Plaintiff S403/2011 v Minister for Immigration and Citizenship & Anor

[2011] HCATrans 348

[2011] HCATrans 348

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S403 of 2011

B e t w e e n -

PLAINTIFF S403/2011

Plaintiff

and

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Defendant

SECRETARY FOR DEPARTMENT OF IMMIGRATION AND CITIZENSHIP

Second Defendant

Summons

HAYNE J

TRANSCRIPT OF PROCEEDINGS

FROM MELBOURNE BY VIDEO LINK TO SYDNEY

ON MONDAY, 12 DECEMBER 2011, AT 4.04 PM

Copyright in the High Court of Australia

MR S.E.J. PRINCE:   If the Court pleases, I appear for the plaintiff.  (instructed by Parish Patience Immigration Lawyers)

MR G.R. KENNETT, SC:   If the Court pleases, I appear for the defendants.  (instructed by Australian Government Solicitor)

HIS HONOUR:   Mr Prince, your application, you are moving, I understand, on a summons of today’s date?

MR PRINCE:   Yes, thank you, your Honour.  Seeking orders that the defendants be restrained from removing the plaintiff from Australia until the determination of the proceedings or further order.  The reason the application is being made urgently, your Honour, is because, as we understand it, the plaintiff is due to be removed from Perth at 3.55 pm Perth time.  The basis of the application ‑ ‑ ‑

HIS HONOUR:   Just a moment.  You also, as I understand it, move, do you, on an affidavit?

MR PRINCE:   Yes.

HIS HONOUR:   Which one?

MR PRINCE:   There is an affidavit of Howard Douglas Murdoch filed today, your Honour, which is six paragraphs long with an annexure.  I move on that.

HIS HONOUR:   Yes.  Is there any objection to my receiving that, Mr Kennett?

MR KENNETT:   No, your Honour.

HIS HONOUR:   Yes, thank you.  I have looked briefly at that affidavit, Mr Prince.

MR PRINCE:   Yes, your Honour.  There is also an affidavit of David Lee Bitel filed in support of the application that was filed on Friday, but I do not think I need to read that to your Honour for the purposes of this application.

HIS HONOUR:   Yes.

MR PRINCE:   The essence of the point is this, your Honour.  There has been an assessment undertaken in the form of the annexure to the affidavit of Mr Murdoch which purports to be an assessment for the purposes of the guidelines issued by the Minister under section 195A of the Migration Act which deals with a final process of assessment of an applicant, or of the plaintiff in this case, against criteria of Australia’s international treaty obligations.  Can I ask your Honour to turn that document up.  It is annexure A to Mr Murdoch’s affidavit.

HIS HONOUR:   Yes, I have that.  What is the section of the Act that you mentioned?

MR PRINCE:   Section 195A, your Honour.

HIS HONOUR:   Yes, thank you.

MR PRINCE:   Your Honour will see that at page 14 of the annexure there is a reference to the – or where this minute has its place in the scheme and the assessment would be to send the matter on for consideration under the 195A for referral to the Minister.  Your Honour may recall that in matter Plaintiff M61/2010 both section 46A and section 195A were considered.  Section 46A allows the Minister to lift the bar so that offshore entry people may be allowed to apply for a protection visa and there is a process, a two‑stage process, by which one is assessed under the guidelines to determine whether one will be referred to the Minister for the exercise of a power under section 46A, that includes the independent merits review process.

There is a second process which is engaged in by the Commonwealth prior to removal to determine whether or not a person ought to be granted a visa on broadly humanitarian grounds, if I might say, exercising the discretion and the power that the Minister has under section 195A which is in very similar terms to, I think it is, section 46A and similar terms to 417 and 48B which deal with people who are inside the migration zone. 

So that there are two processes of assessment going on.  One is in relation to the initial question of whether the person is a refugee, and that has been dealt with in this case, and the plaintiff sought to appeal that to the – or seek judicial review of that in the Federal Magistrates Court and was unsuccessful.  He had failed to articulate any grounds.

He has then, prior to removal, and I think my friend would agree with me that it is an automatic process before removal in these circumstances, a person is assessed under the international treaty obligations assessment process, and that leads to, if it is successful, consideration of a grant of a visa under 195A.  So it is a similar non‑statutory determination process that one finds in relation to the independent merits review process in relation to whether a person is a refugee.  In M61 there was some consideration of that and the Court indicated that section 195A or the consideration of those matters would also attract duty to accord procedural fairness.

In this case, an assessment has been undertaken and quite a detailed minute has been prepared giving reasons why the plaintiff does not meet, according to the official - the guidelines for the international treaty obligations assessment and then review of that document became apparent, that the plaintiff was not accorded procedural fairness in that process.

Your Honour will have seen from the affidavit of my instructing solicitor, Mr Murdoch, that there was no consultation from the Department to the plaintiff prior to the determination that he failed to meet the guidelines.  There is adverse country information that is relied upon in the assessment document which was not put to the plaintiff and I have set out in my written submissions how those matters have not been put to the plaintiff.  I do not know, given the time, whether your Honour wants me to take you through those particular matters now.

HIS HONOUR:   As I understand it, the point you are presently making is that there was an assessment made without, you would have it, any opportunity being given to the plaintiff to controvert any of the conclusions ultimately reached, including, in particular, conclusions reached on the basis of particular information about Sri Lanka.  Is that right?

MR PRINCE:   That is precisely how I put it, your Honour, yes.

HIS HONOUR:   Yes.  Now, what, if any, is the relationship between the issues which it is sought to agitate in this Court in this case and the issues which are to be considered by the Full Court in three related matters fixed for hearing in February?

MR PRINCE:   There is an overlap, your Honour.  What we are dealing with in this case, as in the other cases, is the determination of whether or not humanitarian – what is broadly called humanitarian intervention should – and the discretionary powers of Minister ought to be engaged and if so, on what conditions and whether procedural fairness is a condition.  In one of those matters, Plaintiff S53, the question of whether procedural fairness is owed to a person being assessed under the guidelines under section 195A is in issue.  My friend reminds me, it may be S51, your Honour.  I may have got that reference incorrect.

HIS HONOUR:   Yes.

MR PRINCE:   But that matter is a fellow who is in community detention and there was an assessment carried out under section 195A in relation to him and there is an allegation in that case that he was denied procedural fairness in relation to that process, but it is fair to say that it was not the same process that has occurred in this case because this case is an offshore entry person and there seems to be a particular system set up here for dealing with those people.  So it is similar but it is not on all fours.

HIS HONOUR:   The two persons concerned may have come to this country by different means.  What, if any, difference do you identify from your side of the record in the legal issues that are presented in S51 and the legal issues that you would say are presented in this case?

MR PRINCE:   I do not think any different legal issues because once section 195A is in play, as it is here, the simple point is, does that carry with it a requirement to afford procedural fairness which is then binding on the Minister’s officers when they are assisting him in exercising that power and has it been breached?

HIS HONOUR:   I would understand that answer to amount to this, that if S51 succeeds, you would have it that this case must succeed, but do I overstate the position?

MR PRINCE:   It may overstate the position only to this extent, your Honour.  Ultimately, whether or not procedural fairness has been denied in a particular case is obviously going to turn on its own circumstances.  Here it is similar to S51 in the sense that no consultation occurred and if one puts it at that higher level, then there is obviously no difference, but if one then moves to the more particular aspects of the denial of procedural fairness, then it may be that there could be some difference.

HIS HONOUR:   Yes.  This matter has come on urgently.  How long a restraint do you ask for initially?

MR PRINCE:   Only the minimum necessary to have the case dealt with in an orderly way.  I really only came into the matter this morning.  I had some notice of it on Friday, but things only started in earnest this morning and I think we have gone a long way to identify the denials of procedural fairness and the bare bones of the case are there.  If it either follows on with the other matters that are going to the Full Court or it sits behind and waits for those matters to be determined, sufficient protection that would allow my client to not be denuded of the relief that he might ultimately receive from the Court is all we would ask for.

HIS HONOUR:   Yes.  It may perhaps be most useful if I heard next from Mr Kennett when he has had his opportunity to consult his solicitors.  Mr Kennett, I am anxious that I not interrupt any consultation that you are conducting.  If you wish to continue that consultation, please do.  All you have to do is tell me.

MR KENNETT:   I think I have consulted sufficiently for the moment, your Honour, thank you.

HIS HONOUR:   Very well.  What do you say I should do in this case, Mr Kennett?

MR KENNETT:   Your Honour, my instructions are to oppose any interim relief.  What I would say about that is this.  In M61, as we read the decision, some importance arose from the fact that the Minister had by a public announcement, in effect, said that he would consider exercising his non‑compellable powers in every case falling within a particular category.  This was discussed particularly at paragraphs 70 and 71.  Paragraph 70 referred to there being two steps involved:  the first to decide whether to consider exercising the power and, secondly, to decide whether to exercise it. 

Once one has passed the second step, the activities undertaken by departmental officers take on the statutory flavour or the statutory purpose or status.  We would submit that that statutory flavour has not been taken on where there has not been some kind of indication by the Minister that he will consider the exercise of the power.  In a class of cases where the Minister has not given that indication, we would say one is still in the realm of Clough v Leahy, one is still in the realm of executive power and a simple inquiry and advice. 

Now, what your Honour does not have, and if your Honour were in the room I would be able to tender material which I would say showed the contrary, but what your Honour does not have from my friend is any indication that the first of those steps in M61 has been passed either in the case of section 195A generally or, more particularly, in the case of matters considered under section 195A of the present kind.

HIS HONOUR:   Are these arguments or is this argument that you have just advanced an argument that is encompassed in the submissions that are made in the matters of S10, Kaur, S49 and S51?

MR KENNETT:   It does owe a lot to those submissions, your Honour, yes.

HIS HONOUR:   If then the argument which you have just advanced falls for consideration in those matters, what should I do in the present matter?  May I put the point rather more tendentiously.  Why should I decide this matter on the assumption that your arguments presented to but as yet undecided by the Full Court in those four matters will succeed?

MR KENNETT:   I do not think I ‑ ‑ ‑

HIS HONOUR:   And then they succeed.

MR KENNETT:   Yes.

HIS HONOUR:   I just do not know.

MR KENNETT:   I do not think I have a crisp answer to that, your Honour, to be frank.  Indeed, I do not think I have an answer that is not crisp either.

HIS HONOUR:   Can I bring you to this point, Mr Kennett, I am struck presently – and please do correct me if I am wrong – but I am struck presently by what seems to be the position that on the face of it, if the plaintiffs, particularly Plaintiff S51, were to succeed in the four matters coming on before the Full Court in February, the immediate question would be, well, why would this person not be entitled to succeed?  If that question cannot be answered, as you rather delicately put it a moment ago, quite crisply, should I not hold the status quo?

MR KENNETT:   It may well be right, probably is right, that if Plaintiff M51 succeeds on what one might call the threshold questions, leaving aside the merits of his particular judicial review grounds, it may very well be right that the present plaintiff would also cross the same threshold.  One would then need to consider the merits of his proposed judicial review grounds, the procedural fairness, which I think is confined to procedural fairness at the moment - I just wanted to say in relation to that, there are two classes of issue or material in which it is said he was denied procedural fairness in that things were not raised with him.  One is country information and as to what I would say about the country information is two things.

Firstly, this is not a process in a tribunal or akin to a tribunal let alone a process akin to a court.  It is a process which, as my friend noted, is triggered automatically, takes place within the Department and the Department refers matters to the Minister who may or may not consider them.  In those circumstances, we would resist the proposition that the plaintiff is entitled to be shown every piece of adverse country information and to have the full to-ing and fro-ing of a tribunal inquiry into that matter.

The second thing that I wanted to say about the country information is that, as set out in the minute annexed to Mr Murdoch’s affidavit, it is by and large equivocal and perhaps even generally supportive of the notion that there are very real difficulties in Sri Lanka for anyone suspected of having links with the LTTE and matters went against the plaintiff not because of a different view being taken of the country information, but because of the assessment of his own personal circumstances, namely, that he had been outside the country for so long and he had left as a child, so he just did not fit within the classes of persons who were acknowledged as facing difficulties.

The other class of material in which it is said he was denied procedural fairness is paragraphs 27 and 28 of my friend’s submissions and the point to be made there is that the causes of family separation were not in the minute described as being his fault and that was not something that was held against  him in any way.  It was simply noted that it was not something in his favour because it was a separation that had already occurred and it was not exacerbated or changed by the proposal to remove him.  So that last point, in my submission, goes nowhere.  One is left with the country information which, as I say, is equivocal and difficult to characterise as adverse.  Those are the matters I would seek raise at this stage on the ‑ ‑ ‑

HIS HONOUR:   Mr Markus should recognise that the microphone is live, so if you want to consult, I would suggest you walk away, Mr Kennett.

MR KENNETT:   Yes, your Honour. 

HIS HONOUR:   I did not hear it, but I did not want to hear it. 

MR KENNETT:   Your Honour probably has the point then.  If you look at the very last page of the annexure to the affidavit, the three options presented there for the director, depending on the view that the director takes of the content, are all what one might say entirely intradepartmental consequences.  The director can agree or disagree and can determine that the case ought to be referred to another section.  One is still a couple of steps away from actual referral to the Minister let alone consideration by him.  That is the point there. 

If your Honour is against me and inclined to make interim orders, I think that is the point at which I would seek to be able to take some instructions as to whether it should be for a very short time so that we can bring more material before you or, alternatively, to await the other cases.

HIS HONOUR:   I would be grateful, I think, Mr Kennett, if you would be good enough to take some instructions and then make your submission on it before I come to any preliminary indication of view.  Do you want me to leave the Bench for a time so that you can consult?  What would be convenient for you?

MR KENNETT:   Your Honour, if I could have five minutes, that would be ‑ ‑ ‑

HIS HONOUR:   What I might do, Mr Kennett, is leave the link alive but come back in approximately five minutes and if you need further time, perhaps you would be good enough to let my staff at the Melbourne end know that you need some more time and, within limits, you may have some further time, but I will leave the Bench for a time and give you the opportunity to consult your instructors.

MR KENNETT:   Thank you.  Perhaps just before your Honour goes, I should just say, my instructions are, as I understand them, that the plane is scheduled to leave at 5 to 7 Eastern Australian Time, which means that if the process is to be aborted, an order needs to be made some considerable time before then.  I am not proposing, by any means, to take up all of that time, but I just thought I should let your Honour know the constraint.

HIS HONOUR:   You may have until 25 minutes to 5 Eastern Standard Time, Mr Kennett.  I will come back at 25 to 5 precisely.  Thank you.  I will adjourn until then.

AT 4.28 PM SHORT ADJOURNMENT

UPON RESUMING AT 4.36 PM:

HIS HONOUR:   Yes, Mr Kennett.

MR KENNETT:   Your Honour, my instructors are still on the telephone to the Department, but having considered what fell from your Honour about the similarity between this case and the other matters which are before the Court, I do not propose to ask that a further date be fixed for this matter in the next week or two.  I am not aware of any evidence that we could file in that time that would clearly break the link, as it were.  Perhaps in the light of that, the matter should be – and on the assumption that your Honour is inclined to grant interim relief, the matter should be stood over to await the other cases, but perhaps with liberty to apply if something does come up.

HIS HONOUR:   Having had the opportunity to reflect on what has been said to me, Mr Kennett, I am minded to grant relief.  Would you wish me to give reasons fully for that conclusion?  Would that be something that you would wish me to do?

MR KENNETT:   I have a shake of the head from behind me, your Honour, so we will not trouble your Honour for reasons.

HIS HONOUR:   I am indebted to you for that.  What I would be minded to do, subject to anything that counsel may say, is to order that until the hearing and determination of the application for an order to show cause or further order the Minister and his officers and agents are restrained from removing the plaintiff from Australia.  I would be minded to further order that either party have liberty to apply on not less than 48 hours notice in writing to the opposite parties.  I would be inclined to order that the costs of the application be costs in the proceedings.  I would then be further minded to direct that this matter otherwise stand out of the list until the hearing and determination of matters S10/2011, S43/2011, S49/2010 and S50/2010 or further order.  Would counsel for either side seek to be heard about either the form or the general content of those orders?

MR PRINCE:   No, your Honour.

MR KENNETT:   Your Honour, two very minor things.  Firstly, we think it is S51, the last of the other cases.

HIS HONOUR:   Thank you.

MR KENNETT:   The other matter, your Honour, is that order 1 might be perhaps better directed at both of the respondents, only because I have an idea that the Minister – duties under section 198 fall on officers and the Minister for some reason is not an officer.  I cannot quote the section, but I am confident of that.

HIS HONOUR:   No, I understand that.  Further order the Minister, the Secretary, their officers or agents, would that encompass it sufficiently, Mr Kennett?

MR KENNETT:   Yes, I think so, your Honour, yes.

HIS HONOUR:   So order that until the hearing and determination of the application for an order to show cause or further order the Minister, the Secretary, their officers or agents are restrained from removing the plaintiff from Australia.

MR PRINCE:   If the Court pleases.

HIS HONOUR:   Yes.  Otherwise no counsel seeks to be heard about the content of the orders, is that right?

MR PRINCE:   That is correct, your Honour.

HIS HONOUR:   I think I have in each case listed the matters in order 4 as S10/2011, S43/2011 and I think S49 and S51 are also both matters of 2011, not as the Commonwealth parties’ submissions would have it, matters of 2010.  I will make that correction.  I am grateful to counsel for their assistance in dealing with the matter expeditiously.  I will adjourn the Court.

AT 4.43 PM THE MATTER WAS ADJOURNED