Plaintiff S195/2016 v Minister for Immigration and Border Protection (Cth) & Ors

[2017] HCATrans 25

[2017] HCATrans 025

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S195 of 2016

B e t w e e n -

PLAINTIFF S195/2016

Plaintiff

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION (CTH)

First Defendant

COMMONWEALTH OF AUSTRALIA

Second Defendant

BROADSPECTRUM (AUSTRALIA) PTY LTD

Third Defendant

BELL J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON MONDAY, 13 FEBRUARY 2017, AT 3.31 PM

Copyright in the High Court of Australia

MR T. MOLOMBY, SC:   If it please the Court, I appear with MR J. WILLIAMS for the plaintiff.  (instructed by O’Brien Solicitors)

MR G.R. KENNETT, SC:   May it please the Court, I appear with MR P.D. HERZFELD for the first and second defendants.  (instructed by Australian Government Solicitor)

MR S.B. LLOYD, SC:   May it please the Court, I appear with MS H. YOUNAN for the third defendant, Broadspectrum.  (instructed by Corrs Chambers Westgarth)

HER HONOUR:   Yes, Mr Molomby.  I should tell you I have read your submissions and the affidavit of Mr O’Brien.

MR MOLOMBY:   Yes.  Your Honour, this application relies essentially on four documents exhibited to the affidavit of Mr O’Brien, being the documents PB‑1, 2, 3 and 4, and PB‑5, I should say as well.

HER HONOUR:   Well, now, I must say they are rather hard to read.

MR MOLOMBY:   I do apologise to all parties for that, your Honour.  We have had, as you might not be surprised to know, considerable difficulties in communication with the plaintiff in any event and these documents were not transmitted to us by best means technologically available - in our country anyway.

HER HONOUR:   Yes.

MR MOLOMBY:   They are photos taken by a phone and then sent.  My copies – I think I have puzzled through and can probably give your Honour assistance in making out any words if they lack clarity.

HER HONOUR:   Yes, thank you.

MR MOLOMBY:   But mine are fuzzy, I can say, but I think in the end legible.

HER HONOUR:   Yes.

MR MOLOMBY:   Your Honour, the four first documents were served upon the plaintiff last Thursday, we are instructed, subsequent to which he had a meeting at which he was given the fifth document.

HER HONOUR:   Right.

MR MOLOMBY:   One feature of those documents that your Honour may have seen is that the first three are dated 12 December last year.

HER HONOUR:   Yes.

MR MOLOMBY:   The third is dated 24 January and they were served together last Thursday.

HER HONOUR:   The documents dated 12 December were served with that dated 23 January.

MR MOLOMBY:   Your Honour, the first three documents all dated 12 December and, indeed, under the hand of the Minister, I think, each one, were served with the fourth document dated 24 January this year under another hand early last Thursday.  Subsequently on that day an interview occurred at which the fifth document, which is a sort of procedural handout, not over anybody’s signature, was given to the plaintiff.

HER HONOUR:   I see, right.

MR MOLOMBY:   The second document, PB‑2, being the removal order and perhaps the most centrally operative document provides in the third line – the Minister says, at the end of the second line:

I . . . hereby order the removal from the country –

and this is the piece I am going to:

within 7 days as of the date of service of this Order -

Now, that means that the authorities were free to keep the order in escrow for as long as they liked, but it took effect from the date of service, which is last Thursday.

HER HONOUR:   9 February.

MR MOLOMBY:   Yes, your Honour.  So that is one of the key parts of the foundation of the concern behind this application.

HER HONOUR:   Before I ascertain the attitude of the Commonwealth parties and Mr Lloyd’s client, can I just inquire about this?  The information document which is PB‑5 to Mr O’Brien’s affidavit includes information, on the second page, about “What happens if ICSA assesses that I cannot be removed to my home country” and it says:

If ICSA assesses that you can not be removed to your country of origin, you will remain in custody until you are able to obtain a visa to lawfully enter and reside in PNG or another country.

Now, as I understand the material, the plaintiff is a citizen of the Islamic Republic of Iran.

MR MOLOMBY:   Yes, your Honour.

HER HONOUR:   Pardon my ignorance, Mr Molomby, but does the Islamic Republic of Iran accept returning failed asylum seekers?

MR MOLOMBY:   Your Honour, as I understand it, no, but I have recently been provided with an affidavit on behalf of the Commonwealth defendants and perhaps it is more their role than mine to speak of it.

HER HONOUR:   Yes, I might take that ‑ ‑ ‑

MR MOLOMBY:   But I take it your Honour has obviously not, at this point, seen that affidavit?

HER HONOUR:   No.  Perhaps, Mr Molomby, it might be useful if I were to hear from the Commonwealth parties as to their attitude to your application.

MR MOLOMBY:   Quite so, your Honour.

HER HONOUR:   Yes, Mr Kennett.

MR KENNETT:   Yes.  There is a short affidavit, your Honour, which I would seek leave to file in Court.

HER HONOUR:   Yes.

MR KENNETT:   It is being affirmed in Canberra today so I do not have the original.  We will take steps to fix that.

HER HONOUR:   Yes, thank you, Mr Kennett.  Mr Molomby, you have seen this?

MR MOLOMBY:   I have, your Honour.  No criticism of anyone, but only just at the start of the hearing, and I have no objection to its ‑ ‑ ‑

HER HONOUR:   Yes, I will just read it.  I have read that, thank you, Mr Kennett.

MR KENNETT:   Your Honour will take it probably that the application is opposed.

HER HONOUR:   Yes.

MR KENNETT:   I was not going to say anything by way of submissions now.  I thought I would let my friend develop his argument.

HER HONOUR:   Indeed, yes. 

MR MOLOMBY:   There is an answer to your Honour’s question in that ‑ ‑ ‑

HER HONOUR:   It does answer the question to some degree.  I mean firstly it does appear that the Islamic Republic of Iran has a policy of not co‑operating with other countries in terms of the involuntary return of its citizens and the evidence is that there are no imminent removal arrangements at this time.

MR MOLOMBY:   Yes, your Honour.  Of course a word like “imminent” is subject very much to interpretation.  When one looks at the documents – might I just add to what I said earlier?

HER HONOUR:   Yes.

MR MOLOMBY:   We have the circumstance that the primary documents are signed on 12 December and the removal order expressed to be operative on service and requiring removal within seven days.  They are then withheld, and withheld beyond the date of the fourth document in January and served together on 9 February.  There is then an interview that takes place and in the information document the plaintiff is told he has five days in which to supply further information.  Now, that fits rather neatly with a projected removal seven days after the service of the documents as the document foreshadows.

HER HONOUR:   Removal to where?

MR MOLOMBY:   Yes - and the documents provide for removal to some third state.  The documents are not directed only to removal to Iran.  They are directed to removal to anywhere.

HER HONOUR:   Yes.

MR MOLOMBY:   In light of the affidavit it certainly seems that removal to ‑ ‑ ‑

HER HONOUR:   I am sorry to interrupt you, Mr Molomby, but can I just take you back to the second page of PB‑5?

MR MOLOMBY:   Yes.

HER HONOUR:   Under that heading “What happens if ICSA assesses that I cannot be removed to my home country” the assertion that is made is that if that assessment is made “you will remain in custody until you are able to obtain a visa to lawfully enter and reside in PNG or another country”.  The information document does seem to contemplate involuntary return to your home country or remain in detention until you obtain a lawful visa.

MR MOLOMBY:   Yes, it does.

HER HONOUR:   I am just looking at the evidence that is before me, Mr Molomby, in light of the Commonwealth parties’ opposition to the grant of the injunctive relief that you seek and that evidence, such as it is, does not point to removal other than to the home country, otherwise on the information brochure it would seem the option is to remain in detention in Papua New Guinea.

MR MOLOMBY:   Yes.

HER HONOUR:   You seek urgent interim relief.

MR MOLOMBY:   Yes, I appreciate what your Honour is putting undercuts the urgency which we say arises from the sequence of documentation and the pattern of the dates that emerges from them that I have addressed your Honour on.  Absent a change in policy – and there is no evidence really of how firm, longstanding or resistant these policies are – it would appear the plaintiff cannot go immediately to Iran.  Prospects of his going somewhere else might be being worked on behind the scenes, quite unknown to us.  Of course one would never know, but one would infer that the Papua New Guinea authorities have been well aware of the situation in relation to Iran, which one would infer has been of quite longstanding.

The holding of the documents beyond 12 December suggests they were waiting for something to happen.  The holding of documents then beyond 27 January suggests they were waiting for something to happen and the sudden service of them last week suggests that something has changed and there is now a purpose in serving them, otherwise why would they not be kept in the folder or on the shelf until some arrangement had been made.

In my submission, your Honour, one can infer that these documents having originated in that order in which they have, having been not served

and suddenly being served and the interview having happened, that something has in fact been prepared behind the scenes.

HER HONOUR:   I am not sure about the behind the scenes submission in terms of what that embraces.  I take it that this is a submission that I will draw an inference concerning the activity of the Papua New Guinea Government behind the scenes.

MR MOLOMBY:   Yes, that is what I meant, your Honour.  I meant behind their scenes, yes.

HER HONOUR:   Yes.

MR MOLOMBY:   Your Honour, I do not think I can ‑ ‑ ‑

HER HONOUR:   All right.

MR MOLOMBY:   That puts the submission neatly and I do not really think I can expand it.

HER HONOUR:   Thank you, Mr Molomby.  Mr Kennett.

MR KENNETT:   Your Honour, as to the prospects of immediate removal in the near future, your Honour has the evidence about the position, brief though it is, that Iran takes in these matters.  That has some significance in light of a provision in the PNG Migration Act which I will develop, if I may.

HER HONOUR:   Yes, thank you.

MR KENNETT:   Perhaps just to put it in context, section 7 of the Act, which starts on page 9, tells us when a person’s presence is unlawful.  The present plaintiff did have the benefit of an exemption from section 7 while his refugee application was being processed.  Seemingly he no longer has the benefit of that exemption and is now unlawfully in the country.  The next provision to note is section 12 on page 13:

The Minister may order the removal from the country of‑

(a)      a person whose presence in the country is unlawful –

That, we apprehend, is the substance of exhibit PB‑2 of Mr O’Brien’s affidavit.  Then, what I wanted to draw your Honour’s attention to is in section 13 which provides that the Minister, or an officer, can order that “a person against whom a removal order has been made be detained” – that is subsection (1) and then subsection (2) says that a person can be put on a “conveyance”.  Subsection (3), which is the one I wanted to draw attention to, says:

A person against whom a removal order has been made may be removed to any country which is under an obligation to receive him or to any country to which he consents to be removed if the government of that country agrees to receive him.

That would seem to preclude involuntary removal to anywhere other than the country of which the plaintiff is a citizen, namely Iran.  So, your Honour can discount, we would submit, suggestions that there could be removal in any short space of time to some other country.  We are left with Iran and the evidence is that the Iranian Government will not consent to his repatriation unless the plaintiff himself consents.

As to the suggestion – or the speculation and I do not think I am being unfair calling it that – that there might be a plan behind the scenes involving removal within the next seven days or so, that is contrary to the evidence in paragraph 3 of Mr Wyllie’s affidavit, and not a submission that can be put in the light of that unless there is some evidence to the contrary of that.

HER HONOUR:   Yes.

MR KENNETT:   I just wanted to note a couple of other matters about the case.  Firstly, as to the utility of the proposed injunction, it would not and could not prevent removal of the plaintiff from Papua New Guinea, although it might make it less likely to happen.  The Australian Government has no power to stop the Papua New Guinea Government administering its migration laws.

HER HONOUR:   Accepting that, to the extent that the form of the injunction that is sought would constrain the Commonwealth parties from providing any funding, there may be some practical effect.

MR KENNETT:   Yes.  I accept that.  The other matter which your Honour will need to take into account is the necessity for this relief in terms of the proceeding and in relation to protection of the status quo to prevent the proceeding from becoming otiose in some way.  The only aspect of it that we understand our friends to rely on is the prayer for habeas.

HER HONOUR:   Yes.

MR KENNETT:   The other relief appears to constitute declarations about past events and if the plaintiff can prosecute that from Papua New Guinea he can prosecute it from anywhere.

HER HONOUR:   Yes.

MR KENNETT:   The vice of this, as our friends put it, as we understand it is that he will no longer have a claim for habeas if he is removed to Iran.  That, we would submit, is something that would not weigh very heavily.  The fact is if he is currently unlawfully detained, if he is sent to Iran he will not be unlawfully detained.  It would seem that he wishes to remain in what he says is unlawful detention in order to prosecute a case about it.  Being removed from that unlawful detention would seem to be a result that he cannot very well complain about, at least not here.  So the utility of the relief in terms of the four corners of the proceeding seems to us to be very much in question and, indeed, it is hard to see what it is.  So those are the matters which we would seek to draw attention to.

HER HONOUR:   Thank you.  Mr Lloyd.

MR LLOYD:   We do not disagree with anything which my friend, Mr Kennett, has put but if I could just say two extra matters.  If the Court is considering making an order of the kind sought, we say it should not be made against my client and there is no basis for suggesting that they are involved in the removal of the plaintiff or have a function in relation to that and certainly not in relation to the funding.

So the first point, I would say, is it should - if it was to be made that it be directed to the Commonwealth defendants.  If your Honour was not sympathetic to that thought, then we would at least say that the language of it is far too broad, that a restraint on any action with regard to or participating in the removal does that mean if we point the PNG police to where the person is, is that an action in regard to.  It is too vague a concept.  If it was to be made, maybe it could be limited to “from taking action affecting the removal of the plaintiff”. 

HER HONOUR:   Yes, I see the point.

MR LLOYD:   Rather than the more nebulous idea because we will not even know what we are bound not to do and bearing in mind we might be bound under PNG law to do some of those things it puts my client in a precarious position.  May it please the Court.

HER HONOUR:   Thank you, Mr Lloyd.  Mr Molomby.

MR MOLOMBY:   Your Honour, as to what “imminence” means – and I am referring to the use of it in Mr Wyllie’s affidavit – there are perhaps different interpretations of that.  It is really difficult to see why the documents were served last week and why the interview as well took place

on the same day if something was not being prepared.  Now, it might be a little further over the horizon than the seven days away that we are speaking about.

HER HONOUR:   I have some difficulty, particularly in light of the provisions of section 13(3) of the Migration Act 1978 (PNG) which makes clear, in the case of a removal order, that the person against whom the order is made may only be removed involuntarily to a country which is under an obligation to receive him.  Now, the only evidence, as I understand it, in relation to the plaintiff is that he is a citizen of Iran.

MR MOLOMBY:   Yes, I accept that, your Honour.

HER HONOUR:   The evidence seems to be all one way that Iran has a longstanding policy of not accepting involuntary return of its citizens.  So it is a large step to ask me to draw the inference that unknown to the Australian authorities, behind the scenes something is happening in Papua New Guinea that is going to result in the removal of the plaintiff against his wishes to some third country contrary to the provisions of the PNG Act, or if it be to Iran, contrary to its longstanding policy of which the Australian Government has no notice.  There needs to be an evidentiary foundation before I would make an order in the terms or, indeed, in the suggested terms that Mr Lloyd proposes.

MR MOLOMBY:   Yes.  Well, your Honour, I cannot advance the situation in an evidentiary way any further than it is.

HER HONOUR:   Yes.  The other matter, Mr Molomby, is the submissions that Mr Kennett makes concerning preservation of the status quo.  As I understand it, that aspect of the application is based on the prayer for habeas corpus.  That has always been a controversial and difficult aspect of the relief that the plaintiff seeks in this matter.

MR MOLOMBY:   Yes, I understand that, your Honour.

HER HONOUR:   In the circumstances, Mr Molomby, I am not persuaded that it would be appropriate.

MR MOLOMBY:   Very well.  If it please the Court.

HER HONOUR:   I will just give some short ‑ ‑ ‑

MR MOLOMBY:   Yes, thank you.

HER HONOUR:   The plaintiff applies for urgent injunctive relief restraining the defendants from taking any action with regard to, or participating in, the removal of the plaintiff from Papua New Guinea to his country of origin, the Islamic Republic of Iran, or to any third party state.  The principles that govern interim injunctive relief are not in issue and are as set out in Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618, affirmed in Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57. It is unnecessary to repeat them. The grant of the relief is opposed by the defendants.

The plaintiff has commenced proceedings in the original jurisdiction of this Court by an application for an order to show cause seeking declaratory and other relief, including a writ of habeas corpus directing the defendants to bring the plaintiff before the Court.  The plaintiff is presently resident in the Manus Island Regional Processing Centre.

A special case has been referred to the Full Court seeking the determination of questions of law respecting the validity of arrangements between the Commonwealth parties and the third defendant, and the Commonwealth parties and the state of Papua New Guinea in light of the decision of the Supreme Court of Papua New Guinea in the Namah Case[1].  Suffice it, for present purposes, to say that the availability of relief in the nature of habeas corpus is controversial. 

[1] Namah v Pato [2016] PGSC 13; SC1497 (26 April 2016).

The present application is brought on in circumstances in which it would seem that on 12 December 2016 a notice was signed advising the plaintiff that his application for refugee determination under the Migration Act 1978 (PNG) had been determined and that the plaintiff had been found not to meet the relevant criteria.  A consequence of that determination was that the exemption under s 20 of the Migration Act 1978 (PNG),which permitted the plaintiff to remain in Papua New Guinea without an entry permit, ceased.  The plaintiff became an unlawful entrant in Papua New Guinea and, on 12 December 2016, the Minister for Foreign Affairs and Immigration of Papua New Guinea signed an order for the plaintiff’s removal from that country.  The order made by the Minister provided in terms for the plaintiff’s removal “within 7 days as of the date of service of this order”.

On 24 January 2017, an officer of the Papua New Guinea Immigration and Citizenship Service Authority wrote to the plaintiff advising that a meeting had been scheduled to plan the plaintiff’s departure from Papua New Guinea in the “upcoming weeks”.  The letter went on to advise that at the meeting details would be sought to enable the Authority to arrange the plaintiff’s travel.  The documents signed by the Minister on 12 December 2016 and the Authority’s letter of 24 January 2017 were served on the plaintiff on Thursday, 9 February 2017, together with an information brochure which included the following information: 

What happens if ICSA assesses that I can not be removed to my home country
You do not have a visa or a lawful right to remain in PNG.  If ICSA assesses that you can not be removed to your country of origin, you will remain in custody until you are able to obtain a visa to lawfully enter and reside in PNG or another country.

The plaintiff is a citizen of the Islamic Republic of Iran and, on the material before me, does not have the right to enter and remain in any third country. 

The Commonwealth parties oppose the relief that is sought and rely on the affidavit of Paul Anthony Wyllie, Senior Legal Officer in the Administrative Appeals Tribunal and Removals Injunctions Section within the Legal Advice and Operational Support Branch of the Department of Immigration and Border Protection.  Mr Wyllie deposes to information conveyed by Ms Marshall of the PNG Immigration and Citizenship Service Authority to the effect that there are no imminent removal arrangements for the plaintiff at this time and that until such arrangements are under way the plaintiff will continue to have the freedom of movement that he and other transferees currently enjoy in Papua New Guinea. 

Mr Wyllie further deposes to the circumstance that Iran has a longstanding policy of not co‑operating “on involuntary returns to their country”.  Mr Wyllie states that if the plaintiff were in Australia and refused to depart voluntarily, the Department would be unable to involuntarily remove him to Iran at this time, and Mr Wyllie expresses his belief that the Iranian Government’s approach to removals from Papua New Guinea would be the same.

The application is pressed on the basis that I might draw the inference from the circumstance of the service on 9 February of the Minister’s order and associated documents, and the letter concerning the appointment to discuss travel arrangements, taken with the provisions of the order which enable removal within seven days of the date of service, that there exists a real risk that the plaintiff will be removed from tomorrow, or shortly thereafter. 

That submission was made on the basis of acceptance that the evidence suggests Iran would not accept the plaintiff and the suggestion that perhaps the Papua New Guinea authorities were contemplating the plaintiff’s involuntary removal to some third country.  Section 13(3) of the Migration Act 1978 (PNG) provides that a person against whom a removal order has been made may be removed to any country which is under an obligation to receive him, or to any country to which he consents to be removed if the government of that country agrees to receive him.

In the circumstances I am not persuaded that the evidence establishes that there is a real prospect that the plaintiff may be removed from Papua New Guinea in the immediate future.  The evidence is all one way that Iran would not receive him in the circumstances and Mr Wyllie’s affidavits and the provision of the Migration Act 1978 (PNG), to which I have referred, are against accepting the submission that steps may be under way to remove the plaintiff to some unidentified third country.  This relieves me of the need to consider the Commonwealth parties and the third defendant’s opposition to the grant of the relief which focuses on the difficulties attending that aspect of the relief that is claimed in the prayer for habeas corpus.

For these reasons I decline to grant the relief sought in the summons, which is dismissed.

MR KENNETT:   Your Honour, my clients would be content for the costs of today to be defendants’ costs in the cause.

HER HONOUR:   Mr Lloyd.

MR LLOYD:   We are happy with that as well, your Honour.

HER HONOUR:   The costs of today be the defendants’ costs in the cause.  The Court will adjourn.

MR KENNETT:   Before your Honour adjourns, might I just mention the progress on the special case?

HER HONOUR:   Yes, indeed.  I think there has been some delay, has there not?

MR KENNETT:   Yes, which we were supposed to file on Friday.  There is a difference of view on an aspect of the facts within a fairly narrow compass but it is a difference of view which may be – I suspect is overtaken by recent events in relation to the plaintiff’s current status in PNG.  So the draft does require a little bit of touching up.  I am speaking only for my clients, but we do not think that is a very large task and it should be able to be done relatively quickly.

HER HONOUR:   Is there any need to make any further order?

MR KENNETT:   Make any order – I do not think so, your Honour, not today.

MR MOLOMBY:   I do not suggest so, your Honour.

HER HONOUR:   Yes, very well.  Thank you for that advice.  The Court will adjourn.

AT 4.18 PM THE MATTER WAS CONCLUDED