Plaintiff S297/2013 v Minister for Immigration and Border Protection & Anor; Plaintiff M150 of 2013 by his Litigation Guardian Sister Brigid Marie Arthur v Minister for Immigration and Border Protection & Anor

[2013] HCATrans 329

[2013] HCATrans 329

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S297 of 2013

B e t w e e n -

PLAINTIFF S297/2013

Plaintiff

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Defendant

THE COMMONWEALTH OF AUSTRALIA

Second Defendant

Office of the Registry
  Melbourne  No M150 of 2013

B e t w e e n -

PLAINTIFF M150 OF 2013 BY HIS LITIGATION GUARDIAN SISTER BRIGID MARIE ARTHUR

Plaintiff

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Defendant

COMMONWEALTH OF AUSTRALIA

Second Defendant

Directions hearings

GAGELER J

TRANSCRIPT OF PROCEEDINGS

FROM SYDNEY BY VIDEO LINK TO MELBOURNE

ON FRIDAY, 20 DECEMBER 2013, AT 10.00 AM

Copyright in the High Court of Australia

____________________

MR R.M. NIALL, SC:   May it please your Honour, I appear with my learned friend, MR J.B. KING, in Plaintiff S297, and my learned friends MR C.L. LENEHAN and MS S.M. KEATING in the matter of Plaintiff M150.  (instructed by Fragomen; Allens Lawyers)

MR S.P. DONAGHUE, SC:   May it please the Court, I appear for both defendants in both matters, your Honour.  (instructed by Australian Government Solicitor)

HIS HONOUR:   Mr Niall, you have similar issues raised in two proceedings by way of different processes.

MR NIALL:   I do, your Honour.  The position is that there are two matters before the Court with very similar issues done by two slightly different processes.  Can I deal, firstly, just to set out what I wanted to say this morning by reference to Plaintiff S297?

HIS HONOUR:   Yes.

MR NIALL:   That is a matter that was commenced by writ of summons, endorsed with a statement of claim.

HIS HONOUR:   Yes.

MR NIALL:   Your Honour will see that as constituted the proceeding invoking both section 75(v) and 75(iii) sought to target two instruments, one of determination under section 85 and the second a regulation which inserts some criteria in 866.  In relation to the first one, your Honour may have been informed that the Minister revoked the section 85 determination yesterday and whether the formal mechanics of it have actually come to completion I am not in a position to inform your Honour, but it does mean that the challenge to the section 85 determination can be put relevantly to one side, if your Honour pleases.

HIS HONOUR:   There was some mention of a subpoena.  I take it that the subpoena would have gone to that issue?

MR NIALL:   It would have, your Honour.

HIS HONOUR:   Yes.

MR NIALL:   So that leaves the challenge to the regulation.  The regulation has commenced and its operative effect, as your Honour may have seen from the material, is to insert some criteria into protection visas which exclude from the grant of a section 36 visa anyone who did not arrive with a visa, anyone who has not been Immigration cleared and anyone who is a – I was going to say offshore entry person but I think it is now an unauthorised maritime arrival.

HIS HONOUR:   Yes.  Where is that definition, by the way?  Is that in the Act now?

MR NIALL:   It is in the Act, it is 5AA, and it was introduced by Act No 35 of this year with effect from a date in June ‑ 1 June, your Honour.  The plaintiff in M150 is not such a person.

HIS HONOUR:   I see.

MR NIALL:   That is a point of distinction, the materiality of which I am not in a position to address, your Honour, but it is a point of distinction because he arrived prior to the amendment to the Act and he arrived on mainland Australia as a stowaway of a boat.  As I understand it, the amendment effectively included people within the offshore entry architecture, people who arrived on mainland Australia, which had not been the position before; they were limited to people who had arrived in excised offshore places.

HIS HONOUR:   I see.  So we had better come to that plaintiff in a moment.  You are addressing me on the Sydney matter.

MR NIALL:   Yes, your Honour.   The three matters are, firstly, whether that challenge to the regulation should be remitted; secondly, what, if any, expedition might the Court afford it; and, thirdly, what steps might be taken to prepare it for hearing.  I do it in that order, your Honour, because in the event that your Honour was persuaded that the matter should remain in this Court and that it is a matter that should be given some degree of expedition, for our part we will agree a timetable that would make that possible.

HIS HONOUR:   Now, I know you want to address me on remitter and I will certainly allow you to do that.  There is with the question of the validity of the determination falling away a very limited factual compass.  It is difficult to see that any facts would be in dispute.  Do you see any facts at all being in dispute?

MR NIALL:   No, your Honour.

HIS HONOUR:   The grounds of your challenge are twofold, as I understand it.  One, there is a question of the regulation falling within the scope of the regulation‑making power; you would say that the regulation is, for a number of reasons perhaps, inconsistent with the scheme of the Act.  Then secondly, you have your legislative instruments Act, invalidity or no effect, if there is a difference between those two concepts.

MR NIALL:   That is so, your Honour, and neither of those require any facts.  I mean, they require some basic facts, none of which will be in contention, your Honour.

HIS HONOUR:   There is no question, as I take it from what you said earlier, about the circumstances of the Sydney plaintiff being squarely caught by the regulation you challenge?

MR NIALL:   That is so, your Honour.

HIS HONOUR:   So, in those circumstances, an efficient way of proceeding would be for this matter to proceed by way of demurrer.  That, of course, depends on the attitude of the defendant, in which case it could be heard rather quickly.

MR NIALL:   If your Honour pleases.  The mechanism, be it demurrer to the statement of claim or a defence which will no doubt admit a lot of the elemental facts and a question stated under section 18, would be another mechanism by which it could get quite quickly to the Full Court.

HIS HONOUR:   Yes.  Well, there is a demurrer, there is a case stated and there is a special case; I suppose all of those are possibilities.

MR NIALL:   Yes, probably in this case the case stated or a demurrer may be the most efficient in the sense that there will not be any need for a special case reciting many facts or any factual controversy.  It is always possible, your Honour, that the visa application might get refused on a ground other than the impugned criterion and the possible potential benefit, at least at this stage, of retaining two proceedings is to avoid what happened in, for example, Plaintiff S138 where on the eve of the Full Court hearing it the case went away for an independent reason.

HIS HONOUR:   Yes.

MR NIALL:   It may not arise, but it would be regrettable if that was to happen.

HIS HONOUR:   All right.  In relation to remitter – I am sorry to be jumping around – you say that the validity of the regulation is an important question affecting all pending applications for protection visas and is for that reason, given the absence or likely absence of any factual dispute, appropriate to be dealt with in this Court quickly?

MR NIALL:   We do say that, your Honour.  There may be some protection visa applications who are not caught, that is, people who have arrived on a visa but, your Honour, in our respectful submission, could proceed on the basis that the overwhelming number will be caught by the proposed 866.222.  Also more generally, your Honour, the question of the width of the power in 31(3) to prescribe criteria relevant to section 36 is itself a matter of significant importance.

HIS HONOUR:   Yes.  Is it the case that every person who would be caught by section 46A is now also affected by this regulation?

MR NIALL:   Yes, your Honour, subject to people caught by 46A might be subject to the duty under 198A – or is it AA – in which case they might be sent offshore prior to the question of whether they would qualify for a protection visa ‑ section 198AD(2).

HIS HONOUR:   Yes.

MR NIALL:   So it fits within the cohort of people caught by section 46A, some people who will be dealt with under that system for which this may not be significant, but certainly the people who were not being sent under that or being processed under that regime will all be subject to the exclusionary provision.  It is a positive criteria but it is expressed in the negative so it is effectively an exclusionary criterion in 866.

HIS HONOUR:   Yes.  So, first, we are still dealing with your Sydney matter.  In your summons for directions you seek really nothing more than a timetable for the filing of the defence or demurrer.  In light of the determination no longer being in issue you would need to amend your summons and statement of claim, would you not?

MR NIALL:   Yes, your Honour.

HIS HONOUR:   When would you be able to do that by?

MR NIALL:   By Tuesday, your Honour.

HIS HONOUR:   You would say that this would be a half day to a day matter?

MR NIALL:   Yes, your Honour.

HIS HONOUR:   Now, tell me about the Melbourne case.

MR NIALL:   The Melbourne case is factually similar in the sense that the minor arrived, found by the Refugee Review Tribunal to meet 36(2)(a) protection obligations, was on the verge of grant and this provision will prevent him from being granted a visa.  For the purpose of the resolution of the validity of the regulation we do not anticipate any different factual matters which would be relevant to that determination.

HIS HONOUR:   Are there other issues that are raised in the Melbourne case?

MR NIALL:   No, your Honour.  There was that section 85 determination but that has fallen away for the same reason.

HIS HONOUR:   Yes.  Given that you are involved in two proceedings commenced by different processes do you have a preference for the process?

MR NIALL:   I do not, your Honour.  The written statement of claim was drawn and filed before I was retained in the matter.  Mr Lloyd of Senior Counsel was involved and I think he is temporarily sojourning somewhere, your Honour.

HIS HONOUR:   Yes.

MR NIALL:   Coming back to your Honour’s question, the form of the proceeding probably does not bear ‑ given the nature of the now narrow factual matters - probably does not bear on it.

HIS HONOUR:   Well, if the challenge at its heart is a challenge to the validity of the regulation then the circumstances of an individual applicant for a visa are relevant insofar as they give that applicant standing to make that challenge.  What I am provisionally inclined to think is that the case is more appropriately framed in the Sydney proceedings to raise that core challenge.

MR NIALL:   Yes, your Honour.

HIS HONOUR:   You mentioned something about the particular circumstances of the Melbourne plaintiff I thought earlier that raised a question about – that distinguished the Melbourne plaintiff from the Sydney plaintiff.

MR NIALL:   The distinction is that he is not an unauthorised maritime arrival, so he is not excluded by reason of that clause, of 866.222, but he did not have a visa on arrival and he has not been Immigration cleared.

HIS HONOUR:   I see.  Let me just turn the provision up.

MR NIALL:   If your Honour looks at the regulation, 866.222 says:

The applicant:

(a)held a visa that was in effect –

So that was not him –

(b)was not an unauthorised maritime arrival –

He is not that, so he would satisfy that criterion, but he was not Immigration cleared on his last entry.

HIS HONOUR:   Yes.  I see.

MR NIALL:   It is conceivably possible that the question of inconsistency might give rise to some different questions if you are only dealing with someone who is A and C rather than B, which is the Melbourne plaintiff ‑ ‑ ‑

HIS HONOUR:   Yes, I see.

MR NIALL:   ‑ ‑ ‑ because that does have the potential – as we understand the rationale for the insertion of the criteria, it is highly directed to people who arrive by boat unlawfully and that might have some different rationale and connection with the scheme of the Act than something that excludes everyone who has never had a visa because section 36, in effect, would say you have single criterion protection obligations, the effect of paragraph (a) is that you must also have satisfied the criteria for another visa and, in fact, have held it, which is another narrower, significantly narrower, form of exclusion, in our submission.

HIS HONOUR:   Yes.

MR NIALL:   At least the potential for that arises.  Now, obviously, the Sydney case would seek to have them all excluded but it is not inconceivable that different questions might arise in relation to each A, B and C, and if that is true, your Honour, then the Melbourne plaintiff raises that difference quite neatly.  Perhaps the easiest way for it to be would be for the Melbourne case to proceed by way of statement of claim, filed and served by Tuesday, a similar order by the Commonwealth for a demurrer or defence and the two matters can proceed, obviously with no overlap, your Honour, but that point may be something that is exposed as being of significance in argument.

HIS HONOUR:   Very well.  Thank you, Mr Niall, I might hear from Mr Donaghue at this stage.

MR NIALL:   If your Honour pleases.

MR DONAGHUE:   Your Honour, can I address you first and briefly on the remitter question and then on the procedural and timetable questions?

HIS HONOUR:   Certainly.

MR DONAGHUE:   In respect of remitter, your Honour will have seen in our written submissions that we contend that it is open to the Court to remit the matter to the Federal Court ‑ ‑ ‑

HIS HONOUR:   Yes.

MR DONAGHUE:   ‑ ‑ ‑ but having said that, that is not a course that I am urging upon your Honour.  We agree with what Mr Niall has said, that there is – particularly having regard to the fact that the cap is no longer an issue – there appears to be no factual questions that are likely to be in dispute and the question is one of importance, so if your Honour is content to keep the matter in this Court we certainly do not oppose that course.

HIS HONOUR:   Yes.

MR DONAGHUE:   In terms of the procedural issues, as your Honour has already observed, we have these two different procedures raising essentially the same questions.  There is one difference in the questions in that the Sydney matter raises a constitutional issue near the end of the pleading, paragraph 55 I think, or thereabouts.

HIS HONOUR:   I am not sure I got to 55.

MR DONAGHUE:   Sorry, 53, your Honour, particularly 53(b).

HIS HONOUR:   Yes.

MR DONAGHUE:   So that would require a 78B notice and that issue is not raised in the Melbourne matter.

HIS HONOUR:   I see.

MR DONAGHUE:   But otherwise the legal questions seem to be the same.  We contend, and it seems to be agreed, that both proceedings need to be amended to remove all of the parts that relate to the cap so, obviously, that needs to go into the timetable.  We have provided, I hope, to the Court officer in Sydney a proposed minute of orders.  I do not know if that has made its way up to your Honour.

HIS HONOUR:   Not yet, Mr Donaghue.

MR DONAGHUE:   When eventually it does your Honour will see that it contemplates an amendment to both initiating processes by, as it happens, the same day that Mr Niall has suggested, next Tuesday.  It provides for a 78B notice in the Sydney matter but not the Melbourne matter, for the reason I have just identified.

HIS HONOUR:   Yes.

MR DONAGHUE:   There is then the question of how one progresses these questions, and the demurrer option is available in the Sydney matter but not in the Melbourne matter.  It did occur to us that one way to do it would be for us to file a defence in the Sydney matter and then for the parties simply to agree on some questions to be reserved for the consideration of the Full Court on the assumption that the defence will in that matter admit, essentially, all of the factual allegations that are raised.

HIS HONOUR:   Now, if in the Melbourne matter I were to make an order that the proceeding continue by way of statement of claim, that would open the way to ‑ ‑ ‑

MR DONAGHUE:   We could do the same thing.

HIS HONOUR:   That would open the way to a demurrer?

MR DONAGHUE:   It would.  My only hesitation about a demurrer, and in the time available we have not been able to look carefully at the question, but if your Honour looks at paragraphs 45 to 47 of the statement of claim in the Sydney matter you will see that there is something of a rolled‑up pleading of fact and law, so there is a pleading about the regulations being – the substance and effect of the regulations, one being wholly contained within the other.  I just want to reflect upon how the demurrer would intersect with the pleading of that kind because while the facts are agreed, the conclusions to be drawn from them are not.

HIS HONOUR:   Yes, a demurrer, of course, can only occur where there is a fairly tight pleading by a plaintiff.  It will be a matter for Mr Niall, but one would wonder what the argumentative pleadings in those paragraphs add to his case.

MR DONAGHUE:   Yes.  Well, given that Mr Niall will be looking again at the statement of claim it may be that the issue can be resolved in the amended document that is filed, but on the whole we have no complaint with the statement of claim, we think it is a helpful document and we think we could admit most of it but those paragraphs were the particular ones that caused me concern in relation to a demurrer procedure.

HIS HONOUR:   Yes, I see that.

MR DONAGHUE:   In substance, your Honour, we would be content if the Melbourne matter was shifted to a matter on pleadings.  We can file a defence in a timetable that we can come to in a minute, and I would expect that it would be a straightforward exercise for us then to identify the questions that would need to be determined, or the demurrer can just be filed and the matter can be determined by the Full Court on that basis.

HIS HONOUR:   Yes.  Now, I must say the constitutional point had escaped my attention.  That, of course, affects the constitution of a Full Court and possibly the timing within which a matter of this nature could be brought before the Full Court – that is perhaps something I need to raise with Mr Niall.  It was not, as I recall it, one of the grounds that he at least highlighted in his earlier submissions.

MR DONAGHUE:   No.  It may be more readily laid at the foot of others rather than Mr Niall.  Your Honour, in terms of ‑ ‑ ‑

HIS HONOUR:   There is no criticism in that, it is just something that needs to be addressed by him, I think.

MR DONAGHUE:   Indeed, your Honour.  In terms of timetable, we accept that there is some urgency attending the matter.  We do not accept that it is as urgent as our friends suggest.  Ultimately, of course, your Honour, if this Court finds that the regulation is invalid, any decisions that have been made applying that regulation will also be invalid and so the legal position of anyone who is refused a protection visa on the basis of the criteria would be protected, but that said, we are happy to accommodate the timeframe within which the Court can hear it but we would ask not to be ordered to do things in early January unless that is necessary in order to accommodate the final date that the Court can hear the matter.

So if your Honour was prepared to work back from a hearing date rather than to adopt the kind of timetable my friends are urging upon the Court we would be grateful.  Amongst other things, there are obvious difficulties in us obtaining instructions over the Christmas/New Year period because the people who we would need to speak to are unlikely to be readily available in that timeframe.

HIS HONOUR:   Now, speaking of the timeframe, you surely do not need a month to file a defence or a demurrer.

MR DONAGHUE:   Your Honour, that date could come back if the hearing date is such that it needs to come back.  There will be, as I say, many people away over that period so we would like the time if it is not going to affect the hearing date, but if it is going to – if we need to do it more quickly, we will.  I accept that it is not a complicated exercise.

HIS HONOUR:   Well, more significant I think will be the timetable that is set for the filing of written submissions.

MR DONAGHUE:   Yes, your Honour.

HIS HONOUR:   At the moment the Court’s sitting period is already allocated for February and March but there may be a possibility, if the case is to be short, of slotting it in at some point in one of those sittings, or perhaps at the beginning or the end of one of those sittings.  That is something I will need to explore.

MR DONAGHUE:   Yes, your Honour.

HIS HONOUR:   Is a February hearing feasible from your perspective?

MR DONAGHUE:   It is difficult, your Honour.  A late February hearing is probably achievable.  An early February hearing would be difficult.

HIS HONOUR:   An early March hearing would be doable?

MR DONAGHUE:   An early March hearing would be doable, yes, in my submission.

HIS HONOUR:   Very well.

MR DONAGHUE:   If the Court pleases, unless there is anything further, they are the matters I sought to address.

HIS HONOUR:   Thank you, Mr Donaghue.  Mr Niall, what about this constitutional point?

MR NIALL:   Your Honour, it emerges from a passage in the reasons for judgment of Justice Hayne in M79 relating to the extent to which the criteria for detention must be ascertainable at the commencement of the period of determination.  Your Honour indicated that one possibility would be leave to amend the statement of claim by Tuesday.

HIS HONOUR:   Yes.

MR NIALL:   If your Honour would give us that time just to reflect on the point.  It may be that it is not truly a constitutional point that underpins it.

HIS HONOUR:   Very well.

MR NIALL:   We can address that, your Honour, and we will make it absolutely clear on Tuesday.  So what I would invite your Honour to do would be to direct in the Sydney matter an amended statement of claim by Tuesday and in the Melbourne matter file a statement of claim by Tuesday,

and in the Sydney matter any notice under section 78B also on Tuesday. The question for the period of the defence ‑ in our submission, the defence will be very easily done in terms of the mechanics of it, and it is desirable that the case get prepared as quickly as possible in order for it to be available for an early hearing date and we would respectfully ask the earliest hearing date that the Court could accommodate.

The plaintiff in Sydney is in detention and the plaintiff in Melbourne is in community detention, and the longer of a period of uncertainty means that there will be more decisions made relying on the regulation which will, in our submission, be quite difficult to unpick.

HIS HONOUR:   Very well.

MR NIALL:   But if your Honour pleases, I do not think there is anything else I need to say by way of – unless your Honour ‑ ‑ ‑

HIS HONOUR:   No, thank you, Mr Niall. 

The directions I am minded to make in the Sydney matter are as follows:

1.At or before 4.00 pm on 24 December 2013, the plaintiff file an amended summons and amended statement of claim.

2.At or before 4.00 pm on 24 December 2013, the plaintiff file and serve any notice under section 78B of the Judiciary Act 1903 (Cth).

3.At or before 4.00 pm on 14 January 2014, the defendants file and serve a defence or demurrer to the amended statement of claim.

I am then minded to bring the matter back for further directions within 14 days of that date at which I would hope to be able to indicate a hearing date and set by consent a timetable for submissions.  Of course, if there is a constitutional point that remains live in at least one of the proceedings, then that may well affect the timetable.

In the Melbourne matter, I am minded to make similar directions, but to precede those directions with an order that the proceeding continue on the pleadings.

MR NIALL:   If your Honour pleases.

MR DONAGHUE:   If your Honour pleases.

HIS HONOUR:   Now, we should just make sure that 14 January is an appropriate date.  That is a Tuesday and we should attempt now to choose a date when we can come back.  I would hope that could be some time in the week commencing 20 January.  Would there be any difficulty, gentlemen, if I were to now indicate 23 January, which would be a Thursday.

MR NIALL:   Not for our part, your Honour.

MR DONAGHUE:   Nor for ours, your Honour.  That would be convenient,

HIS HONOUR:   10.00 am.

MR NIALL:   If your Honour pleases.

MR DONAGHUE:   If your Honour pleases.

HIS HONOUR:   Very well.  In matter No S297 of 2013, the orders and directions I make are as follows:

1.At or before 4.00 pm on 24 December 2013, the plaintiff file an amended summons and amended statement of claim.

2.At or before 4.00 pm on 24 December 2013, the plaintiff file and serve any notice under section 78B of the Judiciary Act 1903 (Cth).

3.At or before 4.00 pm on 14 January 2014, the defendants file and serve a defence or demurrer to the amended statement of claim.

4.The matter be listed for further directions at 10.00 am on Thursday, 23 January 2014.

In matter No M150 of 2013, the orders and directions I make are as follows:

1.The proceeding continue on pleadings.

2.At or before 4.00 pm on 24 December 2013, the plaintiff file a statement of claim.

3.At or before 4.00 pm on 14 January 2014, the defendants file and serve a defence or demurrer to the statement of claim.

4.The matter be listed for further directions at 10.00 am on Thursday, 23 January 2014.

Thank you very much.  The Court will now adjourn.

AT 10.38 AM THE MATTERS WERE ADJOURNED