Serious questions (as put by the plaintiffs):
- Statutory obligation s 256 Migration Act to afford to a person in detention all reasonable facilities for the access to legal advice relating to their detention. This has not been complied with despite repeated requests from plaintiffs. In docs they have also said they fear persecution in Malaysia. So Ps argue they are entitled to have reasonable facilities made available.
Submits that HH use a low threshold - HH states that "serious question to be tried" is a low threshold.
- S 189(3) - ministers refusal / failure to invoke s 46A. 189(3) is a discretionary power. Such a discretion should ordinarily be exercised in accordance with rules of procedural fairness. Also relevant considerations ie health, security reasons etc. This has not occurred - there has been no discretionary judgement exercised by an officer.
- Third - offshore process - legality of process. It appears from the precedent that anyone not an unaccompanied minor will be removed unequivocally. M61/M69
- Fourth- s198A(3) confers discretion on the minister. On general principles this should be conditioned by principles of nat justice. (3)(a)(i)-(iv) list jurisdictional facts which minister must be satisfied of. Existence of those facts is capable of being reviewed. ie Malaysia arrangement is a "political statement" and is not enforceable. According to agreement the country must comply with min human right standards. This agreement demonstrates that people are given a months income and maybe housing then left to own devices. Whether capable of satisfying stat criteria?? Subs (1) discretion on officer - conditioned by proc fairness & relevant consideration, including fear of persecution for religious reasons in Malaysia.
The trial of these questions will be completely frustrated if they are removed.
Grounds for believing stat provs not satisfied - Malaysia not a sig to cat, ref conv.
HH- question re 198A is are i-iv jurisdictional facts or simply observations???? ***This is the major issue considered by HH this evening.
Donoghue for defendants:
Argues that the 198A criteria are not jurisdictional facts but simply require common sense judgment. - McKerracher J in Sadiqi
Hayne J: BHP v Balfour. Identified ministerial power as "fact finding". Held: Minister could not find a fact if common sense would not make the same finding.
Hayne J mentions Australia's duty to abide its international obligations as being an analogous question.
Ds argue that every judge asked this question has decided that they are NOT jurisdictional questions.
Submits that these are not jnl facts and if they are not, there is no question to be tried. If they are not, reference to legally enforceable protection does not arise.
Hayne J disagrees. Questions counsel- is it legally enforceable protection or protection in fact supported by legal obligation?
D: open to court to evaluate whether criteria declared to have been met have actually been met.
Ds reject argument that if Malaysia not compliant with human rights norms, minister is constrained from sending people there.
D submits that minister bound by proc fairness prior to making a declaration re a country is not valid. That submission fails to have regard to stat context of s198A.
On questioning by HH, Submits that no issue relating to possible persecution in malaysia for a convention reason.
Only issue on balance of convenience is substantial financial and non financial costs - delay: estimated $100,000 per day for staff costs and $120,000 per week for cost of charter.
Hayne: do you accept that removal will defeat the claim entirely?
D - I think that is so.
Hayne: is the declaration registrable? D: no because it's not a legislative instrument. But don't have instructions on that.
Hayne J: if it is the subject of the act it may be s 12 of legislative instruments act kicks in.
Plaintiffs' reply:
At least 2 interpretations of "the minister may declare":
One is that i-iv are jurisdictional facts
The other is the formation of a state of satisfaction by the minister.
D has argued that on basis of 2 single justice decisions they say nothing to be tried.
Jurisdictional facts - for opponent to say that ministers satisfaction is not reviewable is large indeed. Migration Act replete with explicit limitations on review. And 75(v) cannot be taken away. IS reviewable.
Submits that Mckerracher in Sadiqi was obiter.
Seeking interlocutory relief:
Inj stopping removal
Inj requiring cth to afford reasonable chance to get legal advice
Hayne J does not believe it necessary to grant the second stem of the relief, because s 265 obliges the minister to do so.
Hayne J: expresses no view on the merit of the arguments put before him tonight, but cannot say that they are without merit. The plaintiffs should have the limited relief they seek. "Their claims should not be defeated by their removal from Australia if I cannot say those claims are hopeless". Injunction granted to 4.15 tomorrow or further order, and the matter will return before Hayne J at 2.15 tomorrow for further argument.
Recent Comments