Plaintiff S156/2013 v Minister for Immigration, Multicultural Affairs and Citizenship

[2013] HCATrans 202

[2013] HCATrans 202

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S156 of 2013

B e t w e e n -

PLAINTIFF S156/2013

Plaintiff

and

MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS AND CITIZENSHIP

First Defendant

COMMONWEALTH OF AUSTRALIA

Second Defendant

Directions hearing

FRENCH CJ

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO SYDNEY

ON THURSDAY, 5 SEPTEMBER 2013, AT 9.03 AM

Copyright in the High Court of Australia

MR M.A. ROBINSON, SC:   If the Court pleases, I appear with my learned friend, MR J. WILLIAMS, for the plaintiff.  (instructed by Adrian Joel & Co)

MR S.P. DONAGHUE, SC:   If the Court pleases, I appear with my learned friend, MR N.M. WOOD, for the defendants.  (instructed by Australian Government Solicitor)

HIS HONOUR:   Thank you.  Mr Robinson, I gather you will let me know if you are having any problems there with the audio.

MR ROBINSON:   It is good so far, your Honour, thank you.

HIS HONOUR:   All right.  Now, you have a summons and I think there are some submissions which have been filed by the defendants proposing that there be some discussions about whether agreement can be reached on a case stated.

MR ROBINSON:   Your Honour, there is common ground – I do move on the summons for direction and I read the affidavit in support.  As your Honour has seen from the submissions for the Commonwealth there is some common ground.  In terms of access to the client can I say that we have been able to speak to the client - we have been provided with the contact details by the Commonwealth and - we have taken an affidavit from the client but there is no lawyer or justice of the peace that we have been able to find on Manus Island in Papua New Guinea so the affidavit that we took from our client is attached to my instructing solicitor’s affidavit which is with the summons and that is the best we can do for the moment.

HIS HONOUR:   So far as the factual issues relevant to your client are concerned, what more is relevant to your proceeding than that your client is an unauthorised maritime arrival within the meaning of section 198AA and the other provisions of the new subdivision, that he was taken to Manus Island as a regional processing country pursuant to a declaration made by the Minister, that he does not want to be there and that you are instructed to challenge both the validity of the underlying legislation and of the declaration?

MR ROBINSON:   There are two things, your Honour, one at the beginning and one at the end.  At the beginning, in Australia he made a refugee application.  He specifically asked for asylum.

HIS HONOUR:   Yes.

MR ROBINSON:   Secondly, at the end, that he is not allowed freedom of movement.  He is in detention and there is no prospect of release that he is aware of.

HIS HONOUR:   So far as the first issue is concerned, that is unlikely to be in dispute.

MR ROBINSON:   We do not know yet, your Honour.

HIS HONOUR:   Yes.

MR ROBINSON:   We would ask for the client files.  The second issue, apart from access to the client, is the documents.  The Commonwealth has sent us what they say they think are relevant.  They have not said that they are the documents before the Minister at the time that the Minister made the decision.  We would like those documents first and, secondly, we would like the client files and they have told us that we are ‑ ‑ ‑

HIS HONOUR:   What is the relevance of the client files?

MR ROBINSON:   They are relevant to the refugee claim that was made, which they have not yet admitted ‑ ‑ ‑

HIS HONOUR:   But how is that relevant to the legal issues that you are raising which go (a) to the validity of section 198AB and, secondly, to the validity of the Minister’s declaration?

MR ROBINSON:   Your Honour, we are saying 198AB is invalid for a number of reasons.

HIS HONOUR:   That does not depend upon your client’s files.  What I am asking is what is the relevance of your client’s files to the legal issues that you are raising on your application.

MR ROBINSON:   The legal issues include the fact that he was picked up and removed after he made a refugee application.  That is part of the relief that we have sought in the original writ of summons and statement of claim and it is relevant to that, your Honour.  All that we ask is that the Commonwealth produce the files relating to my client.  He was not with them for very long, only perhaps a matter of days so it is not an onerous request, in my submission.  So the documents are the issue that the Commonwealth does not agree.  We would really need, at a minimum, to know what documents were before the Minister.  They have just sent us documents that they say are relevant.  We need the magic words “that these documents were before the Minister” and then we understand and then we can move on to an agreed statement of facts.

The next issue is the amended statement of claim.  The Commonwealth does not oppose the filing of our proposed amended statement of claim and that sets out the issues that my client seeks.  The next issue is pleadings and I can come back to that.  We do not have to have pleadings if we are going down a track of an agreed statement of facts and a draft question of referral.

HIS HONOUR:   There seems to be common ground on that much.

MR ROBINSON:   Yes.  Does your Honour have the draft questions for referral and the draft statement of agreed facts from our side?  They have only been produced yesterday.

HIS HONOUR:   Yes, I have seen those.

MR ROBINSON:   Thank you, your Honour.  That is only so that your Honour can see that the first step has been made by the plaintiff and the defendant will in turn make its contribution and the parties, hopefully within the next 14 to 21 days, come to an agreement, perhaps at a meeting, but certainly we can come to an agreement and come back before your Honour some time in early October.

HIS HONOUR:   I must say, Mr Robinson, having looked at both the proposed amended statement of claim and the draft of the questions for referral, it seems to me there is a lot more work to be done to achieve clarity on precisely what it is that you are seeking and what is relevant to it.  There are an enormous number of facts asserted, for example, in your draft set of questions which seem to me to have no bearing on the legal issues and just to be a distraction.  I mean, there are a number of questions that one would have to clarify in order to ensure this case is fit for argument on a case referred to a Full Court. 

Firstly, let us just go to annexure A to your amended statement of claim.  You seek a declaration that section 198AB of the Migration Act is invalid and that, I presume, is related back to the new paragraph 1 of your amended annexure B which appears to be a generalised statement that the section is invalid because there is nothing in the Constitution to support it.

MR ROBINSON:   Yes, your Honour.

HIS HONOUR:   I would think we would need to have in somewhat sharper focus the particular constitutional argument which you are proposing because, after all, on the face of it, 198AB does appear to be dealing with the question of treatment of unauthorised maritime arrivals by arrangement with other countries which would seem likely to engage either or both of the external affairs power and the aliens power.

MR ROBINSON:   Your Honour, if offshore processing was envisaged by the section that may be correct, but it is now a dumping case.  They are being offloaded to a third world country or to a third country and they are being left there never to return so there is no processing going on.

HIS HONOUR:   But what does that kind of statement say about constitutional power?

MR ROBINSON:   Your Honour, we say that the Commonwealth does not have constitutional power to do precisely that.  The statements in the draft agreed statement of facts, in the second half of it, really go to that.  It does not have the power to take them to a country where they will be detained in bad conditions and left there.  That is what we say.  That is our constitutional ‑ ‑ ‑

HIS HONOUR:   Is that because the conditions are bad or because they are left there or why?

MR ROBINSON:   All three, your Honour.  They are taken to a third country immediately upon arrival in Australia after they have made a claim for refugee status and left there.  That is our case, your Honour.

HIS HONOUR:   How does that relate to invalidity or want of support from the external affairs power?

MR ROBINSON:   We say the power in the Constitution, primarily the immigration power, is not a power to pick someone up on arrival and to remove them to a third country at all, or to a third country where they will be detained. That was not envisaged by the founding fathers of the Constitution. It is not within the terms of immigration as at 1900, your Honour.

HIS HONOUR:   All right.  So this is an argument then about the scope of the power to make laws with respect to migration?

MR ROBINSON:   Yes, your Honour.

HIS HONOUR:   Is it about the scope of any other legislative power?

MR ROBINSON:   It might be argued that it is external affairs to dump citizens of another country on another country, but I do not know if that will seriously be raised, your Honour.  I doubt it is incidental as well.

HIS HONOUR:   I cannot imagine it will not be raised, Mr Robinson, so you are probably going to have to deal with it.

MR ROBINSON:   I accept that, your Honour.

HIS HONOUR:   Now, in going back again to annexure A, paragraph 2, relating to the relief claimed, you have made a kind of omnibus claim here for “An order, writ or declaration”.  It seems that there is a combination of declaration and certiorari.  Precisely what relief are you seeking?

MR ROBINSON:   We would prefer there is a question, your Honour, but we would be happy if your Honour made a declaration that it was invalid.

HIS HONOUR:   Is that your primary relief?

MR ROBINSON:   Yes, your Honour.  The primary relief is that if the legislation – section 198AB which is the linchpin of that small divisional part of the Migration Act inserted after M61 was handed down, our primary case is the invalidity of the section.  Our alternative case is the invalidity of the declaration of the regional processing country of Papua New Guinea.

HIS HONOUR:   All right.  Now, just moving on a bit through annexure B, you seem to be setting out, at least in parts of it – and I am looking at 3, 4 and 5 – are you asserting that those matters which the Minister failed to take into account or to give proper genuine or realistic consideration to are mandatory or were mandatory relevant considerations for the purpose of the exercise of his declaration power?

MR ROBINSON:   The power is couched in terms of discretion.  There is no doubt about that.

HIS HONOUR:   Yes.

MR ROBINSON:   But there is no such thing as unfettered discretion and, in the circumstances, we would contend that those matters were matters that he was required to take into account in the ‑ ‑ ‑

HIS HONOUR:   All right.  Well, they are mandatory relevant considerations and you are saying, in effect, that a failure to take account of those vitiates the exercise of his power to make a declaration or his purported declaration.

MR ROBINSON:   Correct, and that argument holds true as to whether the power is of an administrative character or whether the power is of a legislative character.  It does not matter.  Even if it was a prerogative power it does not matter.

HIS HONOUR:   There is a legal issue lurking in there, is there not, as to whether the matters which you assert he was required to take into account were, in truth, as a matter of law, matters he was required to take into account?  I am just thinking in terms of how one frames questions in the stated case.

MR ROBINSON:   I accept that, your Honour. 

HIS HONOUR:   That would be a fundamental legal question, would it not?

MR ROBINSON:   It may require some finessing, yes, your Honour.

HIS HONOUR:   Yes.  So far as paragraph 6 is concerned, with all due respect, that looks like a kind of generalised grab bag of administrative law, judicial review factors.

MR ROBINSON:   It needs particularisation.

HIS HONOUR:   Does it go beyond what is already in 3, 4 and 5?

MR ROBINSON:   Not a lot, your Honour.  There are aspects that need particularisation and we have not been asked to particularise it by the defendants but we can.  It is plainly a matter for argument, in my submission, but they will not be left bare, your Honour.  They will be dealt with in great detail in the submissions.

HIS HONOUR:   It may be that, for example, in a stated case the parties will agree that there are certain matters which are in issue which you assert are mandatory relevant considerations and they say are not. 

MR ROBINSON:   That is one way to deal with it.  Another way to deal with it is to send the invalidity argument up and to come back to the judicial review case, but I am reluctant to suggest that because that extends the time that my client stays in those terrible conditions.

HIS HONOUR:   Now, so far as paragraph 9 is concerned:

The Minister failed to take into account the following matters in making his decision –

a number of those seem to relate specifically to the plaintiff.  I have regard to (a) and (b), and then (e), (f) and (g) as well.  When we are looking at the validity of the Minister’s declaration, that is not a matter on which the particular circumstances of the plaintiff bear, is it?

MR ROBINSON:   I accept that, your Honour.  Those three words will be removed wherever they appear in paragraph 9 and substituted with appropriate words.  Of course, the Minister made the declaration and the plaintiff was removed later.

HIS HONOUR:   Yes. 

MR ROBINSON:   But the forcible removal of ‑ ‑ ‑

HIS HONOUR:   Matters personal to the plaintiff do not bear upon the validity of the declaration.

MR ROBINSON:   I accept that, subject to this, your Honour.  In constitutional matters the Court accepts facts as background material, at a minimum to establish the necessary factual matrix for the constitutional argument to occur.  We are seeking to do that.

HIS HONOUR:   As I said, it did seem to me that the fundamental factual questions, so far as the plaintiff is concerned, is he arrived – you say he asked for asylum and he was in the category of an unauthorised maritime arrival and that he was removed pursuant to the purported exercise of the power of removal pursuant to the declaration which the Minister made under the subdivision.

MR ROBINSON:   Yes, your Honour. 

HIS HONOUR:   Now, the other element of it is the – and it may be that this is not a matter which would necessarily arise at the point of a referred case stated and that is the question of relief.  You are seeking, among other things, a writ or – I do not know what you mean by a writ – a mandatory injunction for the defendants or either of them such as to command the return of the applicant to Australia forthwith.  What is the duty that you say is to be enforced?

MR ROBINSON:   Your Honour, they still have effective control over my client.

HIS HONOUR:   You say that as a matter of fact.

MR ROBINSON:   That is the fact that we will seek to contend, either by affidavit – and it is pretty clear from the affidavit that we have put on that that is the case.  The defendants say they do not have any control over our client, go and talk to the Papua New Guinean Government if you want to talk to him, but the reality is the Australian Government picked him up, took him there and the Australian Government does have effective control

over the camp, or detention centre as it should be called, at Manus Island.  The Australian Government is there.  The people looking after the plaintiff are Australian contractors.  The security there are Australian contractors and, in my submission, he is in the effective control of Australia. 

So this Court, in my submission, can make a declaration that does have effect for Australians to remove him back to Australia.  But this is a discussion we can have at the end of the day, as it were.  It does not have to be a mandatory injunction to command the return.  It can be a mandatory injunction to take all necessary steps to secure the return of the plaintiff.  We would be happy with that, your Honour.

HIS HONOUR:   What I am trying to throw up, Mr Robinson, with this discussion is the need to clarify the legal and factual issues which you are actually raising which are necessary to the decision of the case and also, ultimately, the utility of the relief you are seeking in relation to declaration and so forth in terms of the ultimate fate of your client.

MR ROBINSON:   Yes, your Honour.

HIS HONOUR:   I have a strong sense that there is a lot of work yet to be done.  That does not mean that that cannot be done in the context of negotiations with the defendant concerning a case stated, but it may also involve some reconsideration of the originating process and the pleading.

MR ROBINSON:   I accept that, your Honour.

HIS HONOUR:   All right.  I will hear from Mr Donaghue now and come back to you.

MR DONAGHUE:   Thank you, your Honour.  As you have seen from our submissions we are content to go forward with an attempt to negotiate in order to bring the clarity to the case that we say is required.  Many of the matters that your Honour has raised with my friend this morning are matters that, in our submission, obviously will need to be given a much sharper focus.  We suggested that a couple of weeks be allowed for those negotiations. 

Having seen the document that my friends provided yesterday evening, we are, it is fair to say, a little concerned as to whether those negotiations are going to be fruitful because we had apprehended that the scope of the agreed facts would be very much limited to the kinds of facts your Honour identified at the outset and to the identification of the documents that were before the Minister when he made the designation and that that would really be the scope of the factual matters that would be necessary in order to agitate the questions about the validity of ‑ ‑ ‑

HIS HONOUR:   I have already indicated to Mr Robinson that on the face of it I think a lot of the facts in his draft are irrelevant.

MR DONAGHUE:   Yes.  If those facts are pressed there will be real difficulty reaching agreement between the parties.  Similarly, in relation to my friend’s assertion then that it is plain that the Commonwealth is in effective control of the people transferred to Manus, that is not going to be an agreed fact.  There is no prospect that the Commonwealth will agree to that.  So there may be some capacity to negotiate around some of the factual details but once we get to the level of ‑ ‑ ‑

HIS HONOUR:   That goes to the level of ultimate relief.

MR DONAGHUE:   Yes.

HIS HONOUR:   Obviously what Mr Robinson is flagging and what you are flagging is there is a disputed factual issue around that.

MR DONAGHUE:   Indeed, yes, and that that might mean that that question needs to be separated or hived off because I have no confidence that it will be possible for the parties to negotiate and agree a set of facts in relation to that.

HIS HONOUR:   Yes.  That question would arise if Mr Robinson succeeded on the legal issues.

MR DONAGHUE:   Yes, indeed.

HIS HONOUR:   If he did not succeed on the legal issues, then cadit quaestio.

MR DONAGHUE:   Precisely, and so the question of the validity of the section and the validity of the designation could sensibly and usefully be agitated because if the Commonwealth is successful then that will be the end of the matter on those questions.  Insofar as we are focusing on those questions, it seems to us that the scope of the facts that are relevant are actually relatively confined.  Many of my friend’s grounds, as your Honour has identified, the mandatory relevant consideration type grounds, the factual position is clear.  The Minister gave a statement of reasons that makes it clear what he took into account.  In some cases ‑ ‑ ‑

HIS HONOUR:   Can one treat that statement of reasons as a complete and exhaustive statement of the Minister’s reasons?

MR DONAGHUE:   Yes.

HIS HONOUR:   So that if it is said that there is a mandatory relevant consideration that he did not take into account and if it is not mentioned in the reasons it could be taken that it was not taken into account.

MR DONAGHUE:   Indeed, and for that reason, to take one example, there is a reference to a UNHCR letter not having been taken into account.  That letter was received by the Minister the day after the designation was made.  It is clear that it was not taken into account.  The legal question is did it have to be taken into account or not and we will submit no.  Similarly, the reference to international obligations, the Minister makes it clear in his statement of reasons what he did and did not take into account in that regard and so it is not really a factual question.  It is a question of, as a matter of law, was he required to consider those matters.

HIS HONOUR:   What about the factual question relevant to Mr Robinson’s request for the client files concerning his client’s asserted request for asylum?

MR DONAGHUE:   Your Honour, insofar as there are documents that bear on the question of whether or not he made a claim for asylum there is no difficulty with producing them.

HIS HONOUR:   You can provide those?

MR DONAGHUE:   Yes.  The summons seeks a category of documents much wider than that, but insofar as there are documents that bear on those questions that is not a difficulty.

HIS HONOUR:   It seems to me that is the sort of question which can be sorted out by agreement at this stage.

MR DONAGHUE:   I entirely agree with that, your Honour, and we will negotiate and insofar as there are documents of that kind that will not present a difficulty.  Similarly, if we have not already given our friends all of the documents that were before the Minister when the designation was being made, and I believe that we have, but if we have not we will.

HIS HONOUR:   All right.  So I do not need to make any orders about that.

MR DONAGHUE:   You do not need to make any orders about that.

HIS HONOUR:   Your proposal, looking at paragraph 18 of your submissions filed on 3 September, so far as (a) is concerned, you will have leave to file the amended statement of claim, although that is, for the reasons I have already flagged to Mr Robinson, not an endorsement of it as focusing in a way that will need to be focused the issues for reference to the Court.

MR DONAGHUE:   No.  Our consent to it was similarly not an endorsement of it.

HIS HONOUR:   Secondly, he has prepared a draft special case, I suppose, as a starting point so I really do not need to make an order in terms of (b), do I?

MR DONAGHUE:   No.

HIS HONOUR:   So really it is a matter of giving him the leave and then directing that you confer with a view to agreeing a special case and, if agreement is reached, to file an agreed special case on or before.

MR DONAGHUE:   We selected that date as three weeks after the receipt of the draft, which was not the date for our return of the document.  That was to allow some time for back and forth between the parties.

HIS HONOUR:   Yes, all right.  Subject to what Mr Robinson might say about this, I could set the deadline for an agreed special case for 26 September.

MR ROBINSON:   Your Honour, can I suggest 2 October.  I am still in the United States from Monday for the next three weeks, but 2 October I will have at least two days to look at the material before it is signed off on.

MR DONAGHUE:   It is going to be a problem for negotiation ‑ ‑ ‑

HIS HONOUR:   You might as well leave it for 4 October, I think.

MR ROBINSON:   Thank you, your Honour.

HIS HONOUR:   You are going to be available for some discussion, I presume, Mr Robinson?

MR ROBINSON:   Email follows me everywhere, your Honour, yes, only by email and possibly telephone.  But Mr Williams is certainly capable of dealing with that and I will be available by email.  I am going to a legal conference for three weeks, your Honour.

HIS HONOUR:   Now, in terms of bringing it back, I propose that we bring it back for further directions on 10 October at 9 o’clock.

MR ROBINSON:   Yes, your Honour, I am in the Supreme Court at 10, but I can do 9 o’clock.

HIS HONOUR:   I do not want us to be too constrained.  What about the 9th?

MR ROBINSON:   Monday or Tuesday, the 14th or 15th would be preferable, your Honour, any day that week of the 14th.

HIS HONOUR:   I think to be safe, just for my own movements, we will make it 16 October.

MR ROBINSON:   Thank you, your Honour.

HIS HONOUR:   Is that convenient?

MR DONAGHUE:   Thank you, your Honour.

HIS HONOUR:   Yes.  Now, Mr Robinson, you have heard the exchange I have had with Mr Donaghue ‑ ‑ ‑

MR DONAGHUE:   Sorry, your Honour, just before I sit down, in light of that 16th date, it might be that it would be useful to give us longer than the 4th.  At the moment there are 12 days between the agreement and the directions hearing which hopefully we will not need, but if we did need it, particularly given my friend is going to be overseas.

HIS HONOUR:   Yes.

MR ROBINSON:   We are happy with that, your Honour.

MR DONAGHUE:   It could be a week later, for example.

MR ROBINSON:   Monday, 14 October would be a good date for the agreed facts and the draft stated case to be ready.

HIS HONOUR:   All right, are you happy with that, Mr Donaghue?

MR DONAGHUE:   The 14th, your Honour?

HIS HONOUR:   Yes, and then we will come back on the 16th.  The orders I make will be as follows:

1.The plaintiff have leave to file an amended statement of claim in the form of Attachment A to his summons.

2.The parties are to confer with a view to agreeing a special case and, if agreement is able to be reached, to file an agreed special case on or before 14 October 2013.

3.The matter be listed for further directions on 16 October 2013 at 9.00 am.

I will not make a specific direction as to liberty to apply.  That is always available if you need to.

4.Costs of today in the cause.

MR DONAGHUE:   If the Court pleases.

MR ROBINSON:   If the Court pleases.

HIS HONOUR:   The Court will now adjourn.

AT 9.33 AM THE MATTER WAS ADJOURNED