Plaintiff S120 of 2015 v Minister for Immigration and Border Protection & Anor; Plaintiff S121 of 2015 v Minister for Immigration and Border Protection

[2015] HCATrans 283

[2015] HCATrans 283

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney   No S120 of 2015

B e t w e e n -

PLAINTIFF S120 OF 2015

Plaintiff

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Defendant

AUDREY FERNANDES, IMA PROTECTION NSW, DEPARTMENT OF IMMIGRATION AND BORDER PROTECTION

Second Defendant

Office of the Registry
  Sydney   No S121 of 2015

B e t w e e n -

PLAINTIFF S121 OF 2015

Plaintiff

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Defendant

JAMES MACGIBBON, IMA PROTECTION NSW, DEPARTMENT OF IMMIGRATION AND BORDER PROTECTION

Second Defendant

Applications for order to show cause

GAGELER J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON THURSDAY, 29 OCTOBER 2015, AT 9.54 AM

Copyright in the High Court of Australia

____________________

MR S.E.J. PRINCE:   Your Honour, I appear with my learned friend, MR P.W. BODISCO, in both matters.  (instructed by Michaela Byers, Solicitor)

MR S.P. DONAGHUE, QC:   Your Honours, I appear with MS J.E. DAVIDSON in both matters for the defendants.  (instructed by Australian Government Solicitor)

HIS HONOUR:   Mr Prince.

MR PRINCE:   As I understand it, the question in this matter is whether to remit or to state a case.

HIS HONOUR:   There may be a third option.

MR PRINCE:   There may be a third option, with which I am now acutely familiar.  We would say that it should be remitted to the Federal Circuit Court for these reasons.  First of all, it was originally filed in this Court because at the time that it was filed, the Federal Circuit Court were routinely dismissing these cases involving the issue about privacy breach and that routine seems to have stopped since the decision of the Full Court of the Federal Court in SZSSJ.

HIS HONOUR:   Yes.

MR PRINCE:   So there is no longer any utility in these proceedings being before this Court.  Secondly, to the extent that my friends urge the Court to state a case in this matter, to do so would really have the effect of circumventing the requirement for special leave in SZSSJ and that threshold should not be obviated and it is not in my clients’ interests for that threshold to be obviated.  They want the benefit of SZSSJ in the Federal Circuit Court, to which they are currently entitled.

HIS HONOUR:   Is there any urgency in the proceedings from your clients’ perspective?

MR PRINCE:   No. 

HIS HONOUR:   If these proceedings were to be stood over until after the special leave application in SZSSJ, would your client be prejudiced?

MR PRINCE:   No.

HIS HONOUR:   You are speaking for the clients in each of the two proceedings?

MR PRINCE:   That is right, yes.

HIS HONOUR:   Very well.  I might hear from Mr Donaghue.

MR PRINCE:   Thank you, your Honour.

HIS HONOUR:   You are wanting quite a lot from these proceedings, Mr Donaghue.

MR DONAGHUE:   Yes, your Honour.  The main issue, as we see it, is this.  Does your Honour have a copy of SZSSJ with you?

HIS HONOUR:   I have a copy; I have not studied it.

MR DONAGHUE:   Your Honour, can I direct my submissions to this question:  what is the advantage of looking at the legal issues that are raised in SZSSJ in this proceeding, rather than in that proceeding, leaving aside for the moment the temporal question your Honour raises.  I can understand why your Honour might want to defer the matter until after the special leave application, but our concern is that in the event that the Court were to grant special leave in SZSSJ, there are reasons that it would be better to look at the legal issues through the context of this proceeding and a stated or special case, rather than the appeal in that matter.

I say that because of the factual foundation against which the legal issues would be examined.  If your Honour has SZSSJ and goes to paragraph 75 ‑ ‑ ‑

HIS HONOUR:   So, are we dealing here with the procedural fairness point as distinct from the jurisdictional point, or did they blend?

MR DONAGHUE:   Yes, your Honour.  We are dealing here with – this is specifically directed to the procedural fairness point.  Essentially – but in some respects, your Honour, the issues interweave because the factual issue I am going to concerns the question of what decision the Minister had made for the purposes of what I will call the dispensing powers or the non‑compellable powers.  The Full Court found that the Minister had embarked on a process of consideration and then concluded that the Minister had, to use their words, arrived at the second stage and it was on that basis that it was said S10 did not apply and various other consequences followed.  That conclusion would also have implications for the jurisdictional issues in relation to the Federal Circuit Court’s jurisdiction, in our submission.

HIS HONOUR:   I see, so the jurisdictional point is not a pure question of construction.  It depends on the characterisation of the facts.

MR DONAGHUE:   It depends upon the characterisation of the facts because you need to – although we agree with the Full Court that factually what was happening in the ITOA process that was challenged was conduct preparatory to the making of a decision by the Minister.  We say that conclusion having been correctly reached, the consequence is that the Federal Circuit Court did not have jurisdiction, at least at the point where an ITOA is negative because that constitutes a decision of the Minister not to exercise the non‑compellable powers and that is excluded from the jurisdiction of the Circuit Court.  So that is how those issues connect.

HIS HONOUR:   Are you telling me that the facts here are subtly different from the facts there?

MR DONAGHUE:   Your Honour, the position in a nutshell is that while the Minister accepts that the process of consideration of the non‑compellable powers had commenced, that is not so for the reasons that are advanced by the Full Court which really, in our submission, intermingle legal reasoning with factual conclusions.  Facts are said to be so because they should be so, when the law is correctly analysed and the court accepted that there were deficient fact‑finding at trial, said we will now, as the Full Court, make the factual findings and then did so on an imperfect evidentiary foundation and in a way that weaves in legal reasoning that is wrong.

Now, if we succeed, or if the Minister succeeds in the appeal in SZSSJ of attacking all of that reasoning, that might leave a question as to well, what are the factual foundations upon which the issues are actually to be resolved.  We submit that it would be far better for the court to actually have an agreed document that says this is what the Minister knew, for example.

So to give your Honour, perhaps the passages that illustrate the point most clearly, if your Honour looks first at paragraph 75, which on my print is on pages 24 to 25, if your Honour has the same version, near the top of page 25, a few lines above the list of bullet points ‑ ‑ ‑

HIS HONOUR:   I do not think I have the same version, but I do have paragraph 75.

MR DONAGHUE:   Okay, well if your Honour has paragraph 75 it should conclude with a list of bullet points.  If your Honour goes a few lines up from that you will see the court says:

the Federal Circuit Court failed to appreciate the significance of M61 and S10 and necessarily, therefore, the distinction between them.  Not appreciating this, it failed to make the critical factual finding which needed to be made, viz, whether the Minister was merely considering whether to exercise these powers (S10) or was in fact in the process of considering whether to exercise them -

It might be doubted whether that is actually the critical distinction, but leaving that point aside, the court then said:

It is necessary, therefore, for this Court to make that finding.

It lists some evidence.  Now, that list is, with respect to the Full Court, incomplete.  There are documents that bear directly on the question that the court is making fact‑finding about, but you will then see at the end of paragraph 80, the last few lines, the court is really speculating about the Minister’s knowledge.  It says:

we consider it unlikely that the Minister is not personally aware of the Data Breach and the processes contemplated –

and then, having said that it is unlikely, that finding morphs into a finding of knowledge in paragraphs 81 and 82 and into a finding that the Minister has already decided to consider these matters.  Now, there are, as you would expect, documents, ministerial submissions that show what the Minister was being told about the data breach and the state of knowledge and, in our submission, it would be preferable for the Court to be able to consider those documents directly rather than inferences about what seems likely ‑ ‑ ‑

HIS HONOUR:   When you say there are documents, are there documents in the record in SZSSJ?

MR DONAGHUE:   No, there are not because, as the court pointed out, the trial court failed to appreciate what it said the significance of these things were, that the documentary material was not before the Circuit Court and then the issues evolved or changed in the Full Court without the evidence that would have borne on the proper resolution of those issues being available to that court.  Just to complete this, your Honour, you will see the intermingling I was talking about in paragraphs 83 through to about 85 where – paragraph 83, for example, one starts from the undoubted proposition that:

The dispensing powers are made personal to the Minister.

Then it is suggested that the ITOA process therefore cannot lead to an endpoint where the Minister does not become aware of it.  We would dispute that proposition.  But then what happens in the rest of that paragraph and the next paragraph is that ideas of ministerial responsibility, which we submit are at least in substantial part political ideas, are converted into the notion that the Minister is legally responsible as in to be understood as undertaking all decisions made in the Department.  That seems to be what the court is saying in paragraphs 84 and 85. 

So that reasoning will undoubtedly be subject to attack if special leave is granted in SZSSJ.  It is tied up with the factual findings that the court made and even though we do not dispute the ultimate proposition that the Minister had embarked upon considering the process, we submit that it would be better for the Court to have a firmer foundation for the examination of the questions that arise.

HIS HONOUR:   Mr Donaghue, if the special leave application in SZSSJ were refused, so that the jurisdictional issue were to be treated as governed by the decision in this case, that is in that case, would it follow that these two proceedings would be incapable of being remitted to the Federal Circuit Court?

MR DONAGHUE:   Your Honour, the answer to that is that there is a factual difference between these proceedings and SZSSJ which is that in that matter the ITOA was not complete at the time that the Full Court examined the issues.  Partly for that reason the court said there is not yet a decision of the Minister not to exercise the dispensing of powers.  So I do not know - your Honour is no doubt familiar with these provisions but in 474(7)(a) of the Migration Act ‑ ‑ ‑

HIS HONOUR:   I used to be more familiar.

MR DONAGHUE: Yes. So the scheme of this – perhaps to take it in order, your Honour, is that the jurisdiction of the Circuit Court is specified in 476. It is the same as the jurisdiction of this Court under 75(v) of the Constitution subject to section 476(2).

HIS HONOUR:   Yes.

MR DONAGHUE:   Subsection (2)(d) excludes from the Circuit Court’s jurisdiction jurisdiction over a privative clause or purported privative clause decision as mentioned in 474(7).  If your Honour then goes to 474(7) you find a list of privative clause decisions which in (a) includes:

a decision of the Minister not to exercise, or not to consider the exercise –

of various dispensing powers, including the three in issue here - 48B, 195A and 417.  So in this case we submit that the ITOA having been completed with a determination that non‑refoulement obligations were not owed, on a long line of Federal Court authority, that is a decision of the Minister not to exercise the power and, therefore, your Honour could not remit the matter to the Circuit Court because SZSSJ would be distinguishable, the court there having relied in part on the fact that there was not yet a decision not to exercise the power.

So if we end up in the Circuit Court there will still be debate about the jurisdiction of that court to deal with these matters.  The correctness of the Full Court’s approach to the whole topic of the jurisdiction is, as your Honour knows, one of the matters in play in SZSSJ but if special leave is refused, so that the Full Court is right so far as it went, it would still leave an unresolved question in cases where the ITOA had actually been concluded.

HIS HONOUR:   All right, I think I understand that.  Mr Donaghue, I must say I am inclined to think that the most efficient procedural course would be to stand both of the proceedings over to be relisted after the determination of the special leave application in SZSSJ, without pre‑empting what might happen on that further occasion.

MR DONAGHUE:   Yes.

HIS HONOUR:   If an accommodation is reached between the parties as to a special case, then I will consider it – I would be inclined to consider it on that occasion.  Of course, I cannot make you agree.

MR DONAGHUE:   No.

HIS HONOUR:   If there is no agreement, then in the light of the status of SZSSJ at that time I would make a decision as to remitter.

MR DONAGHUE:   Yes, your Honour.  It might be that if special leave has been granted in SZSSJ and there is no agreement, it is possible – I will need to seek instructions – but we might invite your Honour to state a case in this matter that would potentially overcome some of the issues that I have addressed your Honour on.

HIS HONOUR:   Yes, well you would come armed on that occasion with the form of the case and we could sensibly debate it at that point.

MR DONAGHUE:   I understand.  We do not oppose that course, your Honour.

HIS HONOUR:   Very well.  Mr Prince, I take it that you would be content with that course?

MR PRINCE:   Yes, your Honour.

HIS HONOUR:   Very well.  In each of proceeding S120/2015 v Minister for Immigration and Border Protection & Anor and proceeding S121/2015 v Minister for Immigration and Border Protection & Anor I stand the proceeding out of the list, to be relisted after the determination of the application for special leave to appeal from the decision of the Full Court of the Federal Court of Australia in SZSSJ v Minister for Immigration and Border Protection [2015] FCAFC 125. I order that the costs of this directions hearing be costs in each cause.

MR DONAGHUE:   Do we have liberty to bring the matter back on once that judgment has been ‑ ‑ ‑

HIS HONOUR:   Yes, you do.  Mr Donaghue, I am not now dealing with that special leave application, but is that a matter in which you have sought expedition?

MR DONAGHUE:   No.  The submissions were filed on the Minister’s behalf yesterday, but there has not been an application for expedition, at least as yet.

HIS HONOUR:   Very well.  The Court will now adjourn.

AT 10.11 AM THE MATTER WAS ADJOURNED