Te, Ex parte - Re MIMIA

[2003] HCATrans 709

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 AND INDIGENOUS AFFAIRS

Respondent

Ex parte –

MENG KOK TE

Applicant/Prosecutor

HAYNE J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON MONDAY, 12 MAY 2003, AT 9.32 AM

(Continued from 16/4/03)

Copyright in the High Court of Australia

MR J.I. FAJGENBAUM, QC:   If your Honour pleases, together with my learned friend, MR A.F.L. KROHN, I appear for the applicant for the orders nisi.  (instructed by Access Law)

MR A.L. CAVANOUGH, QC:   If your Honour pleases, I continue to appear with my learned friend, MR C.J. HORAN, on behalf of the proposed respondent.  (instructed by Australian Government Solicitor)

HIS HONOUR:   Now, Mr Fajgenbaum, where are we up to?  What do you say I should now do?

MR FAJGENBAUM:   To refer the matter into the Full Court.  We have received the affidavits, as your Honour directed, we have read it and we are content with the state of affairs, the state of fact, as it appears now in all the material that has been filed in this application.

HIS HONOUR:   Now, in the course of discussion when the matter was last before me, Dr Griffith made plain – and I have in mind what was said at lines 240 to 250 of the transcript – that the challenge was a challenge only to detention.

MR FAJGENBAUM:   Yes, your Honour.

HIS HONOUR:   He said – I have in mind line 243:

That does not mean that the deportation cannot take place.

He went on to say, as I understood him, that the challenge was confined to the issue of continuing detention.  Now, is that the position?  Have I understood the position properly?  If I have, where does that then leave us, with, apparently, the machinery for the effecting of deportation still going ahead?  If I refer the matter into the Full Court, if the machinery for deportation continues, to what position are we likely to come?

MR FAJGENBAUM:   Your Honour, what we say to that is that the material as it now stands discloses in substance that it was only after the matter was last before your Honour on 24 April that the first formal request was made of the Cambodian Government to take steps to assist in the deportation.  What is missing from the material, from Ms Keenan’s two affidavits, is any evidence that deportation pursuant to those arrangements is reasonably practicable in the relevant foreseeable future.

So, on that basis, your Honour, we can assume for the purposes of the application that the facts will not change, because there is no evidence that steps to make the deportation effective can be taken.  We know nothing

about the memorandum of understanding because of its confidentiality.  There was no evidence of any response from the Cambodian Government to the letter from the Department of 24 April.  So we are faced with the dilemma, in a sense – and it is a dilemma that continues, whether the case is remitted or referred – that the whole proceeding can be rendered moot by the perfection of the deportation order.

HIS HONOUR:   Yes.

MR FAJGENBAUM:   But, with respect, any such challenge to detention in connection with the deportation in the circumstance where the deportation order itself is not challenged might, because of the risk that the deportation might be carried out, never be capable of being challenged – the detention could never be challenged.

HIS HONOUR:   Again, although I think you have made this plain, for my own comfort rather than anything else, my understanding – correct me if I am wrong – is that if I were to take the course you suggest of referring the matter into the Full Court, the applicant/prosecutor would accept, for the purposes of the argument of that application, the facts deposed to in the material filed on behalf of the Minister.

MR FAJGENBAUM:   Yes, your Honour.

HIS HONOUR:   Yes, thank you.  Now, Mr Cavanough, what do you say I should do?

MR CAVANOUGH:   Your Honour, we reiterate our submission of the last occasion that the matter should be dismissed.  If your Honour were not prepared to dismiss the application, then we submit that it ought to be remitted to the Federal Court rather than referred in.

HIS HONOUR:   What advantage follows, what disadvantage is avoided, if I do that, do you say?

MR CAVANOUGH:   The advantage of remitting the matter to the Federal Court is that it would be heard by a single justice obviously and that the facts may well change, indeed, almost certainly will change, one would think, between now and the time at which this Court could assemble to hear it.

HIS HONOUR:   Can I understand a little better what you say you have in mind in that regard?  Can I again put firmly on the table for both parties to understand I will not refer the matter into the Full Court if there is a reasonable probability that a factual dispute will then emerge.  We cannot try the issues of fact in a Full Court.

MR CAVANOUGH:   Yes, indeed.  Exactly, your Honour.  I presume from what my learned friend has already said that he is going beyond saying he will not challenge our affidavit material to, in effect, giving us the admission that was sought in the letter that was sent to his instructors.  Now, the letter asks for an admission that at all times from 7 November 2002 the applicant has deliberately refused to co‑operate and has deliberately sought to frustrate his own removal.

Now, if that admission is made, that is one thing, but nevertheless the facts could change between now and when the matter comes to be heard as the probabilities of removal change, and, indeed, if removal itself occurs, because the argument that succeeded in Al Masri was an argument that turned on the degree of likelihood of removal occurring within the reasonably foreseeable future.  Now, that is changing day by day.

HIS HONOUR:   As things stand at the moment, what material, if any, do I have that would touch the question of how likely it is that removal would occur, or that would touch the question when it would be likely to occur?

MR CAVANOUGH:   Perhaps just before I answer that I should say that we understand that my learned friend’s case, at least as expressed by Dr Griffith on the last occasion, seemed to be a very radical one.  It seemed to turn on the passage of time purely and simply and his case seemed to deny any relevance to the likelihood of removal because of the mere passage of time.  We understand that is the ‑ ‑ ‑

HIS HONOUR:   I understood the case to be very simple:  you cannot keep someone in detention for, what is it, five‑odd years, period.

MR CAVANOUGH:   If one goes back that far.  Period.  It does not matter what the circumstances are.

HIS HONOUR:   It has a certain simplicity about it, Mr Cavanough.

MR CAVANOUGH:   It has a great deal of simplicity about it.  If that is all the argument is, I suppose those facts will not have changed, because they relate to the past.  But it is only if an alternative, if you like, or a variation of the argument is put that is based on the Al Masri line – which is the only line that has had any success in this regard in the courts to date.

HIS HONOUR:   No, it seems to me there are two sides to this.  I am sorry to be apparently slow about it, but I do want to tease it out.  I understand the case for the applicant is, however many months it now is, it is too long.  That is an end of it – “You can’t keep me any longer”.

MR CAVANOUGH:   Even if he is due to be removed tomorrow.

HIS HONOUR:   That invites attention to what riposte the Minister makes.  As I understand it, part of the riposte is, “Well, you haven’t asked to be released”.  Another part of the riposte is, “You have been kept there for so long because you were seeking to challenge deportation and therefore it is on your own head that you were kept”.  Perhaps I am characterising the argument unfairly, but that is part of it.

MR CAVANOUGH:   Yes.

HIS HONOUR:   Is there a third element of the argument which says, “Now that you have got to the end of challenges to deportation, the clock starts to run now”?

MR CAVANOUGH:   Yes.  On one view, the clock started to run from 7 November 2002, which is when there was a cessation of litigation, and the letter from the solicitors which was somewhat vague, but at least by March there was a clearer letter saying, “Please let me out” on, if you like, the Al Masri basis.

HIS HONOUR:   Yes.

MR CAVANOUGH:   We say, from that time, which was the first time there was any suggestion of a change of heart – of a departure from the “You must let me stay in Australia” to this new approach – the applicant has deliberately refused to co‑operate, in other words, has deliberately frustrated the process of removing him, which may well have taken place by now had he co‑operated.  Indeed, in paragraph 12 of the latest affidavit, it is deposed by Ms Keenan that she is informed by the relevant departmental person that:

where the necessary information is provided to the Cambodian authorities, a travel document can be issued to an applicant within 14 days of lodgment.  However, in circumstances where only part of the necessary information is provided to the Cambodian authorities, there is no indicative timeframe for the issue of a travel document.

Now, had the applicant co‑operated, he may well have been gone within 14 days of the information being assembled.  The information is presently before the Cambodians, we having done the best we can despite the non‑cooperation of the applicant.  It was reasonable for us to make every effort to obtain information from the applicant before troubling the Cambodians.

HIS HONOUR:   Now, if I were to refer the matter into a Full Court, in what, if any, circumstances would you expect that the Minister would wish to file further material after today – after reference in?

MR CAVANOUGH:   In circumstances in which there was any progress in the steps taken towards removal.

HIS HONOUR:   Yes.

MR CAVANOUGH:   That is really why we say this is a matter more suited to the Federal Court.  At the end of the day, the decision of any court in relation to an application like this is a decision as of the date of decision of the court.

HIS HONOUR:   Now, is either of you able to inform me of how long you have to wait in the Federal Court to get an application of this sort on?  It is a liberty matter.  Does the Federal Court take account of that?  Can you get it on within a few days?

MR CAVANOUGH:   Honestly, I do not know, your Honour.

HIS HONOUR:   I would be assisted to know and, if needs be, I would wish inquiries made.

MR FAJGENBAUM:   It might be the safest to make those inquiries, your Honour.  I have just been informed that it might six weeks to two months, but I have no personal knowledge of it.

HIS HONOUR:   In a liberty matter?  It surprises me.

MR FAJGENBAUM:   That is why I suggest to your Honour that inquiries be made.

HIS HONOUR:   Look, as I said last time round – I said last time that when you came back there should be no misunderstanding that you are on a promise that there would be a remitter.  You are not.  You were not.  I am particularly troubled about the prospect of disputes of fact breaking out in front of the Full Court.  It is just not the tribunal in which we can try issues of fact.  We can try the issue of principle, we can determine the issue of law, but the moment somebody wants to say “A” and the opposite party says “Not A”, we just cannot readily decide it.  If you can get this thing on in front of a Federal Court judge within a reasonable time, my present inclination is to say, go and do it.

The man’s liberty is at issue.  That has to be decided quickly.  If we cannot decide the issue of principle in this Court, then let us keep focused on the fact that a man is presently confined and deal with that.  Now, can either of you tell me how long these inquiries take?  I do not want just the immediate response from the first person who says, “Look, our lists are X weeks, X months, X years behind”.  Of course the lists are X weeks, X months, X years behind. 

What I need to know is an answer to the much more refined question of the immediate issue, being whether, as the applicant would seek to contend, this man’s continued detention is unlawful.  That is a rather more pointed question than would be answered by saying, “How far are your lists behind?”  Now, how long do you think you would need to take, do you think?

MR CAVANOUGH:   Perhaps an hour.

HIS HONOUR:   Well, if I say ‑ ‑ ‑

MR FAJGENBAUM:   Might I say, just before your Honour ‑ ‑ ‑

HIS HONOUR:   Yes, Mr Fajgenbaum.

MR FAJGENBAUM:   Just in response to this fear of a fight of fact breaking out, the only issue of fact to date that my learned friend has identified is the failure of my client to respond to the request for the admission.  With respect, the facts speak for themselves.  What my client’s subjective intention might be is irrelevant.  The facts speak for themselves and, as Dr Griffith said last time, this is a deportation case and the legal question arises is whether there is a duty upon a deportee to co‑operate in his removal.

HIS HONOUR:   Again, Mr Fajgenbaum, so that when you come back you may have had a chance to reflect on what I say – and I offer it to you for that purpose only – if we were going to be called on to determine the neat and narrow issue of principle, then, yes, I understand the importance of the Court determining it and speaking once for all.  That is directed more to the general position than it is to the particular position of this man.  If, however, come at the very earliest we can get this on in August and it is not until some months after that judgment can be given, which is the very earliest that we are looking at, this man is presently in detention.  It is as well that I remind myself of that fact.  I do not think counsel need reminding of it.  But your challenge is to his continued detention from day to day ‑ ‑ ‑

MR FAJGENBAUM:   Yes, your Honour.

HIS HONOUR:   ‑ ‑ ‑  and a judge should perhaps be required to decide that issue as soon as may be.

MR FAJGENBAUM:   If your Honour pleases.

HIS HONOUR:   Well, if I say 11 o’clock, is that convenient to counsel? 

MR FAJGENBAUM:   Yes.

HIS HONOUR:   If for some reason it looks as though you need more time, could you send word?  I do not want to set it over until after lunch.  I have an obligation at 2.15 to speak to the readers from the Bar readers course.  I mean, that is no doubt capable of being changed, but if we can deal with it before the morning is out that would be much more convenient to me than not.

MR FAJGENBAUM:   If your Honour pleases.

HIS HONOUR:   If I say 11 o’clock, unless I hear some later time is needed.  Yes.

AT 9.52 AM THE MATTER WAS ADJOURNED
UNTIL LATER THE SAME DAY

UPON RESUMING AT 10.31 AM:

HIS HONOUR:   Yes, Mr Fajgenbaum.

MR FAJGENBAUM:   We are grateful for your Honour coming back early.  We spoke with Mr Jamie Wood, the Chief Registrar here in Melbourne, and what he informed us was that a directions hearing could be held as early as this afternoon at 2.15 and the hearing could be held within three months and maybe sooner, depending on the attitude that the directions judge took to the matter of urgency and the other commitments of the court.  I think that is accurate.  Yes, and experience has shown that in other cases matters have happened more quickly than that.  Maybe it can happen here.

HIS HONOUR:   No doubt if a judge is told that it is a matter concerning liberty, that should have a considerable influence.

MR FAJGENBAUM:   Yes.  I think a judge was spoken to, or a judge’s associate was spoken to, about the matter whilst we were waiting at the registry counter.

HIS HONOUR:   Yes.  Then, Mr Fajgenbaum, my present inclination is to remit it.  Do you want to be heard further against my adopting that course?

MR FAJGENBAUM:   Your Honour, the only matters that I can urge upon your Honour in opposition to that course, if your Honour is minded to hear those submissions, is, first, any factual controversy is not of our making.  We are accepting all the facts that have been put forward by the Minister and we take no objection, as there was some concern that we might, as to the hearsay nature of the factual assertions. 

Secondly, your Honour, there always remains the real possibility that this matter will come back to this Court by way of appeal, and there is always the real possibility that in the course of all the proceedings in the Federal Court, both at first instance and on appeal, and pending the outcome of any hearing in this Court, that Mr Te will remain in detention.

So there is a live question of principle that ought to be determined by this Court and to leave it to the outcome of any ordinary court process through a trial below and then subsequent appeals can work injustice in its own way.  As your Honour pleases.

HIS HONOUR:   The central issue in this matter is whether the continued detention of the applicant is lawful.  Because that is the central issue, it is, in my opinion, better that the further hearing and determination of the matter take place as soon as possible.  In all the circumstances, there being no contention that there is any want of authority or jurisdiction in the Federal Court of Australia to deal with the application, I consider the preferable course to be that the matter be remitted to that court. 

Even if, as the applicant contends, an important point of principle will fall for determination in the course of those proceedings, the fact that the application is one touching the lawfulness of the continued detention of the applicant, coupled with what appears to be the inevitability that the precise factual basis upon which the matter falls for determination will change as time goes on, leads to the conclusion that the matter should be remitted to the Federal Court of Australia.

Accordingly, there will be orders in the usual terms remitting the application for constitutional and other relief to the Federal Court of Australia.  Costs of proceedings in this Court will be costs in the proceedings as remitted.  I will certify for the attendance of counsel.

MR FAJGENBAUM:   If your Honour pleases.  I am not sure what it takes, your Honour, to have the file sent down to the court below but the possibility of a 2.15 hearing depends on the speed with which communication between the two registries occurs.  Can your Honour make some appropriate direction in that regard?

HIS HONOUR:   Yes.  Mr Fajgenbaum, the file can be transmitted promptly.  That will not have the transcript of this morning’s proceedings, of course.

MR FAJGENBAUM:   We can inform his Honour below.

HIS HONOUR:   It will be, I think, for one of the parties to attend to taking out the order for remitter.  If we can attend to that during the morning, well and good.  I rather doubt that the world will come to a grinding halt though if you do not have the order for remitter perfected by the time that you hope to have a directions hearing appointed.  But the file can be made available and, having made the order for remitter, no doubt the judge to whom the matter is entrusted can be informed of that fact.

MR FAJGENBAUM:   If your Honour pleases.

HIS HONOUR:   Yes.  I will adjourn.

AT 10.38 AM THE MATTER WAS CONCLUDED