Te, Ex parte - Re MIMA
[2003] HCATrans 668
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Melbourne No M59 of 2003
In the matter of -
An application for Habeas Corpus, Certiorari, Declarations, a Writ of Prohibition and an Injunction against THE HONOURABLE PHILIP RUDDOCK, MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Respondent
Ex parte –
MENG KOK TE
Applicant/Prosecutor
HAYNE J
(In Chambers)
TRANSCRIPT OF PROCEEDINGS
AT MELBOURNE ON WEDNESDAY, 16 APRIL 2003, AT 9.32 AM
Copyright in the High Court of Australia
MR G. GRIFFITH, QC: If your Honour pleases, I appear with MR A.F.L. KROHN for the prosecutor. (instructed by Access Law)
MR A.L. CAVANOUGH, QC: If the Court pleases, I would seek leave to appear with my learned friend, MR C.J. HORAN, for the proposed respondent. (instructed by Australian Government Solicitor)
HIS HONOUR: Dr Griffith.
MR GRIFFITH: Your Honour, this is an application for order nisi moved on the affidavit of the prosecutor.
HIS HONOUR: Yes, I have read the affidavit. I have read the outline of argument you have supplied, Dr Griffith, so you can assume that degree of familiarity with it.
MR GRIFFITH: Could I hand to your Honour a printed copy of our outline plus an extract of the relevant sections plus a copy of the authorities ‑ ‑ ‑
HIS HONOUR: I have a bundle of authorities, Dr Griffith, I thought from you. Is it ‑ ‑ ‑
MR GRIFFITH: No, it is not from me, your Honour, I do not think ‑ Mr Krohn, my learned solicitor, must have done one, but I put one together today in order of the ones that we have on our list of cases. May I substitute them? Multi‑skilling very early this morning.
HIS HONOUR: Yes.
MR GRIFFITH: Your Honour, I did not have numbered dividers, but there are dividers between the cases. They are in order ‑ ‑ ‑
HIS HONOUR: Yes.
MR GRIFFITH: Your Honour, the particular sections relied upon, of course, are really two sections of the Act. In essence, your Honour, this is an application to your Honour to refer the order nisi into the Full Court.
HIS HONOUR: Can I understand better than I think I do at the moment some of the factual substrate and therefore what seemed to me to be some of the issues that may – they may not – arise. Can I understand what evidence is there of request for the Minister to exercise power under 253 ‑ is it (8) or (9)? It would be, I think, perhaps an exercise of power under 253(9) to release from detention?
MR GRIFFITH: Your Honour, I supposed…..proceedings that that would be a futile application. There is exhibit TE‑9, your Honour, the last paragraph on the first page.
HIS HONOUR: Now, that is March of this year, but I thought also that on one view there might even have been an earlier request, perhaps constituted by exhibit TE‑5, which takes you back to November 2002. On one view, TE‑5 might constitute an application for release, but I am not conscious, at the moment, at least, of there being any application earlier than November 2002. Now, I may be wrong.
MR GRIFFITH: Your Honour, of course, there were the court proceedings which are referred to in the affidavit filed on behalf of the respondent, your Honour, or would‑be respondent.
HIS HONOUR: Those proceedings concerned, did they not, the validity of the section 200 decision, order, characterise it as one might.
MR GRIFFITH: They are all concerned with the tension of matters in paragraph 6, your Honour, so that was litigated up.
HIS HONOUR: Yes.
MR GRIFFITH: Then the subsequent proceedings, as referred to in paragraphs 7 and 8, your Honour, were on the deportation issue. So that, your Honour, certainly the prosecutor did attempt through those legal mechanisms to obtain the result of release and ‑ ‑ ‑
HIS HONOUR: But release in the sense of freedom from ‑ ‑ ‑
MR GRIFFITH: Absolute release, yes, your Honour.
HIS HONOUR: ‑ ‑ ‑ the order for deportation.
MR GRIFFITH: Yes, and, your Honour, of course, the deportation proceedings, as referred to in paragraph 7 and 8 of that affidavit, ran on to the dismissal in this Court on 7 November.
HIS HONOUR: Yes.
MR GRIFFITH: Then, of course, your Honour, there was no legal mechanism to challenge the aspect of release as of right with no deportation order. That had been exhausted.
HIS HONOUR: But is there not a power given by 253(9) to allow release into the community pending effecting of the deportation?
MR GRIFFITH: Of course, your Honour.
HIS HONOUR: What I have in mind is the kind of proceeding that was brought in Perez v The Minister (2002) 191 ALR 619, where judicial review is sought of a decision to refuse release into the community pending effecting of deportation, Mr Perez being a Cuban national and the government of Cuba being not immediately welcoming of the suggestion that he should be deported to Cuba.
MR GRIFFITH: No, your Honour.
HIS HONOUR: Now, I understand that your immediate application is either reference in to a Full Court or a grant of order nisi. What troubles me is whether the case really is ripe at the moment, that is, whether, if we were to take either of those courses or, indeed, to take the contrary course of remitting it to the Federal Court, what would be tendered for decision would be obscured by the possible invocation of 253(9) and challenges to what was done or not done under that.
MR GRIFFITH: Your Honour, self‑evidently there is no prospect of release by agreement by pursuing that administrative route and that the first argument, if one were to pursue that route, your Honour, whether it be in the Federal Court or elsewhere, would be these issues of construction of the provisions, which we say can only be authoritatively determined at the level of this Court. We have the issue of the question of validity which we say drives the construction issue, but were the construction issue determined against us, your Honour, we would say would vitiate the provision itself as to the tension.
Of course, our primary submission is, your Honour, that the construction is plain and for similar reasons that the Full Court applied in the judgment yesterday in Al Masri and ‑ ‑ ‑
HIS HONOUR: Al Masri their Honours were at pains to say in paragraph 176 that their reasons were:
not directed to the significantly different circumstances of detention for the purposes of the deportation where the Minister retains a discretion . . . to release ‑ ‑ ‑
MR GRIFFITH: Quite so, your Honour. It is the argument, not the authority, that we refer to.
HIS HONOUR: Yes.
MR GRIFFITH: But, your Honour, underneath this is a question, which obviously will not be conceded by the Minister, as to what is the proper construction of the provision with respect to the power to detain? Is it one which is qualified by reference to only such period as is reasonable? We say self‑evidently in this case, whatever period is reasonable, it must be regarded as expired once ‑ ‑ ‑
HIS HONOUR: Well, you date it from first eligibility for parole.
MR GRIFFITH: Your Honour, we date the period as from the original commencement of the term of detention after the expiry of the parole period.
HIS HONOUR: Eligibility for parole, yes.
MR GRIFFITH: Yes, your Honour, and he was detained, of course, in Port Phillip for much that period, even after the expiry of the full sentence. He has only recently transferred to migration detention. But, your Honour, that is the entire period by reference to which we say “reasonable” must be determined.
HIS HONOUR: What, if any, significance do you say is to be attached to, first, the entirely lawful attempts of your client to challenge the validity of the deportation decision in the intervening period, coupled at the moment with an absence of evidence of request for exercise of power under 253(9)?
MR GRIFFITH: Your Honour, could I deal with the second matter. What we say is there have been two requests, as we have referred to in those two exhibits, and that is sufficient to indicate that the bar is coming down on the issue of expiry of reasonable time. But dealing with the first issue, your Honour, the question of the effect of the proceedings, of course, we were entitled to exercise our rights.
HIS HONOUR: Plainly so.
MR GRIFFITH: The exercise of those rights did not as a course entitle us to a stay on the execution of the deportation order. That would be a matter for separate application were the Minister to threaten and proceed to deport us and it may or may not be granted. But there was no advance by the Minister, your Honour, there was no application by us for a stay. Beyond that, it has still remained the case, so far as the Minister was concerned, that it was a valid deportation order which, by the Minister’s vigorous defence of the proceedings, quite plainly was intended to be carried out as soon as may be permitted by the law. So even if the Minister implicitly, your Honour, quite reasonably perhaps, took the view that it was not appropriate to proceed with the deportation, there was no inhibition on having the deportation ready to roll as soon as the judgment was handed down on 7 November by this Court.
Your Honour, the affidavit, to which we do not take objection other than refer to the fact that the proceedings referred to in paragraph 6 were not dealing with the issue of the deportation – it was the issue of detention ‑ apart from that factual correction, it is plain, implicitly, by what the affidavit says and does not say that it remains the case that virtually no steps effectively have been taken to implement this deportation and there is nothing to indicate to your Honour that ‑ ‑ ‑
HIS HONOUR: It is said to be under active consideration, or some such expression, is it not, Dr Griffith? Yes.
MR GRIFFITH: Your Honour, that is more a 10 Downing Street response than a legal response.
HIS HONOUR: It is a very uncharitable view, Dr Griffith.
MR GRIFFITH: Yes. Your Honour, bear in mind something such as the approach of the English courts, that you have three days to explain yourself or otherwise it is too long to continue. Underneath it, your Honour, we say there is an unlawful detention of this person which continues today and should not continue a day earlier. Now, I do not go into the ‑ ‑ ‑
HIS HONOUR: Can I just explore that proposition because it lies at the root of some of the difficulties at the moment that I am grappling with. Insofar as you seek habeas or orders, the effect of which would see immediate release, the contention seems in part to be – and this is not the whole of the argument that you seek to advance – detention is now unlawful. An immediate riposte seemed to be look at 253 and 253 including (8) and (9). Does it matter – and, if so, why does it matter – that there is a discretion given by 253(9)? You, as I understand it, say that is a discretion that could be, in the circumstances of this case, exercised only one way.
MR GRIFFITH: And, your Honour, if I may say so, intended to be exercised with respect to lawful detention. That is what it is intended to attach to.
HIS HONOUR: Yes. The detention you say now being unlawful because?
MR GRIFFITH: Your Honour, we say because of the expiry, on any view, of a reasonable time to implement the deportation order and we say, in effect, firstly, subsection (8) and (9) does not attach to that, because that is intended to enable discretionary power to be exercised on lawful detention. If there is unlawful detention, it is not a matter for the exercise of a discretion. There is an entitlement as of right to vindicate us, for example, on the basis stated by this Court in Lim, for a person to obtain their freedom at once, today.
Now, your Honour, we are not so ambitious to say we ask for an order today or, after experiencing Cabal, an interim order pending the final determination of the issue of lawfulness and unlawfulness, but our position is that on the material we can establish, and on the basis of our arguments it should be accepted authoritatively when determined, that the detention now is unlawful. That does not mean that the deportation cannot take place. It is an issue of the detention. The issue of detention is quite separate from deportation and the Act makes it so, your Honour. It is possible to have a deportation order with no detention at all. It is administrative. So that we are not walking, your Honour, as we would have sought to in the earlier proceedings, from the deportation. We are walking from the detention.
We say that we have a strong case to establish, so long as the construction reflective of the approach of the Full Court in Al Masri, but accepting they were not determining the issue – but it is the argument that we make, your Honour, not the authority of that decision. We say, your Honour, we have an almost unanswerable case on the basis of the appropriate construction, supported, we say, by a fallback argument of constitutional validity were that construction not correct, but we would say that issue of constitutional validity informing – and for the various other factors which are referred to very comprehensively in the Full Court’s judgment, your Honour, all militating to the same result, that there is not an unlimited power to detain. That was the Solicitor‑General’s submission as was cited in the judgment, your Honour. It is put at that level. We say all the indicia point to the other way.
Even the Supreme Court of the United States eventually, surprisingly only by majority, your Honour, conceded that if a non‑citizen commits a felony and is ordered to be imprisoned pending deportation, that person cannot be detained for the rest of their life if unable to be deported absent a particular Act of Congress. It is surprising that position operated in the United States for practically a decade before it was corrected at the Supreme Court. But we say, your Honour, this is the essence of the contention here.
We do not have to rely upon the constitutional aspects relied upon by the majority of the Supreme Court, but it is put that it is an absolute entitlement now to say that our detention as of today plainly is unlawful and that it is not appropriate to say, “Yes, but you could apply under subsection (8) or (9) for the exercise of the Minister’s discretion”. Your Honour, there is nothing to attach to if we are right in our contention. Either we are right or we are wrong. There is no, as far as we can see, disputed issue of fact. That suffices for there to be, one would hope, your Honour, some redetermination so that our period of detention does not continue, but at the very least, your Honour, at an early stage an authoritative disposition of that issue.
The difficulty is, if it is remitted to a single judge of the Federal Court, firstly, we say that judge will not have authoritative guidance as to what the position is. Self‑evidently, your Honour, the matter will be appealed up to this Court over the next year or two and it is difficult to contemplate on the present approach of this Court to the issue of interim orders for release with respect to deportation, or I would say extradition matters, your Honour, that we could assume that we would be able to obtain interim relief from that detention.
HIS HONOUR: As things stand at the moment, Dr Griffith, I would have thought it unlikely that a reference in to a Full Court could be heard this side of August.
MR GRIFFITH: It is the best we can do, your Honour, if that is the case.
HIS HONOUR: So long as there is no misunderstanding between us about the timescale involved, whereas I would have thought that it may – it may not – be possible for you to get an application on for hearing in the Federal Court much quicker than that.
MR GRIFFITH: Your Honour, that may be so.
HIS HONOUR: Those are matters that I simply put on the table.
MR GRIFFITH: Your Honour, were to be successful before a single judge, we would still have the prospect of two levels of appeal and the issue, your Honour, of whether there would be any prospect of us obtaining release from detention while those matters were being litigated to the level of the High Court. We do wish for finality but it seems to us it is a one‑stop shopping for that.
HIS HONOUR: The Court has been called many things, Dr Griffith, but not that.
MR GRIFFITH: Your Honour, once this Court speaks, or until the next time, that determines the matter. But were it referred in, we would make such representations as we could to see whether or not we could obtain release on the assumption that the respondent asserts that it is lawful but in the circumstances appropriate. Your Honour, we would hope that the fact of the reference in would give a credibility to our position that may assist in that argument, but it does seem difficult for us to contemplate approaching you or another justice of the Federal Court to obtain an interim order. That is why we wish for finality, but it is predicated upon the assertion that we say we have demonstrated on the basis of the argument that our present detention is unlawful.
Certainly, the affidavit, your Honour, by what it does not say in response, reinforces our view that the time has passed and inasmuch as there are vague references to future aspirations, we say they could not possibly suffice to say that there should be more time allowed. If a reasonable time has elapsed, your Honour, that is the end of it.
HIS HONOUR: Could I, before I hear what Mr Cavanough says, take you to the draft order nisi, which is exhibit 13.
MR GRIFFITH: Yes, your Honour. On that draft – I did not participate in that process, your Honour. We would prefer to have a reference in.
HIS HONOUR: But if that is to be done, I would want to be certain what exactly is the form of application that is to be referred in.
MR GRIFFITH: We were hoping to have such a draft, your Honour, but it was not possible in the limited time during last night.
HIS HONOUR: Then should I regard TE‑13 as being likely to be superseded by future drafts? Can I say this to you, Dr Griffith, I will not make an order for reference in until I see the last and complete version of what it is you want referred in.
MR GRIFFITH: Your Honour, I am sorry we were not able to complete that task, but the ground is that exposed by our submissions, which is limited to the issues of construction and ‑ ‑ ‑
HIS HONOUR: And that detention is now unlawful by reason of effluxion of time?
MR GRIFFITH: Yes, your Honour, and we would rely upon the self‑evident fact that five years have passed, but it might be that, following the approach of the English courts, even a few weeks is sufficient.
HIS HONOUR: Now, when would you expect to be in a position to provide a final version of the process that you would ask to be referred in?
MR GRIFFITH: We could certainly do it by after lunch, your Honour.
HIS HONOUR: Yes. Perhaps if I hear from Mr Cavanough and then see what course we need take, Dr Griffith. Mr Cavanough, what do you say I should do?
MR CAVANOUGH: I say that your Honour should dismiss the application. Can I hand up our outline.
HIS HONOUR: Yes. Has Dr Griffith seen this?
MR GRIFFITH: No, he has not, your Honour.
MR CAVANOUGH: Well, it has only just been prepared, I am afraid.
HIS HONOUR: Yes. Let me take a moment to look at it.
MR CAVANOUGH: If your Honour pleases.
HIS HONOUR: Yes, I have looked at that, Mr Cavanough.
MR CAVANOUGH: If your Honour pleases. My learned friend said there did not appear to be any factual disputes. We would contest that, your Honour. There plainly are. We say there is ‑ ‑ ‑
HIS HONOUR: If the matter were to go further, whether by reference in, remitter or whatever process were adopted, would the Minister wish to file any further material bearing on the facts of the case?
MR CAVANOUGH: Yes, quite likely. We have had to prepare this in a hurry. We got the last affidavits yesterday from the other side. We have necessarily prepared our material under difficulties and very quickly and there is every chance there would be more material required. In any event, the matters are happening as we speak. The situation changes daily and, indeed, the relevant time is the time at which the Court would finally sit to determine the matter.
Depending on what the test is, I suppose, but if the test is as the Federal Court has consistently held, that at most the question is whether at the time of decision there was a reasonable prospect of deportation within the foreseeable future, then the facts are changing on a daily basis. But, in any event, even as to the past, more needs to be said, by way of detail at least, about the various attempts that have been made by the Department to obtain co‑operation from the applicant which we say the applicant has refused to give.
Take an example. The applicant, in the form that has been submitted to him more than once, when asked in what part of Cambodia did he dwell, says Cambodia, even though in his affidavit he at least says Phnom Penh. Now, there are other striking examples in that document of matters that the applicant must know, but which he does not provide any assistance with. It has been said on numerous occasions in the cases and, indeed, as recently as yesterday in the Full Court that no assistance will be granted by the courts to a person who seeks to frustrate the processes for returning them to their country.
HIS HONOUR: This may perhaps focus our attention upon what I would understand to be the core of the case which it is sought to raise – indeed, to be the limits of the case which it is sought to raise – namely that without more it is now established that detention is unlawful regardless of whether there has been application under 253(9), regardless of whether, even if there has been such application, the decision under 253(9) can be shown to be flawed. Now, a possible point of view is that the battleground joined is whether, on its proper construction, 253 limits the power to detain to detention for a reasonable time irrespective of whether application is made for release into the community under 253(9). Now, that may be a good point; it may be a bad point.
MR CAVANOUGH: But even if it were a good point, your Honour, at best for the applicant he would establish a principle that detention is only authorised for a reasonable period. What is reasonable, in turn, will depend on the facts and here the relevant facts must include the attitude and extent of co‑operation of the applicant.
HIS HONOUR: Yes.
MR CAVANOUGH: If the applicant deliberately puts it beyond the power of the respondent to move expeditiously because of the international situation and the requirements of the relevant overseas country, it is highly unlikely that the applicant is going to be able to show that any delay thereby induced or attributable thereto is an unreasonable delay, and that is this case. There are many other matters that we might say as well, and in relation to even the legal proposition. Indeed, we say there is no authority whatever in support of the applicant’s argument and all the authorities are to the contrary – all of the Federal Court authorities are exactly to the contrary ‑ so it would be a very novel argument. If it met with success, it would be the first time that the argument had met with success in this country. Moreover, in relation ‑ ‑ ‑
HIS HONOUR: But does it come to this, Mr Cavanough, that in answer to the proposition that detention is now unlawful because a reasonable time has elapsed, you wish to put on material which you say goes to judging the reasonableness of the time that has elapsed?
MR CAVANOUGH: And that is done, and has been done, in these Federal Court cases. We have already put some on.
HIS HONOUR: Yes, I understand that, but I am just trying to understand the nub of the point that you want to make. Now, if that is so, what do you say follows from it? Let it be assumed I am for the moment – I understand you wish to submit to the contrary – that I did not decide to dismiss the matter out of hand, as you say is the appropriate course – we will come back to whether that is an appropriate course. On that assumption, what do you say I should do?
MR CAVANOUGH: I say, your Honour, that the most appropriate course would be to remit the matter to the Federal Court, which has full jurisdiction to entertain it ‑ ‑ ‑
HIS HONOUR: Now, does it?
MR CAVANOUGH: In my respectful submission, it does.
HIS HONOUR: Is this a privative clause decision?
MR CAVANOUGH: Well, when one says “this”, insofar as it is a complaint as to the legality of the current detention, it is not a privative clause decision matter.
HIS HONOUR: Yes.
MR CAVANOUGH: At most, if the applicant wishes to attack the exercise or non‑exercise of the discretion under section 253, that would become a privative clause matter, but at the moment it is not at all clear that that is what the applicant is seeking to do.
HIS HONOUR: And if it were a privative clause matter, then the question would become, would it not, whether jurisdictional error was asserted? If it were, it would fall outside “privative clause decision”, would it not?
MR CAVANOUGH: It would, but, in any event, the principal point seems to be one that would not be affected by the privative clause complication.
HIS HONOUR: Right. Yes.
MR CAVANOUGH: My learned friend refers to some observations of Justice Beaumont in Ruddock v Vadarlis about habeas corpus, but all his Honour was saying in that case was that, strictly speaking, the Federal Court may not have the power to issue habeas corpus as such but it can make an order in the nature of habeas corpus, and the only ‑ ‑ ‑
HIS HONOUR: Whether or not that is so, if the matter were remitted from this Court, would the Federal Court have the jurisdiction that this Court has?
MR CAVANOUGH: In my respectful submission, it would.
HIS HONOUR: And does this Court have jurisdiction to issue habeas?
MR CAVANOUGH: Yes, we say it does, although I understand ‑ ‑ ‑
HIS HONOUR: Would it not follow therefore that if there were a remitter the Federal Court would have, relevantly, the jurisdiction of this Court to issue habeas?
MR CAVANOUGH: Yes, despite whatever may have been said in Ruddock v Vadarlis. Moreover, as to my learned friend’s point about delay, if the applicant were able to succeed before a single judge of the Federal Court, he would no doubt be released, unless the Minister obtained the extraordinary remedy of a stay of that order pending an appeal to the Full Court. It would seem to be far more appropriate, if there really is merit in the applicant’s position, that he try his hand before a judge who can look at the facts and look at them soon. It is very unlikely that this matter can be put into a shape that the Full Court of this Court could happily deal with.
HIS HONOUR: If I were to consider requiring return of the matter before a Full Court, what material as at present advised would you have in mind that the Minister would wish to file? What subject matters would that material be likely to cover? I ask you the question, not for the purpose of confining you to the list you now give, but to have an understanding of what your present point of view would be.
MR CAVANOUGH: Yes. Well, I note my learned friend seeks to complain about detention from the time of the parole period commencing. We would then need to go back to that period, although we would not concede that it is relevant, given the intermediate litigation – but as a matter of caution we would have to go back to that period. We would have to have a history of what was done as between the parties over that period. We would have to demonstrate that there was no request made by the applicant for release over that period.
As I understand our instructions, we would have to detail what would have been involved in making provisional arrangements over that period. If that is the complaint that is now made, we should have been ready to roll at the conclusion of each and every one of these five or six pieces of legislation.
We would need some evidence about what is and has been required over the relevant period as between Australia and Cambodia for the return of persons between Australia and Cambodia. There is, I gather, some confidentiality attached to the memorandum of understanding. We would have to have some evidence as to when that was arrived at and how long it has been in force. I, myself, am not sure about that just at the moment, but I gather it is in force at the moment.
We would then have to have some evidence about what could be expected, doing the very best we could, about how long these processes would take, how likely it is that the Cambodians would need more than they have at the moment by way of identifying material, and all of the matters dealing with the extent to which the applicant has not co‑operated or co‑operated with our endeavours to return him.
HIS HONOUR: How long would you anticipate would be required to prepare that material, not at the Department’s leisure, but as a matter of urgency?
MR CAVANOUGH: I honestly do not know as I stand here, your Honour.
HIS HONOUR: Well, you will need to be in a position to tell me that before we finally decide what is to happen in this matter, Mr Cavanough. As I say, the time I am interested in is not how long the Department would wish to prepare that material, but how soon the Department could prepare the material upon which it would wish to rely.
MR CAVANOUGH: Yes, I understand, your Honour. I can seek instructions.
HIS HONOUR: Yes, and plainly you would need some instructions about that. Well, then can I come back to where you would have wished me to begin, Mr Cavanough. Is there anything you want to say to me about why I should dispose of this matter summarily?
MR CAVANOUGH: Yes. We would rely on, indeed, what the Full Court itself said in Al Masri as to the ‑ ‑ ‑
HIS HONOUR: Well, correct me if I am wrong. My reading of Al Masri was that the Full Court was at pains to say they were not saying anything about the section 200 stream of deportation decisions.
MR CAVANOUGH: And, indeed, they therefore, I suppose, were certainly casting no doubt on the correctness of Luu and of Vo, which are two other Full Court decisions ‑ ‑ ‑
HIS HONOUR: Their Honours were saying nothing about those subjects. You are right to say therefore they were casting no doubt upon them, but they were saying nothing about them. Yes.
MR CAVANOUGH: If anything, they were supportive, in my respectful submission, of what was held in those cases, pointing out that there is a significant difference between 196 and 198, which were the relevant provisions under consideration in Al Masri, on the one hand, and 200, 201, 206 and 253, which were the relevant provisions in the other line of cases, pointing out the very great relevance of the ability of any applicant concerned about their ongoing detention to seek release from the Minister and to have a court supervise the ministerial decision‑making in that regard.
HIS HONOUR: Do you say that in this case there has been any ministerial decision‑making under 253(8) or (9)?
MR CAVANOUGH: No. I have some instructions just received that there is presently being put together a submission to the Minister dealing with the submission that has been received in March from the applicant, which is really the first real request, or anything that could really be categorised as a request, for the Minister to exercise power under 253. It does not mention 253 but it has been presumably now accepted that that is what it ought to be read as asking for, among other things.
HIS HONOUR: As I say, one possible point of view is that the first request dates back to November last year, but be that as it may.
MR CAVANOUGH: But the first request is in terms conditional. It is really premised on the Department accepting that there is no prospect of the applicant being released in the foreseeable future, which is by no means what the Department would accept and ‑ ‑ ‑
HIS HONOUR: But do you say therefore that at the moment there has been no decision under 253(9)?
MR CAVANOUGH: That is right, but there will be one shortly – or there will be one as soon as one can be done, I trust.
HIS HONOUR: The sting is in the tail, Mr Cavanough. Yes, the words, “I trust”.
MR CAVANOUGH: Well, I can ‑ ‑ ‑
HIS HONOUR: I understand your position, Mr Cavanough. I should not respond, should I?
MR CAVANOUGH: In any event, I cannot speak for the Minister personally.
HIS HONOUR: I understand that. Yes.
MR CAVANOUGH: So we say the appropriate place for this is, and always has been, the Federal Court if there is to be an application and that is the appropriate way to deal with it.
HIS HONOUR: Yes. Is there anything else, Mr Cavanough?
MR CAVANOUGH: No, your Honour.
HIS HONOUR: Dr Griffith, just before you embark on your reply, because this may affect the way in which your reply is moulded, I am troubled by the fact that the final version of your basic document is not yet available.
MR GRIFFITH: Can I disarm your Honour on that and say we could even do it in 10 minutes, just limit it to the question that the reasonable time has expired.
HIS HONOUR: Well, given the importance of it, I do not wish to put you under constraints that are unreasonable about its preparation, Dr Griffith.
MR GRIFFITH: No, your Honour.
HIS HONOUR: It is far better that enough time is taken to get it right.
MR GRIFFITH: Well, I am bound by what I say, your Honour. We will confine it to the issue of time expired which, on its face, your Honour, would make irrelevant evidence about what might happen in the reasonable future.
HIS HONOUR: Again, can I expose where I am at so that you may mould what you say to it. One, I want to see the final version of your draft order nisi; two, I would want to have some information from the Minister’s end about when material can be put on, because the third step would be that, pending the filing of that material, I have a reluctance to refer the matter in to the Full Court for fear of there being a lively controversy of fact and it would plainly, of course, be wrong to put you in the position where you are barred from challenging some fact that is put against you.
MR GRIFFITH: Although, your Honour, that is probably unlikely, because we say it does not matter what the facts are, the time has expired.
HIS HONOUR: I understand that, but where that begins to point to is that the matter may, in any event, have to stand over until I have seen the facts.
MR GRIFFITH: Your Honour, I could accept that, but given your Honour indicated that perhaps August or so would be the earliest date, if there were a marker in for that as a possibility so long as this matter is contained, otherwise then the alternative…..there is no time lost, your Honour, so we could accept that.
HIS HONOUR: Well, what is lost is the opportunity to start the ball rolling at once in the Federal Court. If I defer it, pending filing of material in answer by the Minister to see whether there is a controversy of fact, it would not be on terms – and I would not want there to be any misunderstanding about it – it would not be on terms that remitter to a Full Court is as of course.
MR GRIFFITH: I follow that, your Honour, but were that to happen, because of the difficulty about the affidavit, the effect of the material brought forward would have got the ball rolling procedurally anyway, that your Honour’s order probably is the strongest way to get the ball moving.
HIS HONOUR: So long, at the end of the day, Dr Griffith, as the applicant does not find himself in a position where the course adopted disappoints the immediate expectation and he has lost time on that account.
MR GRIFFITH: Your Honour, I accept that there is no legitimate expectation, just a legitimate hope that we may get on this way. We will do our best to ensure there is no factual controversy, whatever the facts, and we would say that the facts should be confined to matters that have already occurred because reasonable prospects on our argument is not an issue. We say the time has expired.
HIS HONOUR: Now, Dr Griffith, could you, in the course of today, prepare the final version of the order nisi upon which you would be wishing for an order referring in to the Full Court?
MR GRIFFITH: Yes, your Honour. I have indicated that we can have that ready by after lunch.
HIS HONOUR: If I were to sit again at, say, 2.15 – and by then I would hope that Mr Cavanough may be in a position to inform me about how long the Department would take to prepare material which it would seek to file in answer to that order nisi – we would then be able to perhaps more accurately chart the course that this matter should take.
MR GRIFFITH: That is so, your Honour. My learned friend did refer to the fact that there is now a brief being put together for the Minister to consider the application under 253. Your Honour, there is nothing whatsoever to stop the Minister releasing us under that or any other discretion of the Minister at any time. If he does, we will accept that, but that does not affect the validity of our point that our detention, day by day, is now presently unlawful.
HIS HONOUR: Yes. Then if I were to stand the matter over until 2.15, is there anything that you think that we should usefully discuss in the meantime, Dr Griffith, or is it better simply to stand over until 2.15?
MR GRIFFITH: Well, if my learned friend has instructions, your Honour, for the time for his material, that would seem to be all that has to be attended to.
HIS HONOUR: In order that he might obtain sufficiently informed instructions, would it be possible, do you think, for him to have a copy of the draft order nisi by, say, midday, or is that ‑ ‑ ‑
MR GRIFFITH: Yes, your Honour, we will do that.
HIS HONOUR: If you could be good enough to supply him with that by noon and if we were to sit again at 2.15 and see where we get to then.
MR GRIFFITH: If your Honour pleases.
HIS HONOUR: Yes. Mr Cavanough?
MR CAVANOUGH: Obviously, we will do our very best to have the fullest information we can for the Court at 2.15. I have no idea how the relevant people are placed, whether they are available or not, but we will do our best.
HIS HONOUR: I understand that.
MR CAVANOUGH: But, your Honour, there is one other thing I perhaps ought to say, and that is that we would anticipate at the moment cross‑examining the applicant as to the past, that is, as to the matters that
my learned friend says found his present right to be released, and perhaps the applicant might be asked to say whether they would anticipate cross‑examining our witnesses too, they having had some indication of the sorts of things we would say from the affidavit already filed.
HIS HONOUR: Yes. These are matters that we would perhaps better discuss when we have a final version of the applicant’s draft order nisi, Mr Cavanough. Yes, 2.15.
AT 10.21 AM THE MATTER WAS ADJOURNED
UNTIL LATER THE SAME DAY
UPON RESUMING AT 2.16 PM:
HIS HONOUR: Dr Griffith.
MR GRIFFITH: Yes, I have a draft, your Honour. Could I make a correction? It was intended to delete paragraph (d) of the relief. I am sorry that that did not get struck out.
HIS HONOUR: Yes, if I rule that through. Yes.
MR GRIFFITH: Basically, your Honour, it is seeking habeas corpus, but just expressing it in a generic way.
HIS HONOUR: Yes.
MR GRIFFITH: We have attempted to be direct and unqualified in our ground.
HIS HONOUR: Yes.
MR GRIFFITH: Your Honour, I have had a discussion with my learned friend and we have agreed on 8 May. There are a few intervening holidays, your Honour.
HIS HONOUR: The 8th is in the middle of the Canberra sittings. Now, unless the parties are to be required to traipse up to Canberra, which I am very hesitant about doing, I could ‑ ‑ ‑
MR GRIFFITH: That is just for filing, your Honour, but ‑ ‑ ‑
HIS HONOUR: For filing?
MR GRIFFITH: Yes.
HIS HONOUR: Yes.
MR GRIFFITH: Yes, filing, your Honour, but there is a motion day on the 9th. I do not know whether your Honour is in Melbourne on that day.
HIS HONOUR: I could, I think, better do it on Monday the 12th at 9.30 or some time of that kind. Would that be convenient?
MR GRIFFITH: Your Honour, I have just remembered I am going to be in London for a few days, but I suppose I am dispensable on that, your Honour.
HIS HONOUR: Look, I am largely, in this respect, in your hands, Dr Griffith, in that it is your client’s application.
MR GRIFFITH: Yes.
HIS HONOUR: I could give you either the 5th or the 12th at 9.30. If the parties need until the 8th, then ‑ ‑ ‑
MR GRIFFITH: Your Honour, I think I am dispensable. It is better in the interests of my client for it to come up as soon as possible, which is unfortunate, because I will not be here.
HIS HONOUR: Yes. Thus, if today I were to give directions, one, that the Minister file and serve any material on which he seeks to rely on or before 4.00 pm 8 May 2003 – is it intended, Dr Griffith, that your side should have a time for reply to that material?
MR GRIFFITH: Your Honour, we do not expect that we will need to do anything with it because our case depends upon the effluxion of time and we do not mind much what is said happened. Even if it is material about our alleged co‑operation, we will probably wear that and say it does not make any difference.
HIS HONOUR: Yes. If I were then to order, as the second order, that subject to any contrary direction adjourn the further hearing of the application to 9.30 am on 12 May in Melbourne, reserving costs and certify, is there anything that you would need from your side other than those directions in ‑ ‑ ‑
MR GRIFFITH: Your Honour, my learned friend has indicated that it will also effect service electronically so I can review the material wherever I am. So with that co‑operation, your Honour, there is nothing else we would require.
HIS HONOUR: Yes. Just before you sit down, Dr Griffith, on the return on 12 May if, as seems likely, you are not here, I will be assisted if whoever then appears on your side is in a position to answer then the question whether the facts asserted by the Minister, or on his behalf, in the material filed are facts that are accepted by your side for the purposes of the determination of the proceeding which you seek to institute.
MR GRIFFITH: Yes, your Honour. There is a real incentive for us to do our best and say yes to that.
HIS HONOUR: I understand that, but I thought that better I give notice of that question now so that whoever then appears is ‑ ‑ ‑
MR GRIFFITH: Yes. It is a bit like the target in mediation, your Honour, if you get a result that you can live with rather than the one that you prefer, but we will seek to be non‑contentious if we were in pain.
HIS HONOUR: Yes.
MR GRIFFITH: It is better than the alternative.
HIS HONOUR: Yes. Mr Cavanough, is there anything that you would seek other than the directions I have foreshadowed?
MR CAVANOUGH: Nothing further at this stage, your Honour.
HIS HONOUR: Yes. Dr Griffith, could you be good enough to arrange for your solicitor to file by close of business tomorrow a further copy of the draft amended ‑ ‑ ‑
MR GRIFFITH: Yes, your Honour. I am sorry about that lack of deletion, your Honour. I just picked it up as your Honour came in.
HIS HONOUR: No matter, but if we can have one on the file by close of business tomorrow, that will keep the records straight.
MR GRIFFITH: We will seek to ingratiate ourselves by doing it today, your Honour.
HIS HONOUR: Dr Griffith, it takes much more than that to ingratiate parties with me.
MR GRIFFITH: Your Honour, my present secretary did not ingratiate herself when she was faxing the draft orders, so I have to do my best.
MR CAVANOUGH: Perhaps just one thing just for clarification.
HIS HONOUR: Yes, Mr Cavanough.
MR CAVANOUGH: At the moment, in the prayer for relief in paragraphs (c) and (e) there is a reference to the decision, if you like, or the decision to detain or the decision to keep the applicant in immigration detention. I take it that it is not asserted that there has, in fact, been any such decision, that that is to be taken as a more generic sort of a reference?
HIS HONOUR: Rather than conduct the debate immediately, Mr Cavanough, can I simply invite both sides to recall that there is a telephone and that there are lifts in counsels’ chambers which do enable counsel to speak one to another about these matters and if that is of assistance, so be it.
MR CAVANOUGH: If your Honour pleases.
HIS HONOUR: Then there will be orders and directions as follows:
(1)The Minister is to file and serve any material on which he seeks to rely in answer to the application on or before 4.00 pm 8 May 2003;
(2)Subject to any contrary direction, I adjourn the further hearing of the application to 9.30 am on 12 May 2003 in Melbourne;
(3)I will reserve the costs; and
(4)I certify for the attendance of counsel.
I will adjourn.
AT 2.25 PM THE MATTER WAS ADJOURNED
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