Page:ASF17 v Commonwealth of Australia.pdf/8

Gageler CJ Gordon J Steward J Gleeson J Jagot J Beech-Jones J

15 On the hearing of the appeal in this Court, leave to intervene was granted to AZC20, an alien and former detainee who had been granted a writ of habeas corpus by Kennett J in AZC20 v Secretary, Department of Home Affairs [No 2] during the period between the pronouncement of the orders in NZYQ and the commencement of the hearing before Colvin J.

16 While "ordinarily" intervention will not be permitted to a party who may only suffer an "indirect or contingent affection of [their] legal interests following from the extra-curial operation of the principles enunciated in the decision of the Court", there were circumstances peculiar to AZC20 which warranted the Court granting the limited intervention he was afforded. AZC20 had been released from detention pursuant to the writ of habeas corpus granted by Kennett J in AZC20. Kennett J's decision was the subject of an appeal by the Secretary of the Department and the Minister for Immigration, Citizenship and Multicultural Affairs; however, that appeal was discontinued. Even so, neither the Minister nor the Secretary disavowed any intention to detain AZC20 in the event that the appeal in this matter failed in relation to the scope of the principle in NZYQ, even though there may be no change in the factual circumstances affecting the prospect of his removal. Thus, although AZC20 secured his release from detention based on a judgment concerning the scope of the principle in NZYQ, absent a grant of leave to intervene he faced the prospect of being re-detained without being heard. Moreover, the arguments sought to be presented by AZC20 as intervener were shown by his written application for intervention to be additional and complementary to those presented by ASF17.

The primary judge's findings of fact

17 Before examining the path of reasoning of the primary judge to reach the conclusion that the continuing detention of ASF17 did not exceed the constitutional limitation identified in NZYQ, it is convenient to record his Honour's principal findings of primary fact.