Applicant P66-2003 v Hutchnison & Anor

[2003] HCATrans 444

[2003] HCATrans 444

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P76 of 2003

B e t w e e n -

APPLICANT P66/2003

Applicant

and

COLIN HUTCHINSON

First Respondent

THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Second Respondent

Summons for interlocutory injunction

CALLINAN J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

FROM PERTH BY VIDEO LINK TO BRISBANE

ON THURSDAY, 30 OCTOBER 2003, AT 4.39 PM

Copyright in the High Court of Australia

__________________

MR C.G. COLVIN, SC:   If your Honour pleases, with my learned friend, MR A.R. BEECH, I appear for the applicant in this matter.  (instructed by Stella Koya)

MR P.R. MACLIVER:   If it please your Honour, I appear for the respondents.  (instructed by Australian Government Solicitor)

HIS HONOUR:   Yes, Mr Colvin.

MR COLVIN:   If your Honour pleases, this is an application for an injunction to restrain deportation and it is brought pending the hearing of an application for leave to appeal and it is consequent on a decision by his Honour Justice Heydon refusing orders nisi for constitutional writs.

HIS HONOUR:   I have read his reasons, Mr Colvin, and I have read the guidelines.  I have not had an opportunity to read what you say is the new information.  Where do I find that?  In which affidavit do I find that?  Do you know to what I am referring?

MR COLVIN:   Yes, your Honour.

HIS HONOUR:   I have also read your submissions, I might say, Mr Colvin.

MR COLVIN:   Yes, thank you, your Honour.  There is an affidavit of 2 October of a Ms Koya sworn in support of the application and that has the relevant material appended to it, and it is exhibit SK4 to that affidavit.  Your Honour, unfortunately this is not numbered.  About 15 pages from the end of the exhibit there is a letter on the letterhead of Asylum Seeker Resource Centre.

HIS HONOUR:   And does this letter contain a statutory declaration?

MR COLVIN:   It does, your Honour. The letter is dated 20 November 2002.

HIS HONOUR:   Yes, I have it now, Mr Colvin, if you just give me a moment to read it.

MR COLVIN:   Your Honour will see the new evidence listed on the top of the second page.  The particular material relied upon at this point is in paragraph 3.

HIS HONOUR:   Mr Colvin, is there any evidence about when this material came to hand?

MR COLVIN:   There is, but it came to hand following the determination of the application for the protection visa.  I will just identify where in the letter that is apparent.  There is a quotation from the decision of his Honour Justice Emmett just before the conclusion to the letter, on the second‑last page of the letter, which refers to a memorandum indicating that:

since the hearing before the Tribunal, the applicant had been visited in detention by two other people . . . who have been granted refugee status.  It is said that they are able to give evidence –

There is separately a letter that I wrote earlier, which is also relied upon and said to be part of the material before the decision‑maker, which refers expressly in those terms to the fact that the material was not available.

HIS HONOUR:   But, Mr Colvin, according to what Justice Emmett said, there was no evidence of those matters before his Honour.  Do you see that?

MR COLVIN:   Yes, your Honour.

HIS HONOUR:   That indicates submissions having been made about these matters.

MR COLVIN:   Yes.

HIS HONOUR:   That the evidence, if it existed, was available, and there seems to be no reason at all why it could not have been placed before Justice Emmett.

MR COLVIN:   Your Honour, the issue in relation to evidence is, in our submission, a question as to whether there was material before the officer of the department that pointed to the existence of the new evidence.

HIS HONOUR:   The point I am suggesting to you is that it is not new evidence.  It was evidence that was available before the termination of the curial proceedings, you know, the conventional test for fresh evidence ‑ I do not put this strictly accurately perhaps – but evidence that is certainly capable of having a bearing on the outcome and which could not have reasonably been discovered at the relevant time.  This evidence had been discovered at the time that the matter was before Justice Emmett.

MR COLVIN:   It had, your Honour, but the grounds were confined in such a way by the relevant legislative provisions that it could not be relied upon and therefore was not put before his Honour, it being merely material that would have been put on the merits of the application had it been available at the time.

HIS HONOUR:   What is the provision that prevents this being relied upon as a ground?

MR COLVIN:   The provision has been amended, I think, since that point in time.

HIS HONOUR:   Do you know which one it was at the relevant time?  Mr Macliver may know.

MR COLVIN:   Yes, your Honour.

HIS HONOUR:   Leave it for the time being.  You take the point that, unless reliance upon it was in some way prevented by the statutory provisions, it would not satisfy the test of fresh evidence because it could have been put before Justice Emmett.

MR COLVIN:   Yes, your Honour.  In our submission, the issue is whether the material was available when the primary decision was made.  It was not available at that time; it became available subsequent to that process and there was no mechanism thereafter by which it could have been put before the Federal Court.

HIS HONOUR:   Why not?

MR COLVIN:   I am not sure whether my learned friend Mr Macliver disagrees with that at all.

HIS HONOUR:   You will have to tell me more than that.  You will have to tell me why it could not be put before the Federal Court.  In this Court it has been held that there is a distinction between a statutory court such as the Family Court and the Federal Court on the one hand, and other courts, and that the fresh evidence rule does not necessarily apply in all of its strictness. 

What one has to look at are the statutory provisions under which the court is functioning.  There may be something in the Migration Act that prevents reliance upon it unless it was relied upon before the primary decision‑maker but you will have to refer me to that ‑ you need not do it now.

MR COLVIN:   Yes, your Honour, we will find the provision.  The position of course is that before the Federal Court there was not an appeal; there was a very limited right of judicial review.

HIS HONOUR:   I know, it is a review, of course.  Do you mind if I ask Mr Macliver whether he could assist on this?

MR COLVIN:   Not at all, your Honour.

HIS HONOUR:   Can you help me on this, Mr Macliver?

MR MACLIVER:    Your Honour, I can to some limited extent.  Unfortunately, I do not have reprint No 7 of the Migration Act with me but my recollection, your Honour, is that amongst the limited grounds of review under the former section 476(1) was a ground of review in 476(1)(g) to the effect “that there was no evidence or other material to justify the making of the decision”, and that was in turn qualified by sections 476(4)(a) and (b).

I do not think (a) is particularly relevant.  I think it referred to the evidence in relation to some statutory requirements, but section 476(4)(b) was one that was often invoked.  It was to the effect that there was no evidence of a particular fact and the particular fact was a fact which was critical to the decision‑maker or the Tribunal’s decision.  So that if one could establish that the Refugee Review Tribunal relied upon a particular fact in reaching its decision and if one could establish that that fact did not exist, then that would establish the ground of review.  But that ground of review was hard to establish because it was not simply a matter of asking the courts to re‑examine the Tribunal’s finding of fact; one had to establish that the fact did not exist.  The Federal Court decision of Curragh Queensland Mining was a decision which set out ‑ ‑ ‑

HIS HONOUR:   I think we considered that provision in a case too.  Is there anything in the Migration Act which prevents the reception of fresh evidence, or would have at the time prevented the reception of fresh evidence, on the first review by a Federal Court judge?

MR MACLIVER:    There is nothing in the Migration Act itself, your Honour.  The provision of fresh evidence is a matter for the court’s discretion, bearing in mind the decision under review, the grounds of the application and the relevant statutory framework, in this case the provisions

of the former section 476, in particular dealing with evidence, the “no evidence” ground of review under 476(1)(g) and 476(4).

HIS HONOUR:   Yes, unfortunately I have reprint 8 myself.

MR MACLIVER:    Yes, so have I, your Honour.

HIS HONOUR:   We should be looking at reprint 7, should we, Mr Macliver?

MR MACLIVER:    In relation to the ‑ ‑ ‑

HIS HONOUR:   To the position at the time that the matter was before Justice ‑ ‑ ‑

MR MACLIVER:    Yes, the grounds of review that were available in an application to the Federal Court.

HIS HONOUR:   All right, I will see whether I can get that.  Thank you for that assistance, Mr Macliver.  Mr Colvin, I interrupted you.  You can give some further thought to that, but you continue with your argument.

MR COLVIN:   Yes, your Honour, just one matter while that is being discussed.  The new evidence would have been irrelevant to the grounds available under section 476.

HIS HONOUR:   You have reprint 7, have you?

MR COLVIN:   No, I have not, your Honour, but my learned friend’s submissions have reminded me of the nature of the provisions that faced me when advising this client at the time of the proceedings before his Honour Justice Emmett, and indeed, there is material in the affidavit of Ms Koya which refers to 48B being the line which is the best way to deal with the issue that had been raised prior to the decision with his Honour Justice Emmett.

HIS HONOUR:   The author of the letter says – this is your letter, is it not, Mr Colvin?

MR COLVIN:   Yes.

HIS HONOUR:   You say clearly that the court was unable to take such new matters into consideration as it was not a matter within the court’s jurisdiction.  All I am really saying to you is that you will have to make that point good to me by reference to the available grounds of review at the relevant time at some stage before we finish.

MR COLVIN:   Yes.So, your Honour, the position otherwise is that the Minister has a power under section 48B to allow a person to make a further application, as your Honour knows, and this applicant made a request for that power to be exercised by the Minister so that he could apply relying upon this additional information.  The Minister has published guidelines about what requests should be sent to him and a significant issue in this application is the nature of those guidelines and the power by which they have been exercised.

What occurred here is that the first respondent was the departmental officer who did not send the request on and that is the subject of the issue which this applicant seeks to raise.  The guidelines were, in the applicant’s submission, a decision by the Minister in exercise of legislative power.

HIS HONOUR:   Let me just stop you there for a moment.  That is really what you say in paragraph 19(b) of your written submissions, is it not?

MR COLVIN:   Yes, your Honour, and at paragraph 6 where the relevant authorities are referred to.

HIS HONOUR:   I know that but if we just focus on paragraph 19 for the moment, you say:

however, mandamus will lie against those who fail to give effect to a decision by the Minister in the exercise of the statutory power under s. 48B.

What precisely is the decision of the Minister to which effect you say has not been given?

MR COLVIN:   The decision stated in the guidelines ‑ ‑ ‑

HIS HONOUR:   No, you tell me what the decision is, I want to go to the source of it.  I want you to tell me in terms what decision did the Minister make that the official failed to give effect to?

MR COLVIN:   The decision that applications with cogent new evidence that were relevant to Convention grounds must be forwarded to him for his consideration under 48B.

HIS HONOUR:   That applications with – I am just taking this down, Mr Colvin.

MR COLVIN:   Sorry, your Honour, I will get the precise terms.  The application that:

appears to be credible;

is Convention related;

enhance the person’s chances ‑ ‑ ‑

HIS HONOUR:   Wait a moment.  You are going too fast for me.

MR COLVIN:   Sorry, your Honour, we might have set this out in the outline.  Yes, paragraph 26.

HIS HONOUR:   No, you are telling me what the guidelines say.  I want to know what the decision is, what you say the decision is really, the decision by the Minister ‑ let me just give this some thought – but the Minister has not made any statutory decision.  What the Minister seems to me to have done at this stage, and this is what you will have to persuade me about, is to provide guidelines to officials with respect to which they compare the application and if they are satisfied that the application complies with those guidelines they may, arguably must, put the application to the Minister for him to consider whether he is prepared to exercise his power to grant the applicant an exemption from section 48.

MR COLVIN:   Yes.

HIS HONOUR:   You refer to the guidelines in paragraph 19(b) as an exercise by the Minister of his statutory power under section 48B.

MR COLVIN:   Yes.

HIS HONOUR:   But the Minister is not exercising his statutory power under section 48B when he promulgates guidelines for the use of his officials.  What he is doing is simply providing guidelines to his officials.  He is not exercising any power or authority under section 48B, it seems to me.  Do you say that there is some case that says something to the contrary?

MR COLVIN:   Yes, your Honour.

HIS HONOUR:   Which is that?

MR COLVIN:   Bedlington v Chong (1998) 87 FCR, your Honour.

HIS HONOUR:   Whose decision is that, Mr Colvin?

MR COLVIN:   It is a decision of the Full Court of the Federal Court, comprising the Chief Justice and Justices Kiefel and Emmett.

HIS HONOUR:   Yes.  Where does that proposition for which you contend appear?

MR COLVIN:   At page 80F you will see, your Honour, the statement that:

The guidelines constitute the minister’s determination, in advance, of the circumstances in which he would consider exercising the power.  By the guidelines, the minister was, in effect, saying:

Notwithstanding that I have no duty . . . I am prepared to consider exercising that power in the circumstances set out in the guidelines.

There is no reason why the minister should not lay down guidelines . . . indicating the circumstances in which he was prepared to consider the exercise –

that is what he did –

So long as the Secretary was acting in accordance with the guidelines, she had no duty to refer . . . In reaching that conclusion, of course, we should not be understood as saying that, if the Secretary was not acting in accordance with the guidelines, Ms Chong was entitled to any relief.

HIS HONOUR:   That does not say anything about the promulgation of the guidelines as being an exercise of a statutory power under section 48B.

MR COLVIN:   Your Honour, in our submission, it does.  In the opening words it says:

The guidelines constitute the minister’s determination, in advance –

of certain things.  We accept your Honour’s point that there, of course, has not been a final exercise of power under 48B, there has been no ‑ ‑ ‑

HIS HONOUR:   If the Minister was issuing guidelines that obliged an official, if they were complied with, to refer the matter for him to consider whether to exercise the power or not, then it seems to me that arguably the Minister is, on that basis, confining his discretion in advance and he cannot confine his statutory discretion.  He has a statutory discretion which, it seems to me on a reading of 48B(6), is about as unconfined and absolute as any discretion could be, but you want to read it down and confine it by saying that the Minister himself has confined it by providing guidelines.  It does not seem to me that that is the exercise of a statutory power.  The Minister, it seems to me, has taken an administrative step in order to promote a degree of efficiency and consistency in administration in his department.  How is that an exercise of statutory power, bearing in mind these are guidelines?  You will not find the word “guidelines” mentioned in the Act, will you?

MR COLVIN:   No, your Honour.  If the Minister has done what your Honour has said, then there is a different problem because he has entrusted to departmental officers a discretion in respect of the exercise of a power which is not entrusted to them at all by legislation.  What 48B does make clear is the only person who has this power is the Minister.  No one else can confine it or exercise or control the manner in which the Minister exercises the power.  If the Minister has conferred upon someone else the ability to decide some aspect of what matters will be considered by him, in our submission, that creates a different problem.  We rather give the guidelines at least, in our submission, the validity of operating as a decision of the Minister, as they only can, and there is of course ‑ ‑ ‑

HIS HONOUR:   Yes, they are a decision of the Minister but it is important to characterise the decision.  It is the decision to do something administratively to promote administrative efficiency and consistency.  It is not a decision, I would have thought, by which the Minister determines anything under 48B.  You cannot escape that provision which makes it clear that the Minister cannot be compelled to consider, in effect, whether to consider.

MR COLVIN:   I accept that entirely, your Honour, and we do not seek to escape it.

HIS HONOUR:   But you want to say that the Minister has determined that he will consider whether to consider in cases which comply, according to the view of the official, with the guidelines that he has issued.

MR COLVIN:   Your Honour, it may be at this point that it is convenient to look at the guidelines to actually establish what they themselves say they are.

HIS HONOUR:   I have looked at them but let me just say this to you:  Bedlington v Chong does not appear to me to be authority for the proposition that you are advancing.  It does not say anything about the performance of a statutory duty in issuing the guidelines or of the exercising of statutory power.  In fact, the language used by their Honours make it clear that they did not want to be understood as saying that if there was a departure from the guidelines, the applicant was entitled to relief.

MR COLVIN:   They are leaving open the question, of course, by that phrase.  They are not determining the issue and that is the question which we seek to agitate here as being an arguable question.

HIS HONOUR:   Anyway, on this ground it is critical to your submission that the Minister in issuing the guidelines is exercising a statutory power under 48B.  That is what your submission 19(b) says and it is critical, is it not?

MR COLVIN:   That is on this submission.  We have two other grounds in the alternative, your Honour.

HIS HONOUR:   I know, but on this submission.

MR COLVIN:   Yes, but on this submission, yes, your Honour.

HIS HONOUR:   And you then say:

(c) the Guidelines are an exercise of such statutory power by the Minister ‑ ‑ ‑

MR COLVIN:   Yes.

HIS HONOUR:   That is in 19(c), and again, that is critical to this submission.  If the guidelines are not an exercise of the statutory power by the Minister, then this submission must fail.

MR COLVIN:   I am sorry, your Honour, no.  We say in the alternative that the duty is a common law ‑ ‑ ‑

HIS HONOUR:   I know, I am sorry, I did not make myself clear; I mean on this submission.  I understand you have a separate point about the common law.

MR COLVIN:   Yes, your Honour, that is true, to the extent that ‑ ‑ ‑

HIS HONOUR:   But on getting the statutory duty and an entitlement to mandamus out of the Migration Act, both of those propositions have to be made good.

MR COLVIN:   Yes, your Honour, and in aid of that we do rely upon the terms of the guidelines themselves, which are contained as an exhibit to the further affidavit of Ms Ling.

HIS HONOUR:   Is that page 8 in the heavy type, “The purpose of these Guidelines”, page 4 on the smaller type?

MR COLVIN:   No, your Honour, the relevant guidelines start at page 21, exhibit 3. And your Honour will see at paragraph 104.1 “Purpose”, and:

This Part comprises ministerial guidelines giving instructions for case managers when considering whether to forward –

It is an instruction from the Minister, in our submission, so that supports our characterisation of these guidelines as reflecting an interim decision, as it were, with respect to requests ‑ ‑ ‑

HIS HONOUR:   Do you accept that a Minister administering a department can give administrative instructions but that those instructions need not necessarily be in accordance with any particular provision of an Act and an enactment?

MR COLVIN:   Indeed, your Honour, there are many powers exercised by Ministers which do not have their origin in a legislative provision or carrying into effect a legislative provision, I accept that, but in this field section 48 empowers the Minister only to do certain things and if he is not making decisions about these requests he is entitled to ignore entirely requests without the court being able to do anything.  He has not entirely ignored requests.  What he has done is said, “If a request is of this kind, send it to me”.  In our submission, that exercise of administrative power can only be relative to the legislative provision in 48B.  It has no other function or purpose and it cannot confer on the departmental officer any power because the power resides solely with the Minister.  Therefore, that instruction must operate only as a decision made in the exercise of the power conferred solely on the Minister.

The guidelines themselves say they are instructions and the guidelines themselves do not say, “Please make a decision to assist me in making my final decision”, as is characteristic, we accept that, your Honour.  Often Ministers say, “Here are some guidelines, I have to make a decision, please give me a minute reflecting this policy that I have stated in the guidelines and I will then use that to make my decision”.  That is not the character of these guidelines, in our submission.  Rather, in the key passage on page 24, they say that certain kinds of applications of a kind that we have in this case:

are to be referred in accordance with the agreed format to the Minister’s office‑

The Minister is speaking, this is the Minister’s instruction, he says so at the beginning of the guidelines, and at 106.4 he says, “If requests of this kind come, I am deciding they must be sent to me”.  He is not deciding that in respect of any source of power, in our submission, other than 48B.

Then, to emphasise that there is no decision and no assistance being requested from departmental officers about the decision ultimately to be made by the Minister, at page 27 at 109.1, the statement is made that:

Case managers should not engage in a complete assessment and decision at this stage, as an application has not been validly made.  However, they should ensure that their consideration is consistent with Australia’s international obligations –

And the time frame on the following page at 109.5 indicates two working days.

We accept entirely what your Honour says in relation to many guidelines which are published to assist a Minister in having advice to make a decision, but that is not what these guidelines say in terms.  They say in terms, “Make sure you send to me these kinds of requests”.  In our submission, precisely what the Full Court characterised in Bedlington v Chong was “a determination by the Minister”.  That is the language used by the court, it is a determination in advance of the circumstances in which he would consider exercising the power.  It is not an administrative step; it is a determination.

Your Honour, in our submission, those propositions must, in the context of these proceedings, be arguable.  At the end of the day that is what is sought to be sustained, the test on an order nisi application and the threshold in support of the injunctive relief that is sought in this case.  Of course, we are not saying anything about what the Minister then does in the exercise of the power once things are before him.  That is entirely a matter, we accept, for the Minister and cannot be scrutinised in proceedings.

The alternative argument that we advance is that this is an administrative decision of a character which so affects rights that there is a common law duty that should be recognised.  So that wherever a public official is entrusted with a power that can be exercised and can so affect the position of parties, as is affected in this case, namely, where it bears upon their position in relation to their freedom and rights, then there is a common law duty to properly and duly administer, according to law, the exercise of that power.

HIS HONOUR:   Just tell me what you say the common law duty is.  The common law duty, you say, is for the official, if the application complies with the guidelines, to refer it to the Minister for him to consider whether to exercise his power under section 48B or not.  Is that right?

MR COLVIN:   Yes, it is, your Honour, otherwise there would be no accountability in respect of serious administrative responsibilities entrusted to parties that did not have particular legislative origin.  So, if your Honour finds that these guidelines are merely an administrative process, there would be no scrutiny of those public officials.

HIS HONOUR:   Unless there is clear statutory provision to the contrary.

MR COLVIN:   I accept that, your Honour, and we accept the character of section 48B, but we say that says only things about what the Minister does.  The Minister himself is not subject to scrutiny, but the public officials are.

HIS HONOUR:   All right, I think I understand that submission.

MR COLVIN:   These are matters that, in our submission, were not addressed by his Honour Justice Heydon in dealing with the application that was heard by him.  Rather, the application focused on the other two matters that we raised, namely, that if there is a decision ‑ ‑ ‑

HIS HONOUR:   Your Wednesbury unreasonableness point.

MR COLVIN:   Yes, failure to take into account relevant considerations, or unreasonableness.

HIS HONOUR:   Which is a statutory ground of review, is it?  You say it is a common law principle?  Can you get prerogative relief simply because a relevant matter has not been taken into account?

MR COLVIN:   Not unless we can establish some form of decision being made by an officer who has a duty to make that decision according to law.  We need to establish that in order to ‑ ‑ ‑

HIS HONOUR:   What is the difference between that ground and a Wednesbury unreasonableness ground?

MR COLVIN:   Both of those, the failure to take into account relevant considerations and Wednesbury unreasonableness, depend upon the establishment of a duty to make a decision according to law.

HIS HONOUR:   I am not absolutely sure about the first - you may well be right - but failure to take into account a relevant matter might vitiate the exercise of a discretion but does it of itself ground prerogative relief?

MR COLVIN:   It is, in our submission, if there is a duty to make it according to law because all such decisions will be affected by jurisdictional error.

HIS HONOUR:   What you are saying is it is an error of law not to take into account a relevant ‑ ‑ ‑

MR COLVIN:   Yes.

HIS HONOUR:   All right.  What do you say precisely is the relevant matter that was not taken into account?

MR COLVIN:   The fact that there was new evidence of the character referred to in the phrase in the guidelines.

HIS HONOUR:   Which was?

MR COLVIN:   That is credible, not available before, Convention related, new material.

HIS HONOUR:   And it is Convention related because it goes very much to a critical matter from where your client originated, is that right?

MR COLVIN:   Yes, that is right, your Honour.  The reason he was unsuccessful in his application was solely on the grounds of credibility and because his account was not believed, so therefore, corroborating material from others whose account has been believed would have been a very significant factor in determination of that application.  And we say that if there was a decision to be made by the guidelines, in other words, if our first and primary submission is that there was a duty – no decision to be made - if there is new evidence, if the request contains new evidence of the kind described in the guidelines, the guidelines is an instruction from the Minister to “send it to me”.  There is no decision to be made, it just must be sent on.  That is our primary ground.

If there was actually a decision to be made, either one which there was a duty to make properly at common law or under statute, then we say the decision did not take into account relevant considerations because all that had to be decided was:  is there an application here that contains new evidence of that kind?

HIS HONOUR:   New evidence that is credible.

MR COLVIN:   Yes, that appears to be credible.

HIS HONOUR:   Did the first respondent give reasons?  Where do I find the first respondent’s reasons?

MR COLVIN:   There is simply a letter rejecting the application and it is the last page of SK4 to the affidavit of Ms Koya of 2 October 2003.

HIS HONOUR:   Why should I not infer from the second‑last paragraph of that letter that, for example, the application does not fall within the Minister’s guidelines because, to the official who made this preliminary assessment, the application was not credible?

MR COLVIN:   Arguably credible.  The phrase in the guidelines is “appears to be credible”.

HIS HONOUR:   All right, that it did not appear to be credible.

MR COLVIN:   In our submission, in reality no such decision could have been made because there is a statutory declaration ‑ ‑ ‑

HIS HONOUR:   Now you are getting into factual areas.  Simply because somebody said something on oath does not mean it is true and does not necessarily mean that in the light of other material it is necessarily credible or appears to be credible.

MR COLVIN:   The issue is not “in the light of other material”.  The guidelines require the officer making the decision to look at the material and decide something about that material, not to make a judgment having regard to other material; just decide what is the character of that material.

HIS HONOUR:   I do not know about that, Mr Colvin, because one of the guidelines that you referred me to referred to the fact – no, I think it might be somewhere else.  I thought there was a guideline that said that it has to be remembered that applicants for visas have been interviewed usually by an official and they have been before the Tribunal.  That, I would have thought, calls into play what has been said on previous occasions when the official comes to make an assessment of credibility ‑ of an appearance of credibility, if you like.

MR COLVIN:   I am not quite certain that I have identified correctly ‑ ‑ ‑

HIS HONOUR:   I would need a lot of persuasion that the official has to consider this matter against the guidelines without regard in any way at all to what has been said and what has occurred in the past.  It seems to me to be a very unlikely proposition.

MR COLVIN:   Can I deal with the issue, firstly, without seeking to persuade your Honour and just on the factual material.  So, if your Honour is correct and there is other material that can be considered, this material was a statutory declaration by a person whose application had been determined and who had been granted a temporary visa on the basis that their evidence was credible.  That is the nature of the information that is there and the information that stands on the other side of the equation is the Tribunal’s decision, which finds a lack of credibility because of the fact that the person’s account did not have sufficient detail.  That is in summary, without burdening your Honour with going through the Tribunal’s decision, the nature of the material that was there.  So, the question is whether it is arguable in those circumstances, because that is the test that this Court has identified in its recent decision in Ex parte Palme, whether in reality relevant considerations were taken into account.  A mere incantational recital that “I’ve done it” is not enough if the character and nature of the information there is pointing to the fact that there was actually no real consideration of that material because it points so strongly in a particular direction.

HIS HONOUR:   Let me just look at Palme.

MR COLVIN:   In our submission, it must be arguable that that is the position in the circumstances of this case.

HIS HONOUR:   I did not sit in Palme, Mr Colvin.  What paragraph?

MR COLVIN:   Paragraph [39], your Honour.

HIS HONOUR:   That is in the joint judgment?

MR COLVIN:   Yes, your Honour.

HIS HONOUR:   You rely upon Melbourne Stevedoring, do you?  You say that the material on which the decision‑maker acted, or failed to act, as you put it, supports the inference that the decision‑maker had applied the wrong test?  Is that right?

MR COLVIN:   Yes, and the absence of any reasons, which is the thrust of the decision in Padfield, also cited with approval.  So, if there are detailed reasons it is more difficult to draw the inference than if there is simply a statement of the decision that has been made, which is what we had in this case.  You put those matters together with the character of the evidence that is available and was before the decision‑maker and we say it is arguable that in reality the material was not taken into account.  It links in with the unreasonableness ground because we say even if it is against us on that, the character of the material here is such that it is Wednesbury unreasonableness, that even if someone did take it into account, no reasonable person doing so could have said, “As far as I’m concerned, this material does not appear to be credible”.  Your Honour, those are the submissions.

HIS HONOUR:   Just before you sit down, Mr Colvin, you say Justice Heydon did not deal with your first two points, is that right?

MR COLVIN:   Yes, your Honour.

HIS HONOUR:   All right.  Thank you, Mr Colvin.

MR COLVIN:   Can I just say, your Honour, we have now available section 476 in reprint 7.

HIS HONOUR:   Yes, I have it now.

MR COLVIN:   And the reprint at that time, in (1)(g) ‑ my learned friend’s memory is going to be proven to very effective here ‑ section 476(1)(g) says that one of the grounds was:

that there was no evidence or other material to justify the making of the decision.

And that ground is confined by subsection (4) in terms that:

it is not to be taken to have been made out unless:

(a)  the person who made the decision was required by law to reach the decision only if a particular matter was established, and there was no evidence –

about that, or:

(b)  the person who made the decision based the decision on the existence of a particular fact, and that fact did not exist.

There is no general breach of natural justice ground available under section 476(2) and there is no ground of review on the basis that new material has become available.  So, in our submission, the provision in confining the grounds of review makes irrelevant fresh evidence by the time review is brought to his Honour Justice Emmett.  That is our position in relation to that aspect of the matter and we say it is established by the terms of section 476.

Your Honour, I should say something briefly finally about section 198.  My learned friend says at paragraph 40 of his outline that an application for a request under section 48 does not affect the power under section 198, so that a pending request or a pending application in review of a request does not constrain those who have a power or duty under 198 to deport.  In our submission, that is a construction of the section which is inconsistent with a submission put by the Minister to the Full Federal Court in its recent decision construing 198 and that submission formed part of the reasoning process of the Full Federal Court.

The decision – I am not sure if your Honour has this – is M38/2002 199 ALR 290. It was before his Honour Justice Heydon because there was a separate argument about 198. I see your Honour has it. The relevant passage is paragraph [79] on page 311. Those are our submissions.

HIS HONOUR:   Thank you, Mr Colvin.  Yes, Mr Macliver.

MR MACLIVER:    Your Honour, dealing firstly with the issue of whether there is a statutory decision or a decision made pursuant to statute, we submit that there was no such statutory decision and we would refer your Honour in that regard to the decision of NAQG, a decision of the Full Court of the Federal Court, their Honours Justices Wilcox, Spender and Ryan.  Does your Honour have that?

HIS HONOUR:   Yes, thank you.

MR MACLIVER:    In particular we would refer your Honour to some statements made by the Court.  Firstly, at paragraph [6] – and this of course was a decision involving section 48B – their Honours say: 

There is no recognition in the Act or the regulations for the promulgation of any guidelines by the Minister for the processing of requests for the exercise of the Minister’s power under s48B(1).  Nor, unlike that conferred by other sections, is the power delegable in any respect to any person.

But importantly, their Honours go on:

That is not to say that the Minister may not, for reasons of administrative expediency, give directions as to how requests for the exercise of his power under s48B(1) are to be received and processed within his Department.  However, such directions will not constitute the departmental officers who implement them, the delegates of the Minister for the purpose of the application of general principles of administrative law.

Then, your Honour, their Honours refer at paragraphs [7] and [8] to the decision of Bedlington, to which my learned friend has already taken your Honour.  Then, at paragraph [9], their Honours say:

In the present case the evidence does not permit a finding as to whether the Minister’s guidelines were complied with.  However, for the reasons which we have explained there has been no decision which any conceivable respondent was under a duty to make.  On that narrow, but fundamental, point of administrative law the applicant’s application was bound to fail and the appeal must accordingly be dismissed.

HIS HONOUR:   Mr Colvin says that the second respondent was under a duty to make a decision in accordance with the guidelines.

MR MACLIVER:    Yes, I know, your Honour, that is what he says and we say that is in conflict with what the Full Court of the Federal Court said in NAQG.  Your Honour, the fact that a Minister may promulgate some guidelines for his exercise of a statutory power ‑ ‑ ‑

HIS HONOUR:   Let it be accepted that the guidelines are promulgated for, as I put it, administrative efficiency and consistency.

MR MACLIVER:    Yes, as did the Full Court, your Honour.

HIS HONOUR:   But assume also that they are mandatory in language, as arguably they appear to be ‑ I think the word used is “are”; applications are to be referred if certain conditions of the guidelines are satisfied.  Is that going beyond the mere promotion of administrative efficiency?

MR MACLIVER:    We would submit not, your Honour.  The issuing of such guidelines may create a legitimate expectation that applications will be dealt with in accordance with those guidelines, but this Court has held in several instances, in particular the decision of Teoh and the earlier High Court decision of Haoucher ‑ ‑ ‑

HIS HONOUR:   The case of Lamb has had a fair bit to say about Teoh.  Have you looked at Lamb?

MR MACLIVER:    I have, your Honour, yes.

HIS HONOUR:   On one view of Lamb it may - and I do not put it any differently from this - overrule Teoh, or certainly it may limit its operation.

MR MACLIVER:    Yes, only though, your Honour, insofar as in Teoh it was held that the mere ratification by Australia of a Convention gave rise to a legitimate expectation.

HIS HONOUR:   No, there is more said in Lamb than that about Teoh in relation to that, Mr Macliver.  Anyway, I am distracting you.  We do not have any argument of legitimate expectation here.

MR MACLIVER:    No, that is right, your Honour, we have not, but the point is the that the promulgation of some guidelines or policy or directions, whatever you like to call them, does not create any duty to make a decision in accordance with those guidelines.

HIS HONOUR:   It would be an odd thing, Mr Macliver, if it did because the Minister would to some extent be circumscribing his discretion in advance, or the exercise of his power in advance, is that not so?

MR MACLIVER:    That is right, your Honour.  Your Honour, not only of course is the power in the Minister an unfettered discretion, the discretion is one which permits him not even to consider whether to exercise his discretion.

HIS HONOUR:   Yes.

MR MACLIVER:    Your Honour, we would submit that in any event his Honour Justice Heydon was correct and there is no, we say, arguable error in his Honour’s decision in refusing to make orders nisi and refusing to grant interlocutory relief.

HIS HONOUR:   What about Mr Colvin’s submission that there are two points that his Honour did not deal with?  He did not deal with really his principal point, I suppose.  That is the submission.

MR MACLIVER:   It was unnecessary for his Honour to do so.  It was unnecessary for his Honour to do so because accepting for argument’s sake that there was a valid application for orders nisi in respect of the decision of the first respondent not to refer on the request up to the Minister ‑ assuming for argument’s sake that that is valid and that there was a duty which was capable of being amenable to the constitutional writs, his Honour, for the reasons which he set out and we say reasons which are unimpeachable, then found that there was no arguable case in respect of the application in paragraph 1 of the amended draft order nisi seeking certiorari and mandamus against the first respondent.

HIS HONOUR:   Was that for the reason, Mr Macliver, that his Honour formed the view that there was evidence of compliance with the guidelines anyway?  Do I have that right?  I have his Honour’s reasons.

MR MACLIVER:   My copy of the transcript of his Honour’s reasons has numbering down the left-hand side of each page and the essential part of his Honour’s reasons start at about line 634, your Honour, where his Honour says, “Two grounds are advanced in relation to the orders”, and then his Honour went on to deal with those two grounds in turn.  The first ground, your Honour, was the claim that there was a failure to take into account relevant considerations, being the matters ‑ ‑ ‑

HIS HONOUR:   Everything in the letter.

MR MACLIVER:    Yes, and Mr Colvin’s earlier letter.

HIS HONOUR:   Where does his Honour dispose of that ground?

MR MACLIVER:   It starts ‑ ‑ ‑

HIS HONOUR:   Line 652, I think.

MR MACLIVER:   Yes, about 652.  His Honour says:

The ground raises a factual question.  That question is, did the respondent fail to take into account the information and matters referred to?  In my opinion the ground is not made out, since there is no evidence that the first respondent failed in this respect.  Indeed, there is positive evidence that he did not fail.

And he goes on to say why that is so.  He refers to the first respondent’s letter of 19 March addressed to Mr Karapanagiotidis, who was the author of the 20 November 2002 letter requesting the Minister’s intervention under section 48B, and his Honour notes that that letter, that is, the first respondent’s letter of 19 March 2003, refers to the letter “under reply as being dated ‘20 November 2001’” and his Honour notes that “is an obvious slip for 20 November 2002”.  Then his Honour says:

The letter said that the case of the applicant had been reassessed in the light of that letter, that is to say, the letter of 20 November 2002, and the letter of 19 March 2003 also said that, in the opinion of the writer, the case of the applicant still did not fall within the Minister’s guidelines.  That is evidence that the first respondent did take into account the whole of the letter of 20 November 2002, including the additional information in it, which, it was said, was not taken into account.

And then his Honour refers to the earlier letter of 20 August 2001 and he notes:

That paragraph speaks of the fact that “An application has previously been made and refused”.  That would appear to encompass the letter of 20 August 2001, which the ground under analysis contends was not considered –

So those were his Honour’s ‑ ‑ ‑

HIS HONOUR:   I suppose what Mr Colvin says about that is this, that the Court is obliged to examine what the material is and the assertion, or as he might have put it, incantation, that it had been examined but that in fact, if you look at it on any view, it appears to be credible and no other view is open because it was on oath and supported by some independent objective factors that the people concerned or the possible witnesses concerned were from the same village and spoke the same language and that there were experts, that all of these matters, either taken alone or taken together, do have the appearance of credibility, and that anything that does not deal with or at least give some basis for refutation of that appearance of credibility are not complete reasons or are reasons which show in themselves that the matter has not been taken into account.  I suppose that is what he says.  What do you say about that?

MR MACLIVER:    Your Honour, what we would say about that is that while it may be accepted that the additional information appears to be credible in terms of the guidelines, that, we submit, is not the determining factor and the Minister’s guidelines do not say that whenever an applicant produces additional material that appears to be credible it must be referred to the Minister.  In this regard we would draw your Honour’s attention to the guidelines, in particular at page 27 of the affidavit of Ms Ling in which the guidelines appear and to which my learned friend took you earlier.  First of all, turning back to page 26, at paragraph 108.1 the guidelines say this:

In considering these new claims and/or information, the case manager should consider whether the new information appears to be credible –

And that was the concentration that my learned friend understandably put on the guidelines, but the guidelines go on to say:

and enhances the person’s chances of making a successful claim under the Refugees Convention.

Your Honour, in assessing that the case manager or officer, in this case the first respondent, not only has to consider this new additional information, they have to consider the protection visa application that was previously made, they have to consider the Tribunal’s reasons for decision for refusing to grant a protection visa.  If your Honour turns over to page 27, at paragraph 109.1 the guidelines go on to say:

The case manager should consider all relevant information currently available to them –

and I will just refer to obviously two pieces of relevant information, the protection visa application and the Tribunal’s reasons -

including updated country information, in considering a purported further PV application.

HIS HONOUR:   Was there any evidence that there was updated country information before the first respondent?

MR MACLIVER:    Your Honour, there is no direct evidence.  However, your Honour will recall – and this appears from paragraph 6 of the respondents’ submissions dealing with some of the relevant background – that the application for a protection visa was made in 2000 and refused and the application to the Refugee Review Tribunal for review was made on 13 September 2000 and the Tribunal’s decision to affirm the decision not to grant a protection visa was made on 31 January 2001.

Your Honour, of course this was an applicant who claimed to be from Afghanistan and since the Tribunal’s decision made on 13 January 2001, there is a lot of information that bears upon applications for protection visas by people who claim to come from Afghanistan.

HIS HONOUR:   That letter rejecting the application, is it signed by the Minister or is it signed by an official, the last letter?

MR MACLIVER:    Is your Honour referring to the letter of 19 March?  That is the letter by the first respondent, Mr Colin Hutchinson, who is an officer of the department.

HIS HONOUR:   Yes.

MR MACLIVER:    Your Honour, there is nothing unexceptional in that letter.  It refers to the request.

HIS HONOUR:   Why should the official give reasons anyway?

MR MACLIVER:    Your Honour, that is right.  Indeed, his Honour Justice Kirby in S190 191 ALR 569, which I think is in the list of authorities, at paragraph [21] said:

Under current doctrine it is not incumbent on an Australian official at common law, deciding even a matter so serious as a decision affecting an application for refugee status, to provide the reasons for that decision.

So your Honour, there was no obligation to provide reasons.  The first respondent’s letter of 19 March said that the applicant’s case had been reassessed in the light of his letter, said that it had been determined, that it did not fall within the Minister’s guidelines for referral and no further action was taken.

Your Honour, there is simply no basis, we say, and his Honour Justice Heydon agreed, that there was no basis for saying that the first respondent, Mr Hutchinson, had failed to take into account the matters that had been put to him.

HIS HONOUR:   What else did Justice Kirby say about the guidelines here?  I see he seems to have discussed them.

MR MACLIVER:    Yes, your Honour.  It was a matter involving again section 48B and there was an argument similar to an argument in this case, that the decision was so unreasonable.  His Honour, after referring to the fact that there was no obligation to give reasons at paragraph [21], concluded at paragraph [22]:

Upon this footing I find it impossible to say that, on its face, the document sufficiently establishes such an unreasonable decision by Mr Lemaniak that it can be said that no reasonable decision‑maker in his position could have made such a decision.  The document indicates that the decision‑maker had the minister’s guidelines in mind.  Indeed, I would infer that he had the guidelines before him.

Over the page his Honour concluded:

There is therefore nothing on the face of the documents to life this case into the class of Wednesbury or “manifest” unreasonableness.

HIS HONOUR:   How can you consider whether to do something if you do not know about it?  How can the Minister consider whether he, or she as it now is, I think, whether she should or whether she will or may exercise her power under 48B unless she knows about a request to her to exercise that power?

MR MACLIVER:    Your Honour, it is simply that section 48B does not impose an obligation on the Minister to consider whether or not to exercise the power.

HIS HONOUR:   I know, but ‑ ‑ ‑

MR MACLIVER:    So called “non‑compellable discretion”, your Honour.

HIS HONOUR:   It is a little bit unusual in that respect though, is it not, Mr Macliver?

MR MACLIVER:   These provisions are unusual, your Honour.

HIS HONOUR:   I suppose section 48B(6) simply means that she does not have to consider it at all.

MR MACLIVER:    That is right, your Honour, that is the position at law.  The Minister does not have to consider at all whether even to exercise his or her discretion.

HIS HONOUR:   Can she say in advance that “I won’t consider any application for six months” or “I won’t consider the next 5,000 applications under 48B”?  Can she say that?

MR MACLIVER:    I think she could, your Honour, yes.  Just getting back to Justice Kirby’s decision, not only did his Honour say that on the face of the documents there was simply no basis for a claim of unreasonableness, his Honour went on to say at paragraph [23] to say:

Nor can it be said that the documents disclose a reasonably arguable case of a failure on the part of the official to consider relevant matters in reaching the decision or of taking into consideration irrelevant matters going to jurisdiction or power.

Your Honour, that is exactly the same position here and we say there is no arguable error on the part of Justice Heydon in refusing order nisi on the basis that there is no arguable basis to say that the decision‑maker did not take into account relevant considerations, in other words, did not take into account the material that was being put to him by the applicant.  Equally, that there was no arguable case of saying that the decision was so unreasonable that no reasonable person could make it, particularly having regard to all of the guidelines, all of the relevant parts of the guidelines that I have referred your Honour to, not just the requirements to have some new material that is reasonably credible.

Your Honour, the last issue is section 198(6) of the Migration Act and we have made the point that even if contrary to those submissions your Honour was to find that there was an arguable case for saying that his Honour Justice Heydon had erred in saying that there was no arguable case in relation to the grounds of failure to take into account relevant considerations and Wednesbury unreasonableness, that nevertheless, section 198(6) imposes a duty to remove someone from Australia to whom that provision applies and the mere fact that someone might have made an application for the exercise of the Minister’s non‑compellable discretion under section 48B does not affect the statutory scheme, does not affect the duty of removal, if otherwise the conditions of section 198(6) apply.

His Honour Justice Heydon’s reasons in relation to 198(6) start at about line 696.  His Honour referred to the decision of his Honour Justice Hayne in SE.  Does your Honour have that decision of his Honour Justice Hayne, Re Minister for Immigration & Multicultural Affairs; Ex parte SE 158 ALR 735?

HIS HONOUR:   Yes, I have it.

MR MACLIVER:    The relevant passages, your Honour, are at paragraphs [18] and [19].  Paragraph [18] put the position to the applicant that section 198(6) should not be read as limited to oblige removal, “only when to do so is reasonable”, and:

It was submitted that to remove to a place where the applicant’s human rights may be violated was not reasonable –

And his Honour said:

To read the provisions of s 198(6) . . . as limited in the way for which the applicant contends would, in effect, require the first respondent to exercise his power to permit the applicant to remain in Australia despite his having been refused refugee status.  The power under ss 48B and 417 to permit persons such as the applicant to remain in this country are powers that are expressed as discretionary powers which the minister is not under a duty to consider using.  That being so, the construction of s 198(6) for which the applicant contends is not arguable.

Your Honour, a similar decision was reached by the Full Court of the Federal Court in the case of M38 to which my learned friend took you, and in particular I think to paragraphs [79] and [80] in that case, and we say that there was no error in his Honour Justice Heydon’s conclusions that the fact that there exist these discretions in the Minister in sections 48B and 417 and the fact that there may be applications does not in any way alter the duty

under section 198(6) to remove a person who meets the conditions in that subsection.

For those reasons, your Honour, we say that in any event there should be no interlocutory injunction granted by this Court preventing the applicant’s removal and that his Honour Justice Heydon was correct in refusing that relief.

HIS HONOUR:   Mr Macliver, does section 48B replace and expand upon section 417?

MR MACLIVER:    They are complementary provisions, your Honour.  Section 48B allows the Minister a discretion to say that 48A does not apply so that the applicant can make a further protection visa application.  Section 417 gives a discretion to simply replace the Tribunal’s decision with a more favourable decision.

HIS HONOUR:   It gives the Minister that power, does it?

MR MACLIVER:    Yes. So that if the new circumstances were so overwhelming that it was clear that the applicant was now a refugee, then instead of a fresh application having to be made and the matter go back, the Minister could exercise his 417 powers. If it please your Honour, those are my submissions.

HIS HONOUR:   Thank you, Mr Macliver.  Yes, Mr Colvin.

MR COLVIN:   Thank you, your Honour.  Just some brief matters in reply.  In relation to the giving of reasons, it is not our submission that there was a duty to give reasons, rather, that the absence of them is relevant to the inference that can be drawn.  That is all that we rely upon those and that is the Padfield point that we took your Honour to.

In relation to your Honour’s observation that the Minister could exercise this power by saying, “I don’t want to exercise it for the next six months”, that rather points to what the character of our primary argument is.  That is, this Minister has not done that; rather, this Minister has said, “There are certain kinds of requests that I want to know about and I have given an instruction that they should come to me”.  In our submission, that is an exercise of the statutory power.  It is not a final exercise but it is saying, “What should come to me and what I should consider”.

HIS HONOUR:   Mr Colvin, but why should I not take the second respondent’s stance here today as a decision to exercise his power against your client, no matter what has happened before?  There is no time limit upon the making of the Minister’s decision.  She is here today, her stance is absolutely opposed to your client.  Why is that not the clearest possible indication that no matter what the circumstances that you can point to, the Minister is not prepared to exempt your client from compliance with 48?

MR COLVIN:   Your Honour, if the Minister did say that, it would bear upon the scheme of the Act in relation to 198 and deportation.  The Minister does not say that because it would be a significant issue.  The Full Federal Court in construing 198 said there is a scheme.  The scheme allows people who have subsequent information, new material, to invite the Minister to exercise the 48B power.  If it were the case that notwithstanding the existence of that power in circumstances where there is an arguable case, in our submission, a case which can be established that there is new material ‑ ‑ ‑

HIS HONOUR:   No, but, Mr Colvin, you concede that the Minister cannot be compelled to consider ‑ ‑ ‑

MR COLVIN:   Yes, your Honour.

HIS HONOUR:   Let me finish.  You accept, indeed you make the submission, that the Minister cannot be compelled to consider even whether your client should be permitted to make an application to her.

MR COLVIN:   Yes.

HIS HONOUR:   Why is the inference not absolutely irresistible that the Minister has determined not to consider exempting your client from compliance with section 48?  The Minister is here.  That is the reality, the Minister is saying, “No”.  The Minister is opposing your application for constitutional writs.

MR COLVIN:   But not on that basis, your Honour, and if the Minister were here saying ‑ ‑ ‑

HIS HONOUR:   No, the Minister does not have to put any basis.  The Minister has an unfettered discretion.  The Minister does not have to consider whether your client should be permitted to apply again according to any particular basis or any basis at all; it can be utterly arbitrary.

MR COLVIN:   I accept that, your Honour.

HIS HONOUR:   Why should I not regard the Minister’s opposition to your application today as the clearest possible indication that the Minister is not prepared to consider your client’s being allowed to make a further application.

MR COLVIN:   Because she does not say so, your Honour.

HIS HONOUR:   She does say so, she is here saying she wants your client deported.  How much more clearly could she say it?

MR COLVIN:   She is saying she wants the 198 power exercised, yes, your Honour.  She is not saying that “I am declining or ignoring or doing nothing in relation to the section 48 power”.  That is important because in the scheme of the Act ‑ ‑ ‑

HIS HONOUR:   Deportation is utterly inconsistent with any favourable exercise of the power under 48B for the benefit of your client.  If your client is deported, there is no way that the Minister is going to permit your client to make a further application.  There is an air of unreality about all of this.

MR COLVIN:   There is an air of unreality in the Minister maintaining that 198 is not affected by the existence of 48B.  That is what the Minister comes here to say today, “That I can deport even though this power is there in 48B to deal with changes in circumstances”, even though the Federal Court relied upon the existence of that power in construing 198 in a particular way, and that is a very significant point, in our submission.

HIS HONOUR:   No, that is not what the Minister is saying.  What the Minister is saying is, “I am not going to exercise the power under 48B, I am going to deport your client.  I am putting into effect deportation of your client.”  That is utterly inconsistent with acting in any way in your client’s favour under section 48B.

What do you say about that aspect of it, Mr Macliver?  You did not argue that.  I will give you another opportunity, Mr Colvin.

MR MACLIVER:    Your Honour, the application is presently an application for leave to appeal in respect of his Honour’s not making orders nisi in relation to the first respondent in relation to his decision of 19 March, and secondly, the failure of his Honour to make an injunction preventing the second respondent, the Minister, from ‑ ‑ ‑

HIS HONOUR:   Quite, but courts do not make orders that are futilities.  You are here on behalf of the Minister opposing this application and urging that the process of deportation should take its statutory course.  Is that not correct?

MR MACLIVER:    Yes, your Honour.  I am here representing both the first respondent and the Minister.

HIS HONOUR:   Just focus on the Minister for a moment.  Is your stance not totally contrary to the exercise of any power in favour of the applicant?  The applicant cannot make an application for a protection visa from outside the country.  Is that not right?

MR MACLIVER:    That is right, your Honour.  One of the criteria is that the applicant is a person who is in Australia.

HIS HONOUR:   So that you want your client – focus on the Minister – your client wants the applicant in a position in which the applicant could not even make an application under section 48.

MR MACLIVER:    That is correct, your Honour, because in a sense the Minister ‑ ‑ ‑

HIS HONOUR:   Why is that not a decision by the Minister not to consider whether to exercise a power in favour of the applicant?

MR MACLIVER:    I think it is, your Honour, in this way.  The Minister has firstly an unfettered discretion not only to exercise a discretion under 48B, but there is no power to compel the Minister to even consider exercising her discretion.  The former Minister has issued guidelines as to how ‑ ‑ ‑

HIS HONOUR:   Do not worry about the guidelines.  The Minister has instructed you to oppose this application.  The Minister has instructed you to take a stance which, if I accept your arguments or some of them, means that the applicant will be deported.  Deportation is inconsistent or is absolutely incompatible with the pursuit of any relevant application.  Why is that not the clearest possible indication of a decision by the Minister not to exercise power in favour of the applicant?  You are here on instructions.  The Minister is presumably giving you instructions on the basis of all of the material.  It makes consideration or otherwise by an official of the guidelines utterly irrelevant.  The whole matter has been before the Minister and the Minister is giving you instructions on the basis= very informed instructions.

MR MACLIVER:    I would have to say, your Honour, that firstly of course I do not have any direct instructions from the Minister, that my instructions come via the Department of Immigration’s Legal Branch.

HIS HONOUR:   I am sorry, that is simply not good enough for me because the Minister is on the record and you are representing the Minister.

MR MACLIVER:    Yes.

HIS HONOUR:   You must be acting on behalf of the Minister, surely.  She may be using officials as her ‑ ‑ ‑

MR MACLIVER:    Yes, your Honour, I am acting for the Minister and my instructions are to support his Honour Justice Heydon’s decision refusing to grant interlocutory relief on the basis - or one basis being that section 198(6), there is a duty to remove this applicant, notwithstanding issues relating to section 48B.

HIS HONOUR:   Say Mr Colvin were to succeed ultimately, say he were to succeed in getting an injunction here and say he was successful in his special leave application and the appeal succeeded.  The prerogative relief that would be granted would be a prohibition or an injunction to restrain deportation and mandamus to compel the official to comply with the guidelines.

MR MACLIVER:    Yes, the first respondent, yes.

HIS HONOUR:   Let us assume that the official did that.  Let us assume that the official complied with the guidelines and that there had been non‑compliance before and that compliance required the official, the first respondent, to send the matter up to the Minister.  The Minister would then have no more relevant matter before her than she has now and the stance she has adopted now is deportation, which is utterly incompatible with the consideration of a further application.

MR MACLIVER:    Yes, I agree with all of that, your Honour.

HIS HONOUR:   All right.  Let us see what Mr Colvin says.  Thank you, Mr Macliver.

MR COLVIN:   Thank you, your Honour.  The Minister only opposes this application on the basis of the construction of 198(6), that says it is not affected by the existence of 48B.

HIS HONOUR:   No, Mr Macliver does not do that at all.  Mr Macliver says that the decision of Justice Heydon is correct, do you not, Mr Macliver?

MR COLVIN:   Yes, your Honour, he does.

MR MACLIVER:    Yes, your Honour, we do.

HIS HONOUR:   That is just not right.  Courts do not make orders that are futilities, particularly injunctive orders.

MR COLVIN:   I understand that, your Honour, but in relation to the 198 point, his submission is that this person can be deported under 198(6) irrespective of any position in relation to 48B.  He does not say that a decision has been made in relation to 48B.  He says 48B does not affect 198 and therefore there should be no injunction granted.  That is what he says on behalf of the Minister.

HIS HONOUR:   If he is saying that, it has absolute…..you are putting to me, that is wrong, and I do not think he is saying that because 48B inevitably affects 198.  If a discretion is exercised favourably under 48B, then I would have thought section 198 has to be put in suspension.

MR COLVIN:   That, your Honour, is exactly what the submission is.  That is what is in paragraph 40 of the outline and that is what my learned friend put.  That is why my learned friend does not say the Minister is here saying anything in respect of the 48B power, for which the Minister may not be accountable to this Court, but is accountable to Parliament and to the public and in respect of the obligations under the Conventions which this country has entered into.  So it is a position which is not without significance.  That is, if the Minister has said, “If this Court were to decide in relation to these issues that this is immaterial and according to my guidelines it should be sent to me, but I am going to deport this person anyway because I say I have power under 198 to do that”, then that has consequences and, with respect, it cannot be inferred by this Court that the Minister is doing that on the basis of the Minister’s personal consideration of the relevant material, which is the character of the power entrusted to the Minister, it is a personal power – in our submission, unless it is said squarely here to this Court today that that is the position of the Minister.

What is said, and was said in paragraph 40 of the outline, is that the fact that an applicant may have requested the exercise of power under 48B cannot affect the statutory duty to remove under 198(6).  It is not said that, “I am making some decision in relation to 48B; I am just not going to exercise any power in respect to that person”.  In our submission, that is a significant silence on the part of the Minister.

If this Court is to act on the basis that the Minister is making such a decision, there are other forums in which there may be accountability for the Minister.  That is, if that is the Minister’s position here today, we understand it, and we would accept that if the Minister did say expressly by instructions, “I am not going to exercise my power under 48B”, then that would operate and that would be the position.  But the Minister does not say that and, with respect, it cannot be inferred by this Court, particularly when your Honour has carefully put the position to my learned friend.  It is a very simple matter for him to say that is the position of the Minister, and he does not.

So, your Honour, we have an issue about a request that can be made by people in the position of this applicant.  That request, if it gets to the Minister, does provide an opportunity for a power to be exercised by the Minister.  It is not a compellable power, but that in itself is a significant position for this applicant.  In our submission, it must be accepted that the Minister is not, by the position being adopted today, saying anything in relation to 48B, only saying that irrespective of 48B, “I say I can deport”.

Our answer to that is to say, if that is the position the Minister adopts, it bears upon the construction of 198, and that is what the Full Federal Court said in the passage to which we took your Honour.  That 198 was construed by the Full Federal Court on the basis that 48B provided a protection where there was a change of circumstances.  The Minister is here saying today it does not provide such a protection.  It is a very different stance to what the Minister adopted before the Full Court and, in our submission, would affect any court’s construction of 198, in the context of an overall scheme in the legislation if the Minister was saying, “This power is exercised in circumstances where a party, in accordance with the guidelines, could have material put to me”.

Your Honour, in relation to what we say is the failure of his Honour Justice Heydon was because our primary argument does not depend upon establishing relevant considerations not being taken into account or Wednesbury unreasonableness, it stands separately from those issues, whereas his Honour’s reasons only dealt with those two matters.  In our application for leave to appeal we seek an amendment to make that clear, that there is this third and separate basis which his Honour did not consider.  Your Honour, those are our submissions in reply.

HIS HONOUR:   Thank you, Mr Colvin.  Mr Macliver, courts should not be obliged to deal in futilities.  Courts should not be left to speculate about these matters or, indeed, about the instructions of those who appear before the court, and this is not said in any way of reproach of you because the matters which I have raised have only come up very late.  But, Mr Macliver, if in fact the applicant were to succeed in all of these matters, we could still end up with an absolute futility.  What I am going to do is adjourn this matter and I want you to clarify your instructions.  Do you understand what I am suggesting to you?

MR MACLIVER:    Yes, I think so, your Honour.

HIS HONOUR:   Why should courts be dealing in administrative matters?  In the end it is for the Minister, ministerially, to decide what she proposes to do.  It seems to me the stance that you have taken is inconsistent with any view, as I put to you before, any view but that the discretion is not going to

be exercised, the power is not going to be exercised in favour of this applicant.

Your client, the Minister, by now presumably must have given you informed instructions.  If she has not given you informed instructions, presumably it is only because the Department has not put all the information before her, and that should be done.  So I am going to adjourn this application.  I take it that there will be no action taken under section 198 pending the obtaining of your instructions.  Are you able to give me that undertaking?

MR MACLIVER:   Yes, I think I can give your Honour that undertaking.

HIS HONOUR:   Thank you.  Mr Macliver, I want to make it clear that it is not said in any way in reproach of you.  The matter that I have raised has only just now been raised and you have not had any opportunity of dealing with it and obviously it has not occurred to those who instruct you, your clients, this aspect of the matter that I have just put, and no reproach is intended of them, but I think we need to have the position clear.

MR MACLIVER:    Yes, very well, your Honour.

HIS HONOUR:   So, Mr Macliver, how long do you think you might need to obtain instructions?  I do not want to press you on this.

MR MACLIVER:    Your Honour, perhaps if we could have until next Monday or even next Tuesday.

HIS HONOUR:   You have given an undertaking not to act under section 198.  That undertaking is recorded.  The Court is actually sitting in Tasmania next week, Mr Macliver.

MR MACLIVER:    Yes, I understand that, your Honour.

HIS HONOUR:   I will be travelling on Monday.  I just do not know that we can arrange a video link with Hobart.  Mr Macliver, what I think I will do is adjourn the matter to a date to be fixed but it will be an early date and it will be on no less than two days notice to both of you and in the meantime you can obtain instructions and I will find out whether we can get a video link in Hobart.

MR MACLIVER:    Very well, your Honour.

HIS HONOUR:   Mr Colvin, is that clear?

MR COLVIN:   It is, your Honour.  We are entirely content with that, with respect.

HIS HONOUR:   Yes.  Well, there is an undertaking and we will see how the matter develops next week.

MR COLVIN:   Thank you, your Honour.

HIS HONOUR:   The application is adjourned to a date to be fixed.  The undertaking is recorded and you will be given two days notice at least and I will try to accommodate you as much as I can, so far as your availability is concerned.  Adjourn the Court.

AT 6.33 PM THE MATTER WAS ADJOURNED