Plaintiff S121-2010 v The Commonwealth of Australia & Ors

[2010] HCATrans 171

[2010] HCATrans 171

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S121 of 2010

B e t w e e n -

PLAINTIFF S121/2010

Plaintiff

and

THE COMMONWEALTH OF AUSTRALIA

First Defendant

MINISTER FOR IMMIGRATION AND CITIZENSHIP

Second Defendant

CHRISTOPHER KEHER, AS A CONTRACTOR OF THE MINISTER FOR IMMIGRATION AND CITIZENSHIP

Third Defendant

ANKICA ROMIC, AS DELEGATE OF THE MINISTER FOR IMMIGRATION AND CITIZENSHIP

Fourth Defendant

LISA GOBBO, AS DELEGATE OF THE MINISTER FOR IMMIGRATION AND CITIZENSHIP

Fifth Defendant

DEPARTMENT OF IMMIGRATION AND CITIZENSHIP

Sixth Defendant

Directions hearing

HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 25 JUNE 2010, AT 10.40 AM

Copyright in the High Court of Australia

__________________

MR S.D. GLASS:   If the Court pleases, for the plaintiff.  (instructed by Gilbert + Tobin Lawyers)

MR S.P. DONAGHUE:   If the Court pleases, I appear with MR D.F. O’LEARY for the defendants.  (instructed by Australian Government Solicitor)

HIS HONOUR:   Yes.  Again, just give me a moment while I sort out what papers I have and what I do not.  Now, in your matter, Mr Glass, you were good enough to file a set of submissions dated 25 June.  Is that right?

MR GLASS:   Yes, that is right.

HIS HONOUR:   Now, you have heard, of course, the whole of the debate that has taken place.  Is there anything that you need to modify about what was said in the submissions in light of what has been ‑ ‑ ‑

MR GLASS:   No, just expand rather than modify, perhaps, your Honour.

HIS HONOUR:   Yes, please.

MR GLASS:   The key point or the key ground, I think, your Honour, that we rely upon that we say is not raised by the other applications is the one in paragraph 4(a) of our submissions and that is the issue that was, your Honour, direct the parties to an M61 as arising out of paragraph 8 of the statement of the Commonwealth and our application raises that issue fair and square and, in our respectful submission, that needs to be dealt with at the same time as the other issues otherwise there is a sort of lacuna in the matters of general principle that will be decided in those other matters.

The additional point that I would like to make, your Honour, is that our application also makes the ground fair and square which I think the others do not, although it is not completely clear, that the Minister, or at least if not the Minister, then the Federal Executive has made these particular guidelines and embarked down the process of making decisions under these guidelines and the point made in paragraphs 13(a) to (f), I think, of our application is that having done so, section 46A(7) no longer has any work to.  We are not in that territory any more.  We are in section 46(2) territory and the Minister, or if it is not the Minister, the Federal Executive has to make the decision under section 46(2) unless and until the guidelines are modified or withdrawn.

HIS HONOUR:   Could I just explore that a moment with you.  Section 46(2) is hinged about there being an application for a visa.  Now, is that a statutory term, “an application for a visa”?

MR GLASS:   Yes, it is.

HIS HONOUR:   Does the evidence reveal that something that accords with that statutory term has been made, lodged, whatever one does with an application for visa?

MR GLASS:   No, it does not, your Honour.  The question with section 46A(2) ‑ ‑ ‑

HIS HONOUR:   Section 46A(2), not 46(2)?

MR GLASS:   Yes, I apologise, your Honour.  Did I say 46?

HIS HONOUR:   Right.  So 46A(2) you say is triggered by what has occurred.  I see.

MR GLASS:   We say it is engaged and the Minister has to – or if not the Minister, if it is truly as the Commonwealth says a non‑statutory process, then perhaps some member of the Federal Executive must make a decision whether or not to lift the bar under section 46A(2).  We have already passed through the gate of 46A(7) and that is an issue raised by our application.

HIS HONOUR:   Yes, I see.  Now, the directions you have proposed were directions for filing and service of material as well also as directions concerning written submissions.  The first trigger in that would be for the defendants to put on their material in answer to yours.  That presupposes your material is complete, is it?

MR GLASS:   Our material is complete, your Honour.  I must say, we had assumed, though I stand to be corrected, that the material would look much the same as the materials filed in M61.

HIS HONOUR:   Yes.  So just to be quite plain about it, you say there are two aspects of your application which set it apart from either of the two other matters that have been mentioned this morning.  First, you say there is a point squarely raised which is of a kind identified in paragraph 4(a) of your submissions, namely, whether departure from the guidelines constitutes a breach of procedural fairness founding a grant of relief.  The second issue, you say, which is raised in your litigation but not elsewhere, is that you say that by starting and undertaking the RSA process?

MR GLASS:   Yes.

HIS HONOUR:   Regardless of review?

MR GLASS:   Yes, and by publishing the guidelines.

HIS HONOUR:   So even without engagement of the RSA process in respect of an individual, you say, one, the publication of guidelines and/or the engagement of those guidelines in the case of an individual constitutes a step sufficient to engage 46A(7) in a manner requiring the Minister to form an opinion under 46A(2).  Do I capture the point you ‑ ‑ ‑

MR GLASS:   You have captured correctly, save only to add that, of course, the guidelines are only guidelines and can be withdrawn or amended any time, but, of course, on the facts in all of these cases they have not been.

HIS HONOUR:   Yes, I understand.  Now, Dr Donaghue, what do you say I should do in this case?

MR DONAGHUE:   We say that your Honour should not refer it to the Full Court and it should await the determination by the Full Court of the issues in M61 and M69.

HIS HONOUR:   Should I require completion of affidavit material?

MR DONAGHUE:   Not yet, your Honour, no.  Can I just develop that a little bit.  We submit that ultimately there is a cost benefit analysis involved in your Honour’s judgment and if I could employ a visual aid.  This is the material presently in M61 and 121.  It is clearly voluminous.  It substantially does not overlap with the – this does not included our material – the Metcalf affidavit and the statement.  It is country information about Pakistan.  There is a complicated factual background for this plaintiff that raises questions that are quite removed from the points of principles that would be being sought to be raised.

HIS HONOUR:   Be it so, are the points which have been identified points which will emerge for consideration in 61 or 69 or both?

MR DONAGHUE:   In relation to the second point, the 46A(7) point, we understand that to be squarely raised by ground 10 in the M61.  That ground, just to remind your Honour, says:

by establishing the RSA process and through his officers and agents embarking upon a consideration of whether it is in the public interest for the power in s 46A(2) or the power in s 195A(2) to be exercised ‑ ‑ ‑

HIS HONOUR:   Just interrupting you, is it plain from ground 10 that both the establishment of the process and/or the engagement of the process are put in issue as being sufficient triggers to engage 46A(2)?

MR DONAGHUE:   It says both by establishing the process and through his officers or agents embarking on a consideration.

HIS HONOUR:   Yes, I see.

MR DONAGHUE:   So, as we see it, that issue is already live.  In relation to the other point, as your Honour observed to Ms Mortimer, it was a little unclear precisely how the plaintiff in that matter seeks to rely upon the guidelines.  I do accept that as things are presently framed, that point is more squarely raised in 121 than in the other matters.

HIS HONOUR:   The source of the natural justice obligation in 61 is couched in terms that would permit argument perhaps along a couple of paths.

MR DONAGHUE:   Indeed.  So one cannot rule out at the moment that that issue is already raised in 61 and we submit that while it is raised more clearly in S121, that does not produce a sufficient advantage for the Full Court to outweigh the disadvantage of the further factual material that would have to go in and the time that would be required in the Full Court to deal with matters that are not representative of the Christmas Island population more generally. 

There is also a specific problem that would have to be addressed in relation to one ground which, I think, the Solicitor‑General mentioned in passing to your Honour on the last occasion which is in relation to some exempt FOI documents that are said to have been relied on.  That, no doubt, can ultimately be managed, but the management of it is not particularly well suited to this Court and in the end, if the points of principle are decided in a particular way, it may never be necessary to resolve those points.  If it is necessary, they can be resolved elsewhere, we would submit.

HIS HONOUR:   Is there any reason why – and this is directed first to you, Dr Donaghue, and is about to be directed to Mr Glass – is there any reason why I should not as Ms Mortimer whether this point of departure from the guidelines will emerge in 61?

MR DONAGHUE:   None at all, from our perspective.

HIS HONOUR:   Mr Glass?

MR GLASS:   None from our perspective.

HIS HONOUR:   Well, Ms Mortimer?

MR GLASS:   Your Honour, just before, if I may, the issue that I was trying to make with the other point, that is whether section 46A(2) is engaged, is not so much whether paragraphs 9 and 10 of M61 raise the question of by the issue of the guidelines and/or by the conduct of an inquiry or a hearing or the engagement in the process.  The issue is whether or not, as I read paragraphs 9 and 10, they were still directed to the question of the Minister’s personal consideration of these issues, whereas we put it more generally.  Even if, as the Commonwealth says, it is a non‑statutory exercise of power, that issue still arises.  Now, if Ms Mortimer tells your Honour that that is intended to be covered by her application as well, then I have nothing to say further on it.

HIS HONOUR:   Yes, thank you, Mr Glass.  Well, Ms Mortimer, may I ask you the questions I foreshadowed or should I not?

MS MORTIMER:   No, your Honour, I am perfectly content to answer them.  Your Honour, the answer is this, that we will not be making a case that the source of the obligation to afford procedural fairness is found in the guidelines.  We will be saying either that the statutory powers that we say are engaged are conditioned by that obligation or the Executive power is conditioned by that obligation.

HIS HONOUR:   I understand that.

MS MORTIMER:   The policy guidelines may affect the content of the obligation but we will be saying that the content of that obligation as reflected in the guidelines really reflects what we say is otherwise the content of the obligation.

HIS HONOUR:   Leave aside the root of the obligation which I would understand why you would seek to put it in the fashion you have identified, but do you say as a matter of fact in 61 that an aspect of departure is identified by comparison between guideline and what occurred?

MS MORTIMER:   Yes, we will, your Honour, but we will not be – as I read the application in S121, it had a flavour of Lam, your Honour, that because of that promulgation there was a legitimate expectation and that constitutes the denial of procedural fairness.  That is not our argument, your Honour.  Our argument is different to that and it simply is that if the policy guidelines can be taken and should be taken as reflecting the content of the obligation, then they have not been followed.  So in that sense, we will be making that argument, but we are not making a Lam legitimate expectation argument as a separate ground, your Honour, if that is what S121 is doing.

HIS HONOUR:   Yes, thank you.

MS MORTIMER:   If your Honour pleases.

HIS HONOUR:   Thank you.  Well, Mr Glass, in light of that, what do you say I should do?

MR GLASS:   I would respectfully ask your Honour to make similar directions as your Honour made in M61 and M69 and we will, of course, work constructively with the Commonwealth to deal with the issues that Dr Donaghue has foreshadowed.

MR DONAGHUE:   Your Honour, may I just add one matter.  In paragraph 4 of my friend’s submissions he identifies three differences.  The submissions today have only dealt with the first of those differences.  The other two differences are additional grounds.  There is an illogicality

argument and an argument based on S395.  I simply rise to add that consideration of those grounds is not necessarily a factually intense matter.  It requires one to descend into the decision‑making process and so is a further difficulty, we submit.

HIS HONOUR:   Yes, thank you, Mr Donague.

On 21 May 2010, Plaintiff S121 of 2010 commenced a proceeding in the Court by application for order to show cause directed to the Commonwealth of Australia and others.  The application concerns matters raised by the process for dealing with non‑citizens who enter Australia at Christmas Island without a visa which is a procedure conveniently referred to as the “offshore processing regime”.  That regime includes the Refugee Status Assessment (RSA) process under which non‑citizens who enter Australia at Christmas Island without a visa are assessed and it is determined whether they are persons to whom Australia has protection obligations under the Refugees Convention as modified by the 1967 Protocol.

This application is one of several pending in the Court which have been instituted by persons who have been the subject of the offshore processing regime.  Two of the proceedings instituted by such persons, matters M61 of 2010 and M69 of 2010, have been identified as cases which raise a number of issues which bear upon the availability of relief of the kind sought by persons who have been subjected to the offshore processing regime. 

Directions have been given in proceedings M61 and M69 with a view to preparing those proceedings for reference either of the whole proceeding or a part of the proceeding for consideration by a Full Court of issues presented in the applications.  Proceeding M61 was instituted in the Court on 29 April 2010.  Proceeding M69 was instituted on 24 May 2010.  The proceeding by Plaintiff S121 of 2010 was instituted between those two proceedings by filing of originating process on 21 May 2010. 

Proceedings in M61 having been first issued in this Court, there is a basis of priority of issue for using that case as a vehicle in which to agitate the points of more general application which arise in connection with the several applications which are now pending in the Court.  M69 has been singled out as possibly meriting reference to a Full Court because there are raised in that application constitutional issues which bear upon the availability of relief of a kind sought by the several plaintiffs who have instituted proceedings in the Court concerning their treatment under the offshore processing regime.

It is submitted on behalf of the plaintiff in matter S121 of 2010 that that proceeding should go forward for consideration by a Full Court at the same time as M61 and M69 because in matter S121 there are raised complaints or issues of a kind which, if raised at all in the other proceedings, are not raised quite so explicitly and directly as they are in the proceeding S121. 

Particular mention is made of two aspects of the complaints put forward as grounds for relief in S121.  First, whether the requirements of procedural fairness which the plaintiff would allege were denied in the treatment accorded to the plaintiff in the offshore processing regime were breached by a failure to give notice of an intention to depart from guidelines promulgated by the Department in connection with the RSA process. 

Second, the plaintiff in S121 would further allege that the application which is made raises an issue of whether, either by promulgating the guidelines or by undertaking the process for which those guidelines were promulgated, the Minister or the Department has so acted as to engage a requirement for the Minister to make a decision under section 46A(2) of the Migration Act 1958 (Cth).

The Commonwealth and other defendants submit that matter S121 of 2010 should not go forward for hearing at the same time as matters M61 and M69 because, in effect, it is submitted that the costs of advancing a third case outweigh the benefits that would be derived from having a third case before the Full Court in company with proceedings in M61 and M69.  The defendants acknowledge, inevitably, that the issues which are raised in proceeding S121 of 2010 are issues which are specific to the particular plaintiff and arise out of the facts and circumstances that pertain to that plaintiff which, in some respects, perhaps in some important respects, differ from the facts and circumstances that pertain to either plaintiff in the other two proceedings.

I accept that the question ultimately to be decided is one moved largely by an assessment of advantage and disadvantage from putting forward a third case.  I am not persuaded that the advantages of advancing a third case outweigh the detriments that would attend upon doing so.  As is apparent from the course of proceedings this morning, I am already concerned that the advancing of the two cases, M61 and M69, at least in their entirety, will present the Full Court with issues in a fashion insufficiently digested to permit the efficient and economical determination of issues of principle suitable for determination by a Full Court of this Court.

Those are matters to which the parties propose to give further attention and which I have a degree of confidence may, to at least a considerable extent, be alleviated over the next several weeks.  But to add a third proceeding to two proceedings which are already complex is, I think, not desirable when the particular issues to which reference is made are issues which are touched on and, I suspect, to a large extent will be explored, at least at a sufficient level of principle, in consideration of the two proceedings which are to go forward.

In all the circumstances, I am of the opinion that the appropriate course now to take in relation to S121 is to stand it out of the list generally with liberty to either party to restore it to the list on not less than three days notice in writing to the opposite parties.  Costs of today would be costs in the application.  There will be orders in those terms.

MR GLASS:   If the Court pleases.

MR DONAGHUE:   If the Court pleases.

HIS HONOUR:   Now, before parting with these matters, I should thank counsel for the care with which they have addressed the issues and the efforts that have thus far gone into attempting to put these cases into a form suitable for dealing with by a Full Court.  If in the course of the next several weeks further problems emerge which are thought to be problems that the Court should address, then the parties are urged to bring those problems to the surface and have them explored at the next directions hearing.  I hope that that will not be necessary, I have no expectation that it will be, but if the problems start to come out, we have to address them sooner rather than later. 

I referred rather flippantly to the period between 13 and 16 July as a drop‑dead date.  By that I mean this.  If these cases are to go forward on 24 and 25 August, there will have to be a final decision made then because if they are not to go forward, we have to give some other case or cases adequate notice that they are going to come on on those days.  So we have to get to it – answered by then.  Now, with that encomium ringing in the ears of counsel, is there any matter counsel need to or wish to raise further?

MS MORTIMER:   No, your Honour.

HIS HONOUR:   Thank you.

AT 11.11 AM THE MATTER WAS ADJOURNED