Dang, Ex parte - Re MIMA

[2002] HCATrans 46

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry         
  Melbourne  No M118 of 2001

In the matter of -

An application for Declarations, Certiorari, a Writ of Prohibition and Injunction against THE HONOURABLE PHILIP RUDDOCK, MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

Ex parte –

DUNG CHI DANG

Applicant/Prosecutor

HAYNE J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON TUESDAY, 26 FEBRUARY 2002, AT 2.17 PM

Copyright in the High Court of Australia

MR P.G. NASH, QC:   If your Honour pleases, I appear with my learned friend, MR A.F.L. KROHN, for the applicant.  (instructed by Access Law)

MR P.R.D. GRAY:   May it please the Court, I appear for the respondent with my learned friend, MR G.A. HILL.  (instructed by Australian Government Solicitor)

MR NASH:   If your Honour pleases, I also appear for the applicant in the next matter and the two matters are not identical but they are so close to identical it does not matter, in one sense.

HIS HONOUR:   Do you say I should call them together, do you?

MR NASH:   I think it would be worthwhile, your Honour.

HIS HONOUR:   Yes.  What do you say, Mr Gray?

MR GRAY:   Well, there is one practical matter that I must draw to your Honour’s attention and that is that the counsel in the two matters for the Minister are different.

HIS HONOUR:   Yes.

MR GRAY:   It is not appropriate, in my submission, that they be heard together.

HIS HONOUR:   Yes.  I think we will deal with Dang first, Mr Nash, and see where that takes us.

MR NASH:   If your Honour please.

HIS HONOUR:   Now, I have looked at the papers in the matter and am generally familiar with it, Mr Nash.  The order nisi which you seek, is it in the amended form that was filed yesterday?

MR NASH:   Yes, your Honour.

HIS HONOUR:   Can I just, perhaps at the risk of diving into this matter in the middle without paying sufficient attention to other matters of which I should be aware, ask you some questions about the grounds as they are framed?  If you go to the amended draft order nisi under II on page 2, you seek in II(a) and II(b) two declarations.  There is, at least in my mind, some question about what those add, but leave that aside.  They identify that the decision that is the subject of the application is the decision of 27 June 2000, that is the decision or what you say purports to be a decision concerning visa cancellation.  Now, when we come to ground 1, “unlawfully fettered his discretion in relying on Direction No 17”, what exactly is meant by that?

MR NASH:   It is probably more accurate, your Honour, to say in using Direction No 17 as the basis of the decision – and I will try to phrase myself properly – in as much as the direction sets out criteria which are, of themselves, arbitrary – I think your Honour may have heard this before but a primary consideration takes precedence over any other consideration, although it will not, of itself, be sufficient to determine the matter.  But where one has two primary considerations, there is, in fact, we say, no exercise of discretion.  Now, your Honour can quarrel happily, and perhaps gleefully, with the drafting of the ground but ‑ ‑ ‑

HIS HONOUR:   I just want to know, really, what is the case that it is sought to make under this rubric.  I see that there has been a lot of debate in Federal Court first instance decisions about it and really the point is not captious.  What I am really trying to struggle with is to see whether in truth the ground is the Minister did not exercise his discretion, that is the Minister did not exercise the power, or is it saying the Minister simply applied what appears in this document called Direction No 17, that is, are we concerned with a ground that invites attention to what passes through the Minister’s mind, are we concerned with a ground that seeks to say there has been no exercise of statutory power ‑ ‑ ‑

MR NASH:   If there has been an exercise of discretion, it has not been an exercise of the discretion under section 501 because of the existence of the direction and the emphasis on the direction.  In other words, section 501 contemplates a Minister exercising his discretion in each individual case.  Now, he may have guidelines, he may have criteria at the back of his mind, but if he merely has a rubber stamp then he is not exercising his discretion.

HIS HONOUR:   That is an argument I can understand.  Where do I find Direction 17?  Is it in exhibit “DCD-12”?  Is that the document about which we ‑ ‑ ‑

MR NASH:   I think it is “DCD-18”, your Honour.

HIS HONOUR:   Exhibit 18, is it?

MR NASH:   I am sorry, your Honour, my learned friend tells me I am wrong.  Is it “DCD-12”.  Your Honour is correct and I was incorrect.

HIS HONOUR:   And at the fifth sheet in that exhibit, I think, fourth or fifth sheet.  Now, it is a document which, in terms, is a direction under 499 of the Act:

to any person or body having functions or powers under section 501‑

In its terms, is the document something that speaks to the Minister when the Minister himself is called on to exercise a power under 501?

MR NASH:   Well, the Federal Court – this is not answering the question necessarily, your Honour – in at least one case, perhaps two, has said that he is bound by it but being more accurate, perhaps, if one looks at “DCD-18” it appears that he took into account Direction No 17 and I am just looking for the – page 12 of the ‑ ‑ ‑

HIS HONOUR:   The decision document.

MR NASH:   It is the last page where he says under Part E:

I have considered all relevant matters including . . . the Ministers Direction under s499 of the Act ‑ ‑ ‑

HIS HONOUR:   Yes.

MR NASH:   So that whether or not he is bound by it, and the suggestion in the Federal Court case is that he is, but whether or not he is bound by it he actually relied on it as part of his reasoning, or part of his decision‑making which, in our objection, your Honour, this is not an exercise of the discretion in the circumstances of the individual case because the discretion needs to be exercised, not with a set of criteria that are weighted, if I could use that term, in the way they are.  It may well be that in the circumstances of any particular case, the primary factors are not as important as, for example, the degree to which the person has been absorbed into the community, the extent to which the person has a family here, the extent to which the person has no family overseas.

HIS HONOUR:   Part of the reason for my questioning is this, that a possible course for me to adopt, given what has happened with another matter in which this “absorbed person issue”, if I can inaccurately refer to it as that, is raised, is refer it into a Full Court or require application to be made by notice of motion to a Full Court.

If I were to do that in this case, what I would be anxious to guard against is the parties arriving in a Full Court and then either discovering that there is a contested issue of fact, or just as bad, arrive in a Full Court and say, “Oh, well, if only we’d had on some more affidavit material.  Really the case we want to make is rather different from the case that is made on the material we now have”.

That is why it seems to me that an issue for the applicant is to identify with, no doubt, as much care as you have already, what exactly is the case you want to make.  Is it that you want to persuade the Court that the Minister’s thought processes were from A to B to C to conclusion D, or is it a case rather differently based?

Now, they are very much matters in the hands of the applicant but I do not want this thing to end in a Full Court and the parties to see the shaft of light only at that point.

MR NASH:   Well, perhaps I can console your Honour with this thought or this statement.  As we walked up I said to my junior, “We have to do a lot more work on this if we get through today”.

HIS HONOUR:   Well, let us perhaps move on from that and see whether, as you so rightly put it, you get through today, Mr Nash.

MR NASH:   I wish your Honour would not smile when you say that.

HIS HONOUR:   It is half the fun of coming here, is it not, Mr Nash.  Ground 2 seemed to me to be a statement of legal conclusion with little or no particularisation and, on its face, insufficient particularisation.  It tells the reader very little.  What is the point which is sought to be made?

MR NASH:   The point there, your Honour, is that the Minister is given a discretion, a discretion to cancel a visa.  If he misconstrues his jurisdiction and his discretion and assumes it is a discretion not to cancel the visa, then he is really in the situation, as my learned instructor put it to me, of thinking that the applicant is already in the pit and I have to exercise a discretion to pull him out.  If I am to exercise any discretion it is to let him out of the pit, whereas, in fact, under the Act, the applicant is standing on the edge of the pit and the Minister has a discretion to push him in.

It is hard to analogise completely but it is analogous to a situation where the burden of proof may well determine the result of a case.  Why it is framed in that way, I do not know, your Honour, but that is the way it is framed:  “I don’t agree to exercise my discretion not to cancel”.

HIS HONOUR:   So, is it more than wrong question asked?

MR NASH:   It is A, the wrong question asked and B, the discretion given to him, in fact, is not the discretion he exercises at all.  He has a discretion to cancel.  It may well be that the result is a cancellation.

HIS HONOUR:   Yes, I see.  You then have the constitutional power issues.  Estoppel – do you pursue the estoppel ground?

MR NASH:   In so far, your Honour, as it is, in fact, necessary to do that in one sense on the view of the decision in Gunner, if Gunner is to stand.  It really overlaps with improper purpose in ground 6 which really amounts to this, that this is a situation where the Minister has power to either deport or to cancel.  In Gunner the Full Court of the Federal Court held, and I think there are dicta from your Honour that support that view, that the powers were not alternative powers but they were cumulative and you could exercise one or the other and if one was set aside by the AAT the Minister could then turn around and cancel the visa.

We say that in a situation where no question of national interest is raised in the Minister’s reasons, where he is relying solely on the character test and solely on the facts which were before the Administrative Appeals Tribunal, it is a misuse of his power to let a person go to the Tribunal to argue his case on the deportation power before the Tribunal and then, after that is all over, rather than seek to appeal on a point of law, if there is one, to the Federal Court, to say, “Well, I have another power.  I will bypass the AAT decision in this way”.  Now, whether that amounts to estoppel or improper purpose is arguable.  That is the way in which the point is made, your Honour.

HIS HONOUR:   Yes.  Does that then encompass what you would seek to argue under the improper purpose grounds, 5 and 6?

MR NASH:   Under 6, not under 5.

HIS HONOUR:   Ground 6.

MR NASH:   Ground 5 goes to the fact that there was no protocol in place under which the applicant could be removed from Australia.  This, once again, has been before your Honour previously.

HIS HONOUR:   Yes.  Is it to the point to inquire whether the applicant could voluntarily depart Australia?

MR NASH:   Reluctantly, your Honour, the answer is yes.

HIS HONOUR:   At the moment I am not conscious of any evidence directed to the question whether he could voluntarily depart Australia.  If that is where the evidence falls at the moment, is there a sufficient factual framework for the improper purpose argument?

MR NASH:   In relation to paragraph 5, your Honour?

HIS HONOUR:   To the paragraph 5 ground.

MR NASH:   No.  Reluctantly I say no, your Honour.  I am not sure of the evidence on that point but I think the answer may be that he could, but I do not know the answer to that, but if that is the way it falls ‑ ‑ ‑

HIS HONOUR:   Because then, it seemed to me, a possible point of view was that the choice was, “Your visa is cancelled, go, and if you choose not to go, very well, I will detain you until I can make arrangements to remove you compulsorily but at all times you may choose to go”.  That seemed to me, at least, to raise a question that might want some factual foundation.

MR NASH:   In relation to 5, your Honour, if that is the factual foundation we are in strife.

HIS HONOUR:   Yes.  Then “Relevant considerations”.  What is it you would want to say in support of the “Relevant considerations” ground?

MR NASH:   It raises the question, your Honour, of when is there an excess of jurisdiction or a failure to exercise jurisdiction.  If there are a number of factors to be taken into account and they are not taken into account, here, perhaps the crucial aspect of the Minister’s decision in relation to not taking relevant considerations into account is that there was no interview with the wife, parents or any of the relatives of the applicant, all of whom are Australian citizens, all of whom will be affected in one way or another by the departure of the applicant, whether favourably or unfavourably, whether happily or unhappily.  One of the factors the Minister says should be taken into account is the effect of his departure on relatives who are Australian citizens.

HIS HONOUR:   Yes.  Well then, all this being so, what, if anything, do you say about the new section 474 of the Act?

MR NASH:   We say that privative clause – if one looks at sections 501 and 474, section 501 gives a discretion to the Minister to “cancel a visa”. Section 474 does not even purport to be a provision stating the discretion can be exercised at whim nor determining any boundaries to the discretion, no matter how wide. It does something quite different. It says, or purports to say, if the argument put for the respondent is accepted, that the power given to this Court by section 75(v) of the Constitution cannot be exercised in relation to such a decision.

It cannot be read as a section designed to enable a construction to be given to the power under section 501 and one has to remember that even the Hickman principle – when I say even the Hickman principle, your Honour, I know the wealth of authority that has adopted Hickman since.  Hickman, when one looks at it, the views adopted from Hickman were those of Sir Owen Dixon and Justice Rich.  Two members of the Court did not put the same narrow construction on, namely Chief Justice Latham and – I am sorry, it was not Justice Rich.  It was Sir Owen Dixon and Justice McTiernan that put the tight construction on.  Justice Starke went along with the words used by Sir Owen Dixon, but if one reads the judgment carefully it was clear that he was making no distinction.

If the privative clause has the effect that is contended for here, then this Court can be deprived of any power to protect the individual citizen from the excessive jurisdiction of the Executive by a clause such as this placed in any legislation.

HIS HONOUR:   Assume for the purposes of argument that that characterisation of the consequence is right.  What is it that denies that consequence?

MR NASH:   We say that what denies that consequence is section 75(v) and the fact ‑ ‑ ‑

HIS HONOUR:   Thus, the question becomes, does it, a question for 78Bs?

MR NASH:   Yes, your Honour. How can, we say rhetorically, Parliament, which has power to legislate in respect of certain matters subject to this Constitution, legislate so as to legislate section 75(v) out of existence?

HIS HONOUR:   Well, do you, if reliance is placed on 474, as seems likely to be the case, what answer would you seek to make to reliance on 474 in this case?

MR NASH:   Section 474 is invalid.

HIS HONOUR:   Yes.

MR NASH:   In so far as it applies to the powers of this Court.

HIS HONOUR:   Now, there are several things that I think may follow.  First there is the overarching question of what you say I should do immediately with the application you make.  There are two parts to that.  At what point, if at all, should 78Bs be given?  Second part is, what do you say I should do about the application for order nisi?  Should I grant it?  Should I refer some part of the application or the whole of the application into a Full Court by requiring you to make application in the first instance by notice of motion to a Full Court and, wrapped up in that, there is then the third set of issues about whether you would wish to, in any way, refine the grounds and, above all else, supplement or refine the evidence upon which you would move.  Now, there are those three questions which, it seems to me, I will need to answer as far as I can by the end of today.  Is there anything further you wish to say about any of those now?

MR NASH:   Speaking spontaneously, your Honour, I would say that we would ask your Honour to indicate today that you would grant an order nisi, permit us to redraft it to tidy it up, to make it look as I hope my garbled speech – I am just trying to think what the opposite to “look” is and it is not “heard” – and that, so far as section 78B notices are concerned, they should be served prior to the return of the order nisi.

HIS HONOUR:   Yes, and do you say that the order nisi should be returnable before me, or before a Full Court, or what?

MR NASH:   Before a Full Court, your Honour.

HIS HONOUR:   If that is the course we are to follow, that it is to go into a Full Court, is it not better that the application be made in the first instance by notice of motion to a Full Court?  It can then go in with, I think, a slightly greater degree of flexibility for all concerned, no order nisi having been granted, but I would say to you now I would not wish to do that unless and until you had fixed on a final form of the grounds upon which you were seeking to move.  I would make no order of the kind I have mentioned until you are, in effect, nailed firmly to the grounds that you desire to propound.

MR NASH:   Your Honour is speaking metaphorically, I hope.

HIS HONOUR:   Not at all, Mr Nash.  I am talking distinctly literally.  Is there anything else you would wish to say at the moment?

MR NASH:   Nothing else at this stage, your Honour.

HIS HONOUR:   Yes.  Now, Mr Gray, firstly as to what I might describe as the agenda I set towards the end of Mr Nash’s – I dare not call it address,

he was interrupted too often – but is the agenda the correct one, or are there other items on the agenda?

MR GRAY:   There are other ways in which your Honour could approach the matter and I would submit that the matter could be broken down as follows.  One has the constitutional issues, and your Honour has already referred the application in Meng Kok Te to a Full Court on those very issues and I believe that matter is returnable before the Full Court on 18 April.

HIS HONOUR:   Right.

MR GRAY:   So, one might approach that aspect of the matter by adjourning that aspect of this case until some time after 18 April. Now, my learned friend has argued the privative clause question very much in terms of the Constitution so I do not mean to say that that constitutional issue will be decided in Meng Kok Te.

HIS HONOUR:   No.

MR GRAY:   A different approach might be required, with respect, to constitutional issues which arise under the privative clause point.  Putting the privative clause to one side for a moment, the other arguments, the judicial review type arguments in the matter, we submit, can be disposed of today.  We submit they are not arguable and they do not rise to the threshold in which your Honour would grant an order nisi.

HIS HONOUR:   There is this difficulty, is there not, about that, Mr Gray, that we have all these single‑judge decisions in the Federal Court about the effect of Direction No 17?  To say that they are not arguable is a bold decision to take on the return of an order nisi.

MR GRAY:   We say that the decision made in this case does not get caught by any of the conflict on the contents of Direction No 17.  We say that, in short, this case is distinguishable from those cases.

HIS HONOUR:   Can I say this to you at once so that you know the target at which you are shooting?  I have some difficulty with this ground about fettering discretion as you might gather from what I said to Mr Nash.  It is not apparent to me instantly exactly what the applicant is seeking to say about the decision, whether at the end of the day we are required to undertake, if you like, a textual analysis of the decision document and say at the end of it, “That attributes a weight to or a determinative consequence to Direction 17 which is impermissible” or exactly what we are grappling with.

Given that Mr Nash, I think, has indicated that he would wish to give some further thought to his grounds, my immediate response is to be very hesitant about disposing finally of this fetter discretion argument today.  At least I think the applicant needs or may have one more go at formulating it in a way that will give us a clearly identified and defined target for all of us to address.

MR GRAY:   If that is the case, your Honour, then my submission would be that it is appropriate to mention the matter again before making any final decisions and I think your Honour indicated that course.

HIS HONOUR:   What do we do, though, about this 474 point?  It is a point that is going to come up somewhere sometime.  Have we not got to grasp it and deal with it?

MR GRAY:   If the judicial review grounds are not distinguishable and, therefore, not arguable in this case, then the matter is not a good vehicle for the 474 ground to be argued before the Full Court.

HIS HONOUR:   Yes.  Yes, I can understand that.  Well, just going to the amended draft order nisi, we have this fetter discretion point in ground 1.

MR GRAY:   Yes, your Honour.

HIS HONOUR:   Ground 2, which I tended to see as a ground saying that the Minister asked the wrong question but which Mr Nash amplified as he did, without inviting you to develop the whole of your argument, what, in proposition form, is the answer you would make to the kind of argument which it sought to advance?  I mean, it is a very odd question, is it not, on the decision document?

MR GRAY:   I can understand why your Honour makes that observation.  My submission is that, again, the relevant Federal Court authority relied on in the case of Ross is distinguishable.  This decision, read as a whole, includes a very important paragraph which talks of a discretion whether or not to cancel the visa.

HIS HONOUR:   Yes.

MR GRAY:   Does your Honour wish to be taken to that?

HIS HONOUR:   If you can just point it out to me that would help.

MR GRAY:   It is exhibit “DCD-18”.

HIS HONOUR:   Yes, I have it.

MR GRAY:   And on page 4 of that document, under the heading “PART D:  DISCRETION” paragraph 14 is the relevant paragraph.

HIS HONOUR:   And I suppose the other point that you would make is that if you go to the decision page on page 12 you have the positive and the negative, rather the negative followed by the positive:

I exercise my discretion to not cancel the visa  AGREED/NOT AGREED

Mr Dang’s visa should be cancelled  AGREED/NOT AGREED

MR GRAY:   Yes, your Honour, that is my second point.  There is some infelicity of formatting but read as a whole the document does not disclose an error of the kind Mr Nash contends for and I would also wish to take your Honour to a comment by his Honour Justice Brennan in Drake where his Honour was sitting as President of the AAT.  His Honour comments on a very similar use of language in a letter constituting a policy document.  Does your Honour wish to see that?

HIS HONOUR:   I think I am familiar with the passage you have in mind, Mr Gray.

MR GRAY:   It is really very similar and his Honour said:

I do not understand the Minister to conceive his power to be affected by a presumption either that deportation should be ordered or that it should not be ordered.  There is no such presumption in the sections, and I do not construe the Minister’s letter as suggesting that there is.

Earlier on ‑ I have read it out of turn:

But I take the Minister merely to be referring to the power conferred by the statute - a power either to deport or, reciprocally, not to deport in each case.

That is at 2 ALD 634 at 642. Your Honour, in short, the matter is to be distinguished from the Ross Case.  That is the strongest point I wish to emphasise amongst our arguments on that matter.

HIS HONOUR:   Yes.  Well, we then have what might be shortly called the Patterson point in ground 3 which will await Meng Kok Te or, at least, is, I would have thought, likely to be determined by Meng Kok Te.

MR GRAY:   The Minister’s position is that it is entirely appropriate that that aspect of the case should await that decision.

HIS HONOUR:   Now, ground 4 and “Estoppel”.  Leave aside the language of estoppel for a moment which may, perhaps, distract.  The point sought to be made against you is, as I understand it, that if you have concurrent powers of this kind, why permit the exhaustion of one before you embark on the other.  You simply invite people to spend, money, time, effort and emotion while sitting with the other power in the back pocket.

MR GRAY:   Your Honour, it is important that your attention be drawn to a decision of this Court approving the Gunner Case, which my learned friend spoke of.  We have a folder of authorities.  If it is convenient your Honour could have that now.

HIS HONOUR:   Yes.

MR GRAY:   It is number 7 in that list of authorities at the front of the folder.

HIS HONOUR:   Yes.

MR GRAY:   The case of the Minister v Jia Legeng.

HIS HONOUR:   Yes.

MR GRAY:   Your Honour might recall that case.

HIS HONOUR:   Yes.

MR GRAY:   Could I take your Honour to a passage at 694, commencing at paragraph [84]?

HIS HONOUR:   Yes.

MR GRAY:   The proposition which this passage states, and I would ask your Honour to read from [84] to [87], the proposition is that there is no misuse of power involved in the Minister taking the course he has taken in this case.

HIS HONOUR:   Yes.  Now, I think it was a five‑member Court, was it not, and I think that I expressed general agreement with it.

MR GRAY:   Yes, you did, your Honour.  Your Honour, at paragraph [176] ‑ ‑ ‑

HIS HONOUR:   So there is a majority view in favour of ‑ ‑ ‑

MR GRAY:   A unanimous view, your Honour.

HIS HONOUR:   Is it?  Yes.

MR GRAY:   Your Honour’s agreement is expressed at paragraph [176].

HIS HONOUR:   Yes, I have that.

MR GRAY:   The other page references are in the written outline of submissions on behalf of the respondent.

HIS HONOUR:   Yes.

MR GRAY:   In short, estoppel falls with that argument as well.  There are also general authorities and I have cited a couple in the relevant footnote of the outline.  There are general authorities such as Kurtovic, in particular a judgment of his Honour Justice Gummow against the proposition that the Minister can be estopped from exercising a discretion from time to time, a discretion such as this one.

HIS HONOUR:   Yes.

MR GRAY:   The ground is not arguable.  Ground 6 falls with that ground, we submit.

HIS HONOUR:   Yes.

MR GRAY:   There is another aspect of the applicant’s arguments under the rubric of improper purpose and, as your Honour noted, your Honour had made some observations about that in an earlier case.  The ground is at paragraph 5 of the amended draft order nisi.

HIS HONOUR:   Yes.  Well, I thought that in debate Mr Nash acknowledged that on the facts as presently revealed, there may be some difficulties in his pursuit of that ground which would bring us, would it not, to ground 7?

MR GRAY:   Your Honour, these grounds are not developed in the applicant’s written outline and I, at least for my part, had apprehended therefore that they were not pressed.

HIS HONOUR:   Well, I think they are.  Let us assume they are.  What do we do with them?

MR GRAY:   My learned friend drew attention to the applicant’s family connections with Australia and his lack of family support in Vietnam.  Might I take your Honour to ‑ ‑ ‑

HIS HONOUR:   It is not so much that as I understood.  The point which he emphasised, at least orally, was the absence of any interview with the applicant’s wife, parents and relatives, understanding that all of those are Australian citizens.

MR GRAY:   Yes, your Honour, thank you.  The affidavit of the applicant outlines the steps that were taken in relation to the decision and one of the steps was the notification to the applicant of what was called an intention I think.  It perhaps should have been called an intention to consider cancellation of the relevant visa.

HIS HONOUR:   Yes.

MR GRAY:   The policy which was relevant to that matter was, from memory – I have not had an opportunity to go back and check exactly, but from memory was included with that notice.  The applicant was given an opportunity to put in whatever material he wished to put in.  Furthermore, as a consideration at the general level, the position of the relatives and, for that matter, the other aspects that my learned friend, Mr Nash, mentioned, the lack of any family support in Vietnam, those matters were considered as general considerations in the decision.  What my learned friend seems to be talking about is, he complains it was an absence of an opportunity to put in particular pieces of evidence going to certain relevant considerations.  My learned friend does not make a true relevant considerations argument.  He is rather complaining about the lack of what he says is inadequate opportunity to put in evidence going to relevant considerations.  Does your Honour wish me to refer your Honour to paragraphs of the decision?

HIS HONOUR:   I have read it, Mr Gray, and unless there are particular paragraphs to which you think I should be referred.

MR GRAY:   Could I take your Honour just to one?

HIS HONOUR:   Yes.

MR GRAY:   It is paragraph 38.  Does your Honour have the decision still?

HIS HONOUR:   Yes, I do.

MR GRAY:   Paragraph 38, that is on page 9.

HIS HONOUR:   “Close family ties . . . total lack of support in Vietnam”.

MR GRAY:   Yes, your Honour.

HIS HONOUR:   Yes.

MR GRAY:   It is also interesting to note, it is cogent that in support of the Minister’s case that this point and the earlier point about Direction 17 are not arguable.  Those factors were considered under the rubric of a primary consideration.

HIS HONOUR:   Yes.  Well, what course then do you say I should follow?  Given that Meng Kok Te ‑ what can be called a Meng Kok Te point, needs to be stood over, what course should I take today?

MR GRAY:   Your Honour has a power, we submit, to at least indicate, if not order, that certain elements of the application for order nisi will be dismissed.

HIS HONOUR:   What value is there in my giving a quote at this stage?

MR GRAY:   It narrows the issues for the parties, your Honour.  It leaves in no doubt in anybody’s mind what matters are to be developed and agitated before the Full Court if it should come to that.

HIS HONOUR:   Yes.  Particularly, should I do anything about 78Bs?

MR GRAY:   Well, 78Bs will only be required, in the respondent’s submission, if the judicial review points, as I have called them, have some merit and a consideration of the applicant’s argument about the invalidity of section 474 becomes necessary.  That is putting aside the Meng Kok Te point.

HIS HONOUR:   Yes.

MR GRAY:   That is all I would wish to say at this time, your Honour.

HIS HONOUR:   Yes, thank you, Mr Gray.  Now, Mr Nash, other than standing the matter over until Meng Kok Te is argued, what other courses are open to me?  What other course should I pursue on your submission?

MR NASH:   On the face of it, your Honour, it would seem to me that if the constitutional issue in relation to the aliens power is going to be stood over, there is little point in dealing with the rest of the application in vacuo, in a sense, because let us assume the worst and on an adjourned hearing your Honour rejected all the grounds except the constitutional ones about immigration and aliens power, the matter would then have to be adjourned.  The section 78B notices would have to be either served before then or served for the ultimate return date and logically it would seem to me that this matter cannot be dealt with.

HIS HONOUR:   What is the position with Mr Dang?  Is he still in immigration detention of one form or another?

MR NASH:   He is still in detention.  Yes, your Honour. 

HIS HONOUR:   Well, the consequence is that he remains there if stood over.

MR NASH:   I appreciate that, your Honour, but I cannot see any other logical ‑ ‑ ‑

HIS HONOUR:   None occurs to me, but I do not want it later said that we had somehow missed the significance of the fact this man remains under detention.

MR NASH:   Would your Honour pardon me a moment?

HIS HONOUR:   Yes.

MR NASH:   It may be that my instructor or junior have a brighter idea.  If your Honour pleases, I have had some instructions.  My junior and I formed the view that there is not much we can do until Meng Kok Te is decided but my instructor says if that decision is going to be handed down I want to be in the queue when it is handed down.  So, one does not know when the judgment will be handed down.  It is being heard on 18 April.  I wonder if your Honour if this could be adjourned to a date late in April with a possible view to adjournment.

HIS HONOUR:   What I would be minded to do, Mr Nash, is simply adjourn it over to a date to be fixed but give either side liberty to apply on not less than, say, three days notice in writing to the opposite party.  If I am in Melbourne I should be able to accommodate the parties relatively quickly and if I am not in Melbourne then, alas, the parties will have to find us in Canberra.  But I do not see much value in simply getting a date and then having to vacate it.

MR NASH:   With respect, your Honour, we are happy with that solution.

HIS HONOUR:   Yes.  Now, I do not propose to offer you a quote, Mr Nash.  You may take from the transcript of what has passed between me and the Bar such value as counsel undoubtedly get from this so‑called Socratic debate.

MR NASH:   That is totally Delphic, your Honour.

MR GRAY:   Your Honour?

HIS HONOUR:   Yes, Mr Gray.

MR GRAY:   Might I be heard on the matter of the section 78B notices?

HIS HONOUR:   Yes.

MR GRAY:   I am afraid that something I said earlier about whether they were required or not and when they might be required might have been a bit of an exaggeration.  I think I said until your Honour decides that there is some merit in the judicial review points there is no need for them.

HIS HONOUR:   I think probably the 78B would need to go before, would it not?

MR GRAY:   That is the Commonwealth position.

HIS HONOUR:   It occurred to me that if either party seeks to restore this matter to the list, the parties would be well advised to have given thought to giving 78Bs before they do.  That will reduce any prospect of further interruption to the progress of the matter but I do not propose to give some direction about it.

MR GRAY:   Nevertheless, what your Honour has said better reflects the position of the Commonwealth and I adopt it.

HIS HONOUR:   Yes.

The matter will be adjourned to a date to be fixed and either party may have liberty to apply on not less than three days notice in writing to the opposite party.  I will reserve costs and certify for the attendance of counsel.

AT 3.11 PM THE MATTER WAS ADJOURNED