Ramazan Ahmadi v Minister for Immigration and Citizenship

[2011] HCATrans 183

[2011] HCATrans 183

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No  S238 of 2011

B e t w e e n -

RAMAZAN AHMADI

Plaintiff

and

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Defendant

COMMONWEALTH OF AUSTRALIA

Second Defendant

Application for an order to show cause

GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON WEDNESDAY, 13 JULY 2011, AT 9.30 AM

Copyright in the High Court of Australia

MR D.J. COLQUHOUN‑KERR, SC:   If your Honour pleases, I appear with my learned friend, MR G.J. WILLIAMS, for the plaintiff.  (instructed by Mallesons Stephen Jaques)

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

HIS HONOUR:   Yes, wait a minute – and the Commonwealth?  Two defendants now, are there not?

MR KENNETT:   I think that is right, your Honour, yes, defendants, plural.

HIS HONOUR:   Yes, Mr Kerr.

MR COLQUHOUN-KERR:   Thank you, your Honour.  Your Honour, I am assured that there is largely agreement between the parties that this is a matter appropriate to proceed in the High Court.

HIS HONOUR:   Yes, I think that is right, I think it should proceed in the High Court.

MR COLQUHOUN-KERR:   Thank you, your Honour.

HIS HONOUR:   The question will be whether it can be got ready in a fairly short time scale with a view to a hearing in the first week of October.

MR COLQUHOUN-KERR:   That would be our preference, your Honour.  We do not see that there are any issues of disputed fact.  I have had a discussion with my learned friend, Mr Kennett ‑ ‑ ‑

HIS HONOUR:   Now, let me just look at the process first.  Now, you have got a summons preceded by an application for an order to show cause.  Now, just looking at the application for the order to show cause, at the relief, can you just indicate briefly what will be your basis for the unlawful detention, the detention being unlawful?

MR COLQUHOUN-KERR:   Well, your Honour, we would be relying principally on the inconsistency between the detention in this instance and the principles established by the High Court in Plaintiff M61/2010E where the Court resolved the tension between the seeming obligation to remove immediately or issue a visa by saying that it was permissible because the Minister had commenced a process to evaluate the status of the then plaintiff in that case.  We say without the application of a process which would enable that assessment to take place the detention is not authorised because the person is not being either removed as soon as practicable or issued with a visa.  It leaves them open to indeterminate detention and they are left in a legal limbo such that their detention is unlawful, and we submit that in those circumstances the correct order is release.  We accept that a person so released might then be subject to re‑detention under proper grounds, but we submit that the unlawful detention of any person is not to be ignored by the High Court, and that this application is brought properly as a habeas application to obtain that release.

HIS HONOUR:   Now, in Al‑Kateb 219 CLR 562 Chief Justice Gleeson gave some close attention to the operation of habeas corpus. I think he seemed to contemplate not an absolute release but a release on conditions apt to render the person amenable to further detention and deportation if the circumstances arise.

MR COLQUHOUN-KERR:   Yes, and indeed that was the orders that had been made in the Federal Court in the matter before, I think it was El‑Masri, but we would be open to that possibility.  Your Honour, of course there are the other issues, the issue of indeterminate detention in Al‑Kateb is a matter which was the subject of close division in the Court.  We do not necessarily believe that it will be necessary for us to seek the overruling of that case, we think it is distinguishable on its facts, but to the extent that leave might be required to venture upon that course ‑ ‑ ‑

HIS HONOUR:   Well, you might need the leave to get the declaration as to partial invalidity of section 189, might you not; that is your second application?

MR COLQUHOUN-KERR:   Yes, that is correct, your Honour.

HIS HONOUR:   All right.

MR COLQUHOUN-KERR:   So, we would at least foreshadow that it is likely that we will need to seek leave to the extent leave is required to examine the correctness of a previous decision of the Court.

HIS HONOUR:   Yes.  Now, what you say is the indeterminacy of the present detention is a matter for which you rely on the plaintiff’s affidavit of 6 July, is that right?

MR COLQUHOUN-KERR:   Yes, and the Minister’s statements in the annexures, I think five and six to the affidavit sworn, which say that those persons on Christmas Island will not be processed in Australia.

HIS HONOUR:   Yes, this is Ms Munro’s affidavit, I think, filed 6 July.

MR COLQUHOUN-KERR:   That is correct, yes.

HIS HONOUR:   Mr Kennett, is there any factual contention that that is the present policy?

MR KENNETT:   No, your Honour, although it is something of a moveable feast at the moment and the Minister will wish in due course to put on some evidence about where the negotiations are up to, where the processes are up to, in regard to removing the class of persons within which this plaintiff comes.

HIS HONOUR:   Yes, I am just anxious that if this matter does go to the Full Court it does not go in a state of necessary cross‑examination of some deponents.  I would need to be sure about that before I put it in to the Full Court, obviously.

MR KENNETT:   Yes.  Well, your Honour, I think that is unlikely, but of course, I cannot rule out the possibility that somebody says something that my friend might wish to test.

HIS HONOUR:   No, I understand that.  Now, the next matter I wanted to raise with you is the linkage, if any, between this and matter M54 of 2011 in the Melbourne Registry.  The associate will give you copies of what is the proposed amended application in that matter, which I think Justice Hayne will be looking at next week.  Now, that has the added factor of relatives, does it not, the wife and child are involved in that?

MR KENNETT:   Yes, so it has some additional factual layers that this case does not.

HIS HONOUR:   Yes.  Now, I will adjourn in a minute to give you time to go through it, but looking at it, it seems to me that at the moment – looking at the grounds which start at page 5, 13.3 would be in common, 14.1, 17.4, 17.5, 17A, 17C, 17D and 18 – anyhow, we will come back to that.  If that is right, that would indicate the expediency of linking the two matters if Justice Hayne were of that view next week.

MR KENNETT:   Yes.

HIS HONOUR:   They could both be dealt with in the October sittings.  The next question is in what form would it go to the Full Court?  Would it simply be enough to refer the application in as an application for final relief on the affidavits, but without going through the expense of a stated case?

MR KENNETT:   Yes, your Honour, on my present understanding, yes.

HIS HONOUR:   I would think so.

MR KENNETT:   I think the factual case for the plaintiff is very simple.  The factual case for the Minister is not likely to be very much more than to say these are negotiations going on.

HIS HONOUR:   Well, yes.

MR KENNETT:   It may very well be able to be referred as it is without needing to formulate a special case.

HIS HONOUR:   All right.  Well, two things have to be done, I suppose, immediately.  The first one is the 78B notices have got to be given, and ‑ ‑ ‑

MR KENNETT:   Yes, my friend has volunteered to do that.

HIS HONOUR:   ‑ ‑ ‑ the second one – the second thing is we need some timetable for affidavits.  Have you got any agreement about that?

MR KENNETT:   We have not discussed dates, your Honour.  I think we are substantially agreed that there should be some chance for the plaintiff to put on anything further that he wants and then some chance for the Minister to put on evidence, but we have not discussed actual dates for doing it.

HIS HONOUR:   All right.  Well, how much longer would you need, Mr Kerr, for any further plaintiff’s material?

MR COLQUHOUN-KERR:   Your Honour, we reflected on this last night and we are not disposed to put on any further affidavits unless there is a problem with an agreed ‑ ‑ ‑

HIS HONOUR:   You may put something in reply?

MR COLQUHOUN-KERR:   Yes, we believe that the simple process of obtaining an agreed statement of facts also is to those issues that would assist ‑ ‑ ‑

HIS HONOUR:   Well, agreed statements of facts, I can tell you ‑ ‑ ‑

MR COLQUHOUN-KERR:   Do not necessarily assist us?

HIS HONOUR:   That is right, and tend to slow things up.

MR COLQUHOUN-KERR:   Well, a Commonwealth affidavit may well sort this matter and we may need something in reply, but we do not anticipate putting on any affidavits as presently instructed, your Honour.

HIS HONOUR:   Any further ones in‑chief.

MR COLQUHOUN-KERR:   Yes.

HIS HONOUR:   All right.  How long will the Minister need – the Commonwealth, I should say, how long will they need?

MR KENNETT:   Yes, we will be somewhat assisted by having gone through a very similar process in the Melbourne matter, and I am conscious, of course, of the fact that this is somebody in detention and should not be allowed to languish too long, so could I suggest two weeks from – if the plaintiff is not going to put anything further then perhaps two weeks from now?

HIS HONOUR:   Yes, let me – say by 5 August?

MR KENNETT:   Yes.

HIS HONOUR:   Just sit down for a minute, Mr Kennett.  How soon can the 78B notices go out?

MR COLQUHOUN-KERR:   Your Honour, my solicitors have been drafting those and we understand the position will proceed today.

HIS HONOUR:   Say by the 22nd.

MR COLQUHOUN-KERR:   Thank you, your Honour.  Perhaps, your Honour, if the date for the Commonwealth and the Minister’s affidavits of 5 August, if we might have a date for ‑ ‑ ‑

HIS HONOUR:   The 19th?

MR COLQUHOUN-KERR:   The 19th would be satisfactory, thank you.

HIS HONOUR:   This is what I propose.  The 78B notices be issued by the plaintiff’s solicitors on or before 22 July.  The defendants’ affidavits be filed and served on or before 5 August.  Any plaintiff’s affidavits in reply by 19 August.  The plaintiff’s written submissions in‑chief filed on or before 27 August – filed and served, I should say, on or before 27 August.  The defendant’s written submissions filed and served on or before 10 September.  The plaintiff’s submissions in reply on or before 17 September.  Stand the matter over before me to Tuesday, 20 September at 9.30 in Sydney to ascertain if the matter is ready for inclusion in the list for the Full Court on the week starting 4 October, and costs for today be costs of the cause. Now, I will take a short adjournment and I would be grateful if you could spend some time going through the Melbourne document just to confirm to me what the issues are or are not in common.

AT 9.48 AM SHORT ADJOURNMENT

UPON RESUMING AT 9.57 AM:

HIS HONOUR:   Yes, Mr Kerr.

MR COLQUHOUN-KERR:   Thank you, your Honour.  My learned friend, Mr Kennett, and I have discussed these matters.  We are agreed that of the various grounds that your Honour referred to all but 14.1 and 17.4 directly parallel or are directly engaged as common elements.  14.1 and 17.4 overlap but are not expressed in terms which are directly relevant because they assume particular circumstances in the nature of the person detained.

HIS HONOUR:   Yes, I see.  Yes, thank you.  There is one matter I should raise with Mr Kennett.  Now, you mentioned this was a moving feast, I think order 7 that I was proposing, namely, to stand the matter over before me to 20 September at 9.30, should have added to it liberty to apply on three days notice.  What I wanted to raise with you – there is reference in the materials to a proposed agreement between this country and the Malaysian government.  If that agreement were concluded during the currency of this timetable that would, I suppose, enter into the issues in this case, would it not?

MR KENNETT:   It may, your Honour, although it would depend on the terms of the agreement.

HIS HONOUR:   Well, exactly.

MR KENNETT:   What we understand from the press is that the agreement will not apply to people who have already arrived.

HIS HONOUR:   I see.

MR KENNETT:   Now, if that is accurate – and I do not know whether it is – if it is accurate then it will not impinge on this case, although some other negotiations might.

HIS HONOUR:   So the terms of the agreement, one way or another, I think would have to be in evidence before the Court – just bear that in mind – otherwise we do not quite know what the parameters are.

MR KENNETT:   Yes, it is obviously – and if there is not an agreement but there are negotiations then it will be a question of some delicacy as to how much can be said.

HIS HONOUR:   Yes, well, exactly, that is what I am alerting you to.

MR KENNETT:   Your Honour, there is one other perhaps formal matter that just occurred to me during the conversation with my friend before your Honour came back on to the Bench, and that is whether the – given that this is in essence a habeas corpus application whether the manager of the detention centre or the Secretary of the Department or somebody in that line of command ought to be a defendant.

HIS HONOUR:   Yes, if an order for habeas corpus was made it would be directed in the ..... would it not?

MR KENNETT:   Yes, that is not something I would want to have hold up the proceedings, but perhaps if ‑ ‑ ‑

HIS HONOUR:   No, Justice McHugh considered this in the matter of Pasini, I think.  It is easily found, anyway, the appropriate form of order for a habeas corpus.

MR KENNETT:   Yes.

HIS HONOUR:   I think it would have to be directed to the immediately detaining officer, as it were.

MR KENNETT:   Yes, I would have no difficulty with my friends having leave to amend just to add the appropriate person as a defendant.

HIS HONOUR:   Yes, I think you had better look at that, Mr Kerr; you may need to add a defendant and revise the order sought.  So we had better say:  order 1, 78B notices to be issued on or before 22 July – and add to that – and any proposed amended order to show cause be filed and served on or before that day.  So I will go through it again.

1.Section 78B notices to be issued on or before 22 July and on or before that date any proposed amended order to show cause be filed and served.

2.Defendants’ affidavits filed and served on or before 5 August.

3.Plaintiff’s affidavits in reply filed and served on or before 19 August.

4.The plaintiff’s written submissions in‑chief filed and served on or before 26 August.

5.The defendants’ written submissions filed and served on or before 9 September.

6.The plaintiff’s written submissions in reply filed and served on or before 16 September.

7.Standover before me to Tuesday, 20 September at 9.30 in Sydney but with liberty to apply on three days written notice.

8.        Costs of today be costs of the cause.

Is there anything else?

MR COLQUHOUN-KERR:   No, your Honour.

HIS HONOUR:   We will now adjourn.

AT 10.03 AM THE MATTER WAS ADJOURNED