original jurisdiction on this Court, does not point in a direction different from those well‑settled principles. That head of jurisdiction, like other heads of jurisdiction, requires, first and foremost, the existence of a matter, a conception which involves the existence of a justiciable controversy about rights, duties, powers or liabilities cognisable under Australian law.

It is the fact that no part of the Convention relevant to each of the plaintiff’s proceedings is, or at any time relevant to the plaintiff’s circumstances has been, legislatively incorporated into Australian law. The Crimes (Torture) Act 1988 (Cth) was repealed by the Crimes Legislation Amendment (Torture Prohibition and Death Penalty Abolition) Act 2010 (Cth).

The result is that there is no arguable basis for the declaratory relief sought in the writs of summons and statements of claim as originally filed, and that there is similarly no arguable basis for either of the first two declarations which the plaintiffs indicate that they now seek.

The third of the declarations which the plaintiffs indicate that they now seek is framed in terms of what the defendants in their written submissions fairly characterise as a “freestanding legitimate expectation”.  The plaintiffs have not identified the consequences that would flow if the expectation were disappointed, although it may be assumed that they would seek to rely on that disappointment to ground a denial of procedural fairness.  To establish such a denial, it would be incumbent on each plaintiff to demonstrate that the plaintiff had suffered some “practical injustice” of a procedural nature.  The plaintiffs have asserted no basis for considering that such a practical injustice would be made out.

In circumstances where each plaintiff was able to participate in a statutory process for the assessment of their protection claims (including, by reason of section 36(2)(aa) of the Migration Act, any claims under the Convention), and in which each plaintiff had, and pursued, subsequent avenues of merits review and judicial review, I consider it highly unlikely that practical injustice could be made out.  Therefore, looking beyond the difficulties posed by its abstract form, I do not consider that there has been shown to be any substance in the claim for the third of the declarations.

The plaintiffs’ claim in relation to each of the remaining three declarations proceeds on the assumption that their removal from Australia would involve a contravention of Article 22 of the Convention. It is not immediately obvious that this assumption is correct in circumstances where the Article primarily governs the procedure for the making of, and the Committee’s response to, communications. Even if it is assumed that the removal of each plaintiff would contravene Article 22 of the Convention, there is no sound basis for the argument that a valid exercise of the power conferred by section 198 of the Act is conditioned upon Australia’s compliance with Article 22 of the Convention.

To the extent that the last of the declarations might be thought implicitly to proceed on the basis that section 197C is invalid for non‑compliance with the Convention, the argument is untenable.  As it was put by seven members of the High Court in Horta v The Commonwealth (1994) 181 CLR 183 at 195, “there is simply no basis either in s 51(xxix) or in any other provision of the Constitution for the plaintiffs’ submission that the legislative power conferred by s 51(xxix) must be confined within the limits of ‘Australia’s legislative competence as recognized by international law’”.

As the judgment of Justice McHugh in Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1 at 64 makes clear, the same principle must apply for the legislative power with respect to “aliens” under section 51(xix) of the Constitution.

The plaintiffs do not point to any aspect of Australian law, be it statutory or common law, which would provide independent support for the injunctive relief which is sought.  The failure of their claims for declarations brings with it, in each case, a failure of the claim to an injunction. 

In the event, I am satisfied that none of the plaintiffs’ proceedings disclose a cause of action.  I consider that it is appropriate to grant the relief sought by the defendants.  In each proceeding I order that:

1.The proceeding be dismissed; and

2.The plaintiff pay the costs of the defendants.

AT 9.54 AM THE MATTERS WERE CONCLUDED