ENT19 v Minister for Home Affairs & Anor

[2023] HCATrans 28

[2023] HCATrans 028

Office of the Registry
  Sydney  No S102 of 2022

B e t w e e n -

ENT19

Plaintiff

and

MINISTER FOR HOME AFFAIRS

First Defendant

COMMONWEALTH OF AUSTRALIA

Second Defendant

KIEFEL CJ
GAGELER J
GORDON J
EDELMAN J
STEWARD J
GLEESON J
JAGOT J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 15 MARCH 2023, AT 10.02 AM

(Continued from 14/3/2023)

Copyright in the High Court of Australia

KIEFEL CJ:   Yes, Mr Walker.

MR WALKER:   May it please your Honours.  I had taken your Honours to the terms of section 197C which starts, I repeat, at page 103 of the joint book of authorities.  I need to draw to attention, given the important phrase in subsection (3) to the effect that:

section 198 does not require or authorise an officer to remove an unlawful non‑citizen –

the critical following phrase of course is “to a country if”, so that it is in a sense related to a country.  I draw to attention without repeating the matters in that regard that we have noted in footnote 80 of our written submissions in‑chief.  There is no question that the matters in subsection (3) apply with respect to Iran.  Then we note for the purposes of a duty of removal that it would not appear to be to any degree realistic that there is any other country.  They are distinct points, but they combine, obviously, if we are to enlist this argument for the unusual outcome of a habeas.

Can I then draw to your Honours’ attention that which is at the heart of our argument about the hedging duties no longer being available by reason of the operation of 197C.  In 197D, which starts at page 105 of the book, you will see that, solely for the purpose of 197C(3), the Minister has a power to form a state of mind.  Subsection (2):

If the Minister is satisfied –

and the words continue so as to use the hypothetical notion:

would be made –

Your Honours will see that after the references to subsections (4), (5), (6) or (7) of 197C.  So, there is a turning of the Minister’s mind, if the Minister is so inclined, I stress, to turn his or her mind to it to what the position “would be” – hence the hypothetical.

If the Minister were, upon engaging in that mental exercise, to reach that state of mind, then what happens is that a discretion is available – the Minister may make a decision to that effect – a highly formalist but nonetheless very clear way of making sure that it is by a formal act contemplated by the statute of making a decision to the effect of the hypothetical outcome which would then bring about, obviously, the disapplication of 197C(3).

Our point is that the terms of 197D(2) – by which the cessation of authority to remove – brought about 197C – depends upon an unenforceable possibility that the Minister will consider the hypothetical and an equally unenforceable outcome of a discretion if that were to occur.  When I say an “unenforceable outcome”, I mean no court could direct the outcome of the exercise of discretion – at most, only that consideration be given to it.  But, in this case, that is all unrealistic because there is, in our submission, no enforceable duty to turn the Minister’s mind to that possibility.

Now, for those reasons, the analysis in this Court’s plurality reasons in AJL20 273 CLR 43, at pages 70 to 74, picking it up, perhaps, at paragraph 45 and continuing to paragraph 53, I would be reading your Honours’ passages, is not engaged. The way we put it is, thus, the hedging duties to which reference is made in paragraph 44, and that nomenclature adopted thereafter, those hedging duties, of course, include a duty to remove or to grant a visa; that is, to decide on a visa, which might be a grant, a duty to remove – those being the events which will bring the otherwise indefinite detention to an end, thereby harmoniously showing that the power or obligation to detain is not punitive, because it is for the legitimate purpose, et cetera, et cetera.

Nothing in our argument seeks to contest any element of that established authority.  Indeed, we embrace it.  In our submission, the heresy which the Court identifies in the passage in AJL20, namely, that the Parliament’s will could be suborned by executive delinquency, converting that which was constitutional as enacted somehow to an unconstitutional as administered, is entirely avoided by our argument.  We embrace the proposition that one looks at the nature of the enactment as it now stands in the form it takes with the amendment to 197C and observes that there is a period which might but need not be brought to an end by ministerial discretion in cases such as the present where there is no authority to remove.

Now, your Honours know how the argument for us then proceeds – namely, there being no authority to remove, there is no hedging duty to remove, providing courts, including this Court, with the capacity to make orders of a kind that show, even if there has been lassitude or even illegality in failures of the administration, nonetheless, the legislative duty is constitutionally sound as remaining still for the purpose of removal because the courts are in a position to enforce those so‑called hedging duties.

And though I cannot point to a single thing, as I said yesterday, suggesting that this was an outcome contemplated by those who amended 197C(3) as it has been amended, nonetheless, in our submission, it is an intractable consequence of the withdrawal of authority to do something that a court cannot order it to be done.

STEWARD J:   Mr Walker, this contention does not really turn upon the validity or invalidity of the Minister’s decision, does it?

MR WALKER:   No, it does not.

STEWARD J:   The detention is simply not authorised by the Constitution.

MR WALKER:   There is just one step – I would split that up.  The removal is not authorised and therefore the detention is not.

STEWARD J:   Yes.

GORDON J:   Is that to say anything more than, picking up the passage from Lim, that the detention now is no longer necessary or incidental to the purpose of either the grant of a visa or deportation?

MR WALKER:   Yes.  And again, because ‑ ‑ ‑ 

GORDON J:   Sorry, because of the construction you have put forward for 197C, I meant to say.

MR WALKER:   Yes, exactly.

STEWARD J:   So, how do you deal with Al-Kateb, in the sense that the plaintiff here is in one sense in an analogous position to the man in Al‑Kateb because the only duty is to refoul them to a third country, party country.

MR WALKER:   Al-Kateb of course, was not dealing with any provision that so plainly denies authority to remove.

STEWARD J:   So, the difference is the presence of 197C(3).

MR WALKER:   Yes.

STEWARD J:   All right.

GORDON J:   It may also be that there is a protection finding here, which there was not in Al-Kateb.

STEWARD J:   Yes.

MR WALKER:   That is right.  So, it is the combination of, to use my phrase from yesterday, under 197C there are ticks in boxes, it is the combination of that with 197D, whereby a critical one might be removed by a later hypothetical consideration and a consequent exercise of discretion to make a decision to that effect.

It is the combination of those matters that has no feature in common with Al-Kateb.  And, of course, Al-Kateb is not a case that stands in the way of the proposition that the tension, not for what I will call a legitimate migration purpose, is nonetheless free of the label of punitive.  And thus, because administratively imposed simply by a statute ‑ contrary to the division of functions, Chapter III to the head of the argument that the imposition of punishment is, with all the well-known exceptions, for courts to impose.

EDELMAN J:   Is the essence of the difference, then, between this case and Al‑Kateb that in Al‑Kateb, the majority permitted what could be indefinite detention where that indefinite detention was, to use the language of the joint judgment in AJL20, hedged by duties to remove, yet here it would be to permit indefinite detention unhedged by any duty to remove?

MR WALKER:   Yes.

STEWARD J:   Well, that is not quite right.  There is a duty to remove into a third-party country.

MR WALKER:   But in this case, see our footnote 80, absolutely unrealistic.

STEWARD J:   But it also raises the question whether, when the Court refers in Lim to the duty of removal, whether constitutionally that has to be an unfettered duty, so that if it was legally limited in some substantive way ‑ ‑ ‑

MR WALKER:   Your Honour, quite so.  As cases arise with particular statutory wording, no doubt there may be a division between cases where what I might call the conditionality or the – well, I will just call it the conditionality of the duty to remove is such that in truth, properly characterised, that the detention is not to be seen as for a legitimate non‑punitive purpose.  But that awaits a case where infelicitous language would give rise to such a possibility.  We do not suppose that it would proper to see it likely that the legislature would, as it were, erect what might be called a hollow semblance of the possibility of a duty which could thus be seen to be hedged around, with enforceable ‑ ‑ ‑

STEWARD J:   But your point is that it is hollow here?

MR WALKER:   Yes, absolutely, your Honour.  There is nothing – completely empty.  Iran has been to the forefront.  Others are unrealistic.  It is for those reasons, in our submission, that where there is thus nothing to which a hedging duty can sensibly attach, let alone an order that might be imagined from a court, then this case stands on the other side of the divide proposed and acted on in AJL20 where there was no difficulty in devising an appropriate order; none at all.

GAGELER J:   Mr Walker, from the structure of your revised application for a constitutional writ and from the structure of your outline of oral argument, in particular, the heading above paragraph 6 ‑ ‑ ‑

MR WALKER:   Yes.

GAGELER J:   ‑ ‑ ‑ the concluding words of paragraph 8, I had understood this argument about section 197C to be directed only to the validity of the decision made by the Minister under section 65.

MR WALKER:   Yes.

GAGELER J:   Is that the way you put it?

MR WALKER:   Yes, because as the Minister understood, in its train, necessarily, came detention.

GAGELER J:   Your relief by way of habeas corpus flows from the invalidity of the decision of the Minister.  Is that the way you put it?

MR WALKER:   Yes, with the consequence of unlawful detention.

GAGELER J:   Yes, thank you.

MR WALKER:   Unlawful detention because the powers to do so, which come in the train of that decision, are no longer hedged around by duties rendering it for a legitimate purpose.  Yes, your Honour has understood correctly.

EDELMAN J:   How does that work then at the level of the statute?  If you are not saying that any particular provision of the Migration Act is invalid, is the submission, effectively, that to the extent that 197C, 197D, purport to authorise the decision of the Minister, they have to be disapplied to that extent?

MR WALKER:   Yes.  More importantly, that 198 and the scheme of the Act for detention pending removal cannot constitutionally extend to survey purpose outside that which can be hedged around by the enforceable duties.

GORDON J:   Putting it in those terms though, Mr Walker, that is not dependant upon the validity of the decision below, is it, in this sense?  As I had understood your paragraph 8 of your outline, even if a decision not to grant the visa is right, then as a way you have put the construction of 197C with 197D would also lead to invalidity, would it not, in this sense – I withdraw that – the unlawfulness of the detention?

MR WALKER:   With respect, I accept the logic of what your Honour has put to me.  However ‑ ‑ ‑

STEWARD J:   That was the answer you gave me earlier.

MR WALKER:   Yes.  However, I made it clear – as I did to Justice Gageler – that our proposition 8 does enlist invalidity of the actual exercise, in this case, of the powers in section 65 because, as your Honours know – and propositions 9 and 10 come into this area – we look to the reasons the Minister gave – I took you to them yesterday – and they certainly show an awareness and intent of decision taken and embrace of the consequence of continued indefinite detention as a result of the decision to refuse.

EDELMAN J:   But that would not be the constitutional Chapter III operating directly on the Executive decision.  It is operating indirectly by constraining the extent to which that decision could be made under the Statute.

MR WALKER:   Yes.  If the effect of making that decision, as we say it was, the denial of a visa was understood by the Minister to bring in its train – inexorably, so to speak, and as advised by the bureaucrats – that our client would remain indefinitely in detention, then, in his circumstances, 197C means no hedging duties.  In other words, it cannot be simply seen as a person who is properly kept in detention – AJL20 – because there remain duties, albeit not properly yet performed by the Executive, which the Court may enforce, thereby ensuring that – as it was when it was enacted – that part of the legislative scheme is perfectly valid; because the detention is not for a punitive purpose, to which Chapter III would have something to say, if there were not a legitimate, non-punitive purpose.  I do accept the logic of what Justices Steward and Gordon have put to me, but I am bound to note that the way we put the argument is, as I have tried just to explain it, in our proposition 8, and in answer to Justice Gageler ‑ ‑ ‑

GAGELER J:   Mr Walker, just to spell out the consequence, if we were to take the view that the duty under section 198, as qualified by section 197C, is one that kicks in automatically once a decision is made under section 65 and does not impact on the nature of that decision, as I think we have said in the past, that would be an answer to the argument, would it not?

MR WALKER:   No, it still remains the case as the Minister thought, evidently, that by reason of the outcome of her section 65 consideration – the decision not to grant – there would be detention because of the provisions of the Act in that regard.  We submit that that was a decision for and which involved an indefinite detention which, by reason of 197C, will no longer be hedged – or is not in this case, hedged around – with duties that permit it to be characterised as for a legitimate, non-punitive purpose.  So, no, I would dispute the destruction of the argument by what might be called the 198 bucket above the door that falls upon a decision being made or not.

GAGELER J:   So, critical to the argument is the purpose of the Minister as revealed by the reasons of the Minister.  Is that so?  The subjective purpose of the Minister.

MR WALKER:   That is critical only for what I might call a judicial review purpose of the decision itself.  It is certainly not critical to the outcome of 197C for such a person – not just my client, for such a person in relation to indefinite duration.  We submit this is a flaw and some flaws are not important, some flaws are very important.  We say this is a flaw in the scheme introduced by the amendment that no doubt could be readily repaired.

But, as it happens at the moment, in the bedrock of enforceable duty – which is what the statutory commands or prohibitions for the officers – the effect of 197C means – and for colour, really, I point to the fact that this was appreciated at one level by those who advise and by the Minister accepting the advice.  What was appreciated was that indefinite detention would ensue.  No sign that they thought that that would no longer be accompanied by hedging duties in the AJL20 sense – I accept that.  The subjective understanding of what I might call the lawfulness of the detention is neither here nor there.  It has nothing to do with our argument and is of no concern of this Court, unless and until there were tort claim.

So, in our submission, we do enlist the – as we submitted – unlawfulness of a detention for such a person as a reason why the decision should be set aside.  After all, although of course we want release, release dissevered from the grant of a visa is something I do not have the stomach to argue for.  So, I do need to reverse the visa decision because, as I say, I just cannot, will not argue for a right through habeas to be released – that is for another case, another day, and this case is not being constituted in that fashion.  One day, if Parliament were not to fix things, one day there might be such a case.

GLEESON J:   But, are you saying that section 197C(3) operates as a limit on section 65?

MR WALKER:   No, it operates as a framework within which decisions under section 65 have to be made.  It could not be for a proper purpose in the administrative law sense to make a decision knowing – that is, a decision which is objectively calculated to bring about an unlawful detention.  Of course, the Commonwealth would never argue for such a matter; it is unthinkable.

Your Honours, can I then move – having covered much of this yesterday and in some of the remarks this morning – to propositions 9 and 10.  May I supplement by way of emphasis what I showed your Honours yesterday concerning the course of reasoning.  I took you to page 94 of the application book.  In paragraph 22, I reminded your Honours of the wrong signal notion, this notion which is obviously at the heart of criminal sentencing of general deterrence.  But I wanted to draw to attention the language in the first line of that paragraph 22, protecting and safeguarding Australia’s territorial and border integrity, because, apropos of what I putting yesterday concerning the role of ASIO’s non‑assessment, those are words verbatim taken from section 4, item (aa) of the definition of “security” in the ASIO Act.  In other words, there is in a way that accords with the argument I finished yesterday, there is an obvious – and here, we would submit, linguistically explicit – doubling‑up but contradiction, as we would put it, of that aspect of the national interest.

Now, proposition 9 I have already said, probably, enough about.  It is obviously a source of original sin in an administrative decision if the scope of possibilities – that is, what may be decided – is not appreciated.  The language I have shown your Honours and we have cited in our written submissions fairly plainly show that it was almost a choice between an administrator’s grant or a Minister’s refusal, and that, of course, was a false dichotomy.

GORDON J:   Sorry, can I ask one question about that, Mr Walker.  Do you put that as highly as the analysis that was undertaken in Peko‑Wallsend about the briefing papers that are put forward, and, in a sense, that the analysis is skewed because of the content of them?

MR WALKER:   I do not need to ‑ ‑ ‑ 

GORDON J:   Or do you not need to go that far?

MR WALKER:   I do not need to enlist Peko‑Wallsend’s judicial response to the reality of ministerial decision making, because here it is plain on the face of material that, where the inference is irresistible from her handwriting, the Minister was here.  So, yes, Peko‑Wallsend certainly means all of this is proper to be taken into account in understanding how the decision was made, including the defects in the process to which I have just referred.  But it is very, very plain in this case. 

Your Honours, in our paragraph 62 in our written submissions, we go back for this different purpose in our case to the material pertaining to our client, which is apropos the way in which this scheme overtly contemplates that a person with a criminal record may nonetheless be a person who may be granted one of the relevant visas.  In other words, much depends upon features such as continued dangerousness, such as from recidivism or propensity.  There is, as we assert in that part of our argument set out in paragraphs 61, 62, 63 of our written submission, being our proposition 10, there is no sign whatever that those obviously relevant considerations were taken into account by the Minister. 

Could I then move, in conclusion, to the matter that I noted in opening yesterday.  The law has changed – I not wish to say anything further about possible transition – but it would have, with respect to the mandamus and administrative law part of our case, an effect both in Court were we otherwise successful – I stress, were we otherwise successful – and then out of Court, in light of how the orders might be made.

I have shared this with my friend already, but could I give your Honours a document called “Plaintiff’s Proposed Orders” simply to record as briefly as I can how we say, if the Court ever got to this point, the judicial review aspect should result.  So, the decision to refuse is quashed – 1.  Then a familiar and unassuming mandamus to determine – your Honours know this is not the first time we have litigated.  There really has to be an end to it; that is 2.  Then 3, a recognition of the state, we say, of the file, plain from the material to which we have given citations in our written submissions, that there is really no contest about what I call the ticks in the box for the SHEV.

Now, if we were to succeed so as to obtain that relief, then of course your Honours should proceed confidant that the new law coming into effect on Valentine’s Day will be administered by the Commonwealth by taking such steps as it may be advised concerning, for example, treating that application now being considered in the way that the new law requires.  So that we, however, respectfully argue that no orders from this Court should anticipate any of that.

GAGELER J:   So, what is the utility of the declaration?

MR WALKER:   The utility of the declaration is to ensure that there is no going back on material that has already been covered by decisions.

GORDON J:   So, does that mean for the purpose of what I will call the new regulations that the precondition to them being invoked is certain?

MR WALKER:   Yes, the application for a SHEV, yes.

STEWARD J:   If you are right about your 197C(3) argument, do you not also need a writ of habeas corpus to release him?

MR WALKER:   Yes, I did not mean – I said these are under the orders for what I will call the judicial review Bar.  Yes, is the answer.

May it please the Court.

KIEFEL CJ:   Yes, Mr Lloyd.

MR LLOYD:   Ground 1(a) contends that clause 790.227, which I might henceforth just call 227 to save a bit of time, is ultra vires the powers conferred by section 31(3) and section 504 of the Act.  Section 31(3) provides for the regulations to:

prescribe criteria for a visa or visas of a specified class –

Section 504 empowers the Governor-General to:

make regulations, not inconsistent with this Act, prescribing all matters which by this Act are required –

or relevant.  It is apparent that the power under section 504 extends to making regulations to prescribe the criteria in section 31.  The plaintiff’s written submissions in‑chief address the statutory scheme at 6 to 12 on the assumption that clause 227 was made under section 504.  And then, at 13 to 29, the plaintiff makes submissions as to why that clause is inconsistent with the Act and therefore beyond the power conferred by section 504.  Those paragraphs, 13 to 29, identify reasons why clause 227 cannot be supported by the power to make regulations under section 504.

We provide a short answer to that in our submissions in paragraphs 6 to 8, which is that clause 227 was not inserted by the regulations and is not subject to section 504.  That is in answer to the pleaded ground.  To the extent that that argument has changed, that has not been pleaded, no amendment has been sought.

EDELMAN J:   You are not taking a pleading point though, about the recasting of an ultra vires argument into, basically, the identical argument that is a matter of construction?

MR LLOYD:   Well, whether or not these are identical is really the question.  We do not accept that it is identical, but I am not saying I am not prepared to answer the arguments put.  I just note that it has not been amended and so, we have had to develop it.

We have one set of arguments in the submissions in‑chief, another set of arguments in the submissions in reply which my friend, I think, described yesterday as not his preferred argument, and then we had the arguments that were developed yesterday which are yet another iteration, which has some complexity to it because, for example, at one point when he was saying that one paragraph subsection 36(1C) takes bites out of the clause.  That is one way it was put against us. 

I think in answer to the Chief Justice’s question, my friend said there was still a huge amount of work for clause 227 to do.  By the time he gets to the alleged inconsistency or effect of section 501, in answer to a question your Honour asked, he said there was no practical work for the clause to do.

EDELMAN J:   But that is because they are two different construction arguments.  One construction argument focuses upon the bites that are taken out of it and the other one is the exhaustive effect of section 501 when you are dealing with people convicted of criminal offences.

MR LLOYD:   If there is a true inconsistency there, then clause 227 was enacted by an Act after section 501.  So, if there is an inconsistency, my friend does not address the principle as to why the inconsistent later Act is not seen as an implied repeal of the earlier provision.  So that is not addressed.  So, all I am trying to say is ‑ ‑ ‑

GORDON J:   It may not need to be addressed in this sense, that if, as you accept in your submission, it is an additional requirement, then all you are identifying is that the Minister’s construction of it was not an additional requirement but seeking to resurrect something that had already been dealt with by section 501.  So, you do not need the implied repeal on the second way Justice Edelman just put it to you, arguably.

MR LLOYD:   We do not say there is an implied repeal.  We say all of the provisions are cumulative and they can all just operate – they all have their functions and their own work to do.  So, we do not say there is an implied repeal.  But if, contrary to that position – as my friend suggests – there is an inconsistency of some kind, a tension between there being a so‑called “national interest power” in section 501(3) and the “national interest criteria” in clause 227, then if there is a tension, then the later provision – enacted by the statute – should overrule the previous provision.

GORDON J:   I think the argument, as I understood it, was put in two ways, Mr Lloyd.  I may be wrong.  The first, is the way you just put it which was, I think, probably came from the Bench at some point, but the second way is the way in which Justice Edelman just put it to you – and that is that where you have section 501 dealing people convicted of people‑smuggling offences in that way and it is addressed in those provisions, including in 36(1C), then, consistent with your argument that the new regulation is an additional requirement, one cannot resurrect things that have been dealt with by earlier provisions and, in effect, bring them back in through 227.  That is the principal argument, as I understand it.

MR LLOYD:   Then, I suppose we would say it is not clear.  I am not entirely clear what “resurrecting” them means but if the idea is that ‑ ‑ ‑

GORDON J:   It arises in this sense – sorry to interrupt – it arises in this sense, I think, under section 501(1) and (3), those provisions have broad discretionary powers which permit the Minister and/or delegates to deal with people convicted of people‑smuggling offences.  It has used the facts of this case, and those powers were not relied upon here in this case and, yet, the very same issue – people smuggling – is then used as the national interest criterion idea in order to refuse the visa at this stage.  That is the argument.  It is a bit like 297(C).

MR LLOYD:   We have multiple answers to that argument.  We do not accept that the people‑smuggling conviction was used simpliciter in that way.  It was a much more nuanced measure by the ‑ ‑ ‑

GORDON J:   So that is a question of construction of the reasons.  So, we have got two arguments.  We have got the legal argument about the construction of the statute, I think, and then we have got the question of the construction of the reasons.

MR LLOYD:   I accept that.  Just to foreshadow, we say that section 501(3) is a power about character cancellation.  It is not a general national interest power.  If we are wrong about that – and maybe we should make this clear – if we are wrong and this Court says, no, the Minister has completely misunderstood and, actually, section 501(3) is just this general power to cancel visas for people who fail the character test on a national interest ground applying to all visas, then, at the very least, there should never be a peremptory mandamus because it could be remitted to my client who could use that power.  She does not think that that is the right way of construing it but, if that is the right way of construing it, then she should have a chance to apply the national interest criteria that she applied under the regulation to 501(3).  She has not applied 501(3) at all.

GORDON J:   Or 501(1).

MR LLOYD:   No, indeed.

EDELMAN J:   So, your position, then, is that it is not common ground, contrary to Mr Walker’s submission, that all the criteria, including the criteria in section 501, which include the national interest criteria, were met.

MR LLOYD:   We certainly do not accept that the national interest criteria was met.

EDELMAN J:   In 501.

MR LLOYD:   We do not put it that way, but the national interest criteria is the same.  We accept that in a practical sense, the 501(3) reference to national interest is to the same national interest as in clause 227.  There is a point made – I do not know that it goes anywhere for my friend, or anywhere for me – but just to make the Commonwealth position clear on it, as a practical matter, clause 227 says that the delegate or the Minister has to be:

satisfied that the grant of the visa is in the national interest. 

As the Court would appreciate, the vast majority of protection visas of the 790 class are decided by delegates.  And so, delegates, one would infer, are satisfied of that, because there would nominally think, as a practical matter, that somebody – if someone is owed a protection obligation – that might be a national interest in doing that; and that would be the end of the matter. 

But every once in a while, there might be a negative national interest that could outbalance for that national interest.  So, in relation to the regulation, what the delegate is doing, or what the Minister is doing, is looking to see if there is some national interest to justify a refusal that overwhelms what might be otherwise thought to be, at least one would expect to be, in the usual course of the national interest in granting one.  And so, in that sense, it is, we accept, the same national interest in both matters.  And we say that that the Minister is clearly not satisfied, or – I will put it in a different way, she clearly is satisfied that there are national interest considerations which justify refusing the visa; and that is what she did.

She did not do it under 501(3), because we say 501(3) is not a general power to refuse on that national interest.  That is not how it is put.  The structure of the Act, we say, makes it tolerably clear that it is a power to cancel people on character grounds.  And the way section – and I will get to this, as I am on a roll – the way section 501 is structured is that there is a power to cancel on character – or refuse, cancel or refuse on character grounds in 501(1); but natural justice has to be given in relation to that.

Then there is a separate power under 501(3) where the Minister can – and this would apply in cases where there was a need for urgency – refuse or cancel the visa without giving natural justice, so it can be done quickly, and in order to do that, to use the no natural justice ground, the Minister has to be satisfied that the refusal is in the natural interest.  That is where the national interest plays.

One sees that the focus is not the national interest generally, we say, but the character grounds, because when natural justice is not given under section 501(3), there is something called a revocation process, which is the section 501C, and under the revocation process the only matter for the Minister to look at is whether or not the character test was passed.  There is no review of the national interest.  So, the national interest element in 501(3), we say, is actually to be understood in the context of a national interest for refusing a visa which justifies doing it without natural justice.  In that sense it has a different role to play to clause 227, which is ‑ ‑ ‑ 

KIEFEL CJ:   It is an additional requirement because there is no procedural fairness.

MR LLOYD:   Well, there is procedural fairness for clause 790.227, but there is no procedural fairness under section 501(3), because they do different things.

KIEFEL CJ:  Yes.

MR LLOYD:   So just returning to where I was.  Now, clause 790.227 has not been amended since it was inserted by the Parliament.  The plaintiff in their reply, which is still adopted in the outline in so‑called proposition 5, addresses it in paragraph 2 to 6 of the reply.  The plaintiff there says that it does not matter that the regulations were not made under section 504.  We say that that is surprising.  That is the section that they plead.  The clause not having been enacted under that power is, we say, an answer to that point.  The plaintiffs proffer no authority for the proposition that a clause that is validly made by a statute can later become invalid due to repugnancy with pre‑existing provisions in the statute.

We say there is no authority.  That is contrary to orthodoxy.  If it cannot be read in a harmonious way, then the later should override the earlier to the extent of the inconsistency.

In paragraph 3 of the reply, the plaintiff appears to argue that section 5(3) of the Legislative Instruments Act 2003, as it was then known, operated on registration of regulations to deem the clause to be, in effect, subordinate legislation. Now, whatever might be the intended gist of that submission, we say that section 5(3) of the Legislative Instruments Act does not deem the clause to have been made under section 504, so that is not a way of bringing back section 504 into it.

However, we accept that section 5(3) of the Legislative Instruments Act could be relevant to this Court because it is an answer to another one of my friend’s new arguments, that is, he has this argument which he developed yesterday that because the clause was not inserted by the Act, they are not prescribed by regulations.  So, my friend took the Court to section 35A(6) which uses the expression “prescribed by regulation” and section 65(1)(a)(ii) which also in effect uses “prescribed by . . . the regulations”.  We say those expressions are apt to refer to criteria in regulations even though they were put in the regulations by a statute.  So, that is the short answer to it.

Section 5(3), insofar as it deems them to be regulations, would just support what we would say would already be the natural meaning.  Then my friend took the Court yesterday to section 46AA(2)(b).  I think the Court did not have a copy of it yesterday, but now has a copy of it.  It is a somewhat unusual provision.  It may be seen that under 46AA(1)(ca) it makes the provision extend to so‑called SHEVs, safe haven visas.

Now, if my friend’s construction were to be adopted in relation to 35A(6) and 65(1)(a)(ii), then there would be no regulations in effect prescribing criteria that must be satisfied for the visa.  Then under 46AA(2)(b), any application would be valid.  So, if the Court adopts that approach, that means every 785 and 790 visa – all their criteria were only – all the criteria in the regulations, anyway, were only put in via statute.  If that formula is not enough to include criteria put into regulations via statute, then there are no regulations in force that prescribe criteria and that means that that provision is triggered so that no one has ever made a valid application for that visa.

GORDON J:   Could you explain something to me:  what the purpose of 46AA is.

MR LLOYD:   I would apprehend that the purpose of it is that the government could repeal the regulations, and that would have the effect of terminating ‑ ‑ ‑

GORDON J:   Any application for a visa?

MR LLOYD:   It would terminate the ability to make a valid application for that kind of visa.

GORDON J:   Thank you.

MR LLOYD:   So, it would be a way of bringing to an end that form of temporary protection visa.

GORDON J:   Thank you.

MR LLOYD:   So, that is our answer to the additional argument raised yesterday.

The plaintiffs then, in their reply submissions in 4, observe that the Parliament chose to insert the visa conditions and the regulations rather than the principal Act.  That may be accepted.  We say that was done in a way that would permit later for those visa conditions to be amended by regulations.  That is the purpose of putting it in the regulations, but nonetheless it was still enacted by an Act and does not undermine our argument about that, or mean that it is necessarily subordinate.  It just means that it facilitates a later amendment, which has not happened.

Finally, in this context, in paragraph 6 of the reply submissions, the plaintiff seeks to draw a parallel between clause 227 being made under a statute and regulations that are made by the Governor‑General but subject to a clause that says that they:

have force and effect as if they had been enacted in the primary Act.

We say that that is not a persuasive analogy.  The 227 was enacted by a statute, it is not deemed to have been enacted by a Statute.  So, we say that goes nowhere.  So, that is in answer to the first aspect of the case, but I will, of course, now go on to consider the re‑packaging of what were initially put as inconsistency arguments but are now put as construction arguments.

First, can I address some contextual matters.  In considering a national interest criterion – or whether a national interest criterion is inconsistent with the Migration Act, the following matters are relevant.  We say the plaintiff needs to demonstrate that it is inconsistent with the Act for a criterion for the grant of a protection visa to be made to the effect that the Minister is satisfied – or to be made subject to the Minister being satisfied that the grant is in the national interest.  A visa criterion including the national interest is consistent with the basic object of the Act, section 4(1) – which I will not take the Court to but it is in the joint book at 77 – the plaintiff says that:

it is implicit in s 4(1) –

this is said in their reply at 11:

that the Act . . . reflects Parliament’s calibration of what the national interest requires.

That amounts to an assertion that the Act exhaustively regulates the subject matter of the national interest – and, on that view, any regulation utilising the concept of the national interest would be invalid.

We say there is no compelling reason to read the Act in that fashion.  The Act clearly envisages that considerable work would be done by the regulations.  This includes prescribing visa criteria.  And we just say there is no reason to construe section 4(1) as saying that the national interest is exhaustively addressed in the Act and cannot be addressed ‑ ‑ ‑

GLEESON J:   Perhaps not exhaustively, but your explanation of how the Minister would apply 227 revealed, I thought, an acceptance that the criteria that are set out in the Act are the primary basis on which the Minister would be satisfied that the visa is in the national interest.

MR LLOYD:   I did not mean to say that.  I think that the intention of including a clause 227 is to allow the Minister – is to accept that not everything that might be in the national interest can be codified or particularised, whether it be in the regulations or in the Act and, for certain kinds of visas, the government, I suppose, has considered that there should be an additional requirement that the Minister thinks that the grant is in the national interest, and that allows the Minister to consider the national interest broadly.

GLEESON J:   But the main reason that the Minister would – or the delegate would, in the ordinary course – be satisfied as to national interest is because the applicant satisfies the protection obligations which are the obligations in the Refugee Convention as modified by the Migration Act.

MR LLOYD:   I accept that if somebody is – at least, if they are owed non‑refoulement obligations, which is a sub-set of refugees – but if they are owed non‑refoulement obligations, then that could certainly give rise to the perception that there is a national interest in granting the visa.  I accept that.  But the purpose of clause 227 is to recognise that there may be, for that kind of visa, a counter‑veiling national interest that should be taken into account, and if the balance of the national interests outweigh that perceived national interest, then that is the obligation of the decision-maker to make that balance.

GORDON J:   So, could I just ask one question which follows on from that, which is probably taking you out of – I know you are dealing with context.  But does that mean that on the Commonwealth’s view, that 227 can be used to refuse a SHEV on the basis that the Minister is not satisfied that it is in the national interest because of the criminal conviction?

MR LLOYD:   It could do, yes. 

GORDON J:   Notwithstanding that the other provisions have been given a tick in the way in which Mr Walker explained, including taking into account the criminal conviction under section 501?

MR LLOYD:   Well, some like the applicant pass 501 because 501 was not exercised.  This is something that was available.

GORDON J:   And was not utilised. 

MR LLOYD:   Section501 was not utilised but this one was.  I mean, in our submissions in paragraph 33, we quote an extract from a decision of the Federal Court and the presiding judge was one of the two judges in a case called Huynh.

GORDON J:   Yes.

MR LLOYD:   And in that case and in that passage, the point is made that the national interest would extend to saying that people who had committed certain offences – I mean, it would be at least open to a Minister to think that the national interest is served by excluding people who have committed certain kind of offences.  We embrace that view.

GLEESON J:   But you would accept, would you not, that the Minister could also exercise section 501(1), applying that reason?

MR LLOYD:   No, not on 501(1).  Sorry, 501(1) ‑ ‑ ‑

GORDON J:   They could have.

MR LLOYD:   It depends on the offense, but if it gives rise to character concerns, then, yes. 

GORDON J:   And that is the position here?

MR LLOYD:   Yes.  We certainly accept that the person here fails the character test.

STEWARD J:   Could I ask, Mr Lloyd – I may have misremembered this, but I had thought there was a 501 decision in this matter, had been set aside by the Full Federal Court.

MR LLOYD:   That is so.  There was a 501 decision.

STEWARD J:   So, the Commonwealth did turn its mind to its 501 powers.

MR LLOYD:   Sorry, it was a single judge of the Federal Court:  Justice Perry.

STEWARD J:   Yes.  All right.

MR LLOYD:   It was set aside, and then when it was remitted to the Minister – when the application was remitted to the Minister – on the next occasion, the Minister did not rely upon 501, which was not to say he could not have relied on 501, just that he did not rely – and that is not this decision; that is still a previous decision.

STEWARD J:   All right.  Thank you.

MR LLOYD:   So, in terms of the context, I did also want to mention the legislative history.  That history, we say, is relevant to the construction questions.  The national interest criterion for protection visas was brought in when the whole content of protection visas was brought in; so, in the inception of it in 1992 by the Reform Act.  So, from the very beginning, the regulations had a national interest criterion in it.  So, all of that is the 1992 Act that is from 1994.

KIEFEL CJ:   What do we draw from that, Mr Lloyd?

MR LLOYD:   That, in conjunction with the next point, which is the pre‑existing legislation, also which dealt with protection obligations also had a national interest ground.  What we say is that there was a long history of having a national interest criterion for the grant of permits or visas in relation to protection visas, and that when the 1992 Reform Act came in, that continued, which would support the inference that Parliament did not think that it was inconsistent with the scheme; that it was just a continuation of a well-established practice to have a national interest criterion.

KIEFEL CJ:   Or there is a cumulative effect.

MR LLOYD:   Yes, maybe.  I am not entirely sure what your Honour means by that, sorry.

KIEFEL CJ:   An additional source of power.

MR LLOYD:   It was certainly, and it did – one part of the relevance of it – and I come to this later, but to foreshadow it – is that 501 was inserted after this.  So, 501 was inserted in, I think, about 2001, and it was inserted in addition with section 501H.  Section 501H says this 501 thing is in addition to everything else, do not see this as exclusive.  That is what section 501H says.  Nonetheless, their argument is 501H replaces other things.  Parliament cannot be clearer than 501H saying, no, it does not replace other things; it is in addition.  One of the things it was in addition to was 866.226, which was the existing national interest criterion. 

So, in terms of references for the Court, the original 866.226 is, I think, in the supplementary bundle on page 276.  Examples of pre‑existing national interest criterion are clause 784.332D, which is in the supplementary bundle on page 27, and also clause 817.335, which is on page 41.  Similar national interest requirements have also been imposed in relation to other refugee and humanitarian entry permits.  We cite them in our paragraph 14 of our submissions – I will not mention them here. 

We say that all supports the notion that a national interest criterion is not inconsistent with the Act and, working out whether the Act is the exhaustive place for national interest considerations, the Court should bear in mind that it had not previously been the exhaustive place, and at least the people who made the regulations did not think it would continue to be the exhaustive place.  So that is our answer to that point.  Now, if I move on to ‑ ‑ ‑ 

STEWARD J:   Just before you move on, do you want to say something about the argument Mr Walker presented yesterday, that Parliament, by enacting these rules as regulations, was intending for the regulations thereafter to have the same relationship with the Act as regulations normally would?  That is, that they intended it to have a subordinate role?

MR LLOYD:   Well, we say that they were – I mean, I think the extrinsic material supports the view that they were enacted because it was part of the deal with the Senate; they wanted to know what the criteria would be.  That is why it was in the legislation – that Parliament was actually interested in terms of it, and they wanted to actually approve the terms of it.  I accept that it was put in the regulations rather than in, for example, section 36, so that there would be a facility later to amend it by regulations.  But I do not accept that – I mean, in that sense, I suppose, it has the ability to be amended by a regulation rather than by another Act.

STEWARD J:   So, you reject the subordinate argument?

MR LLOYD:   I reject the argument that because it is put into the regulations, that means that the regulations can be inconsistent with the balance of the Act and, therefore, not operate in their normal and full way.  It was the intention of Parliament that they be the regulations and if there was to be any inconsistency, then the normal rule about the later overriding the earlier should prevail.

The next argument – or, if the first argument advanced by my friend in relation to the – when it was an inconsistency argument – pose section 36(1C) and 501(3) together.  I understand that that maybe now has shifted a bit, so I will address them one at a time.  Section 36(1C) is at page 84 of the joint book.  It specifies two negative criteria for protection visas.  The applicant must not have the specified features in order to be eligible for a protection visa.  Those criteria in (a) and (b) are drawn from the Refugees Convention and, in particular, they are drawn from Article 33(2) of the Refugees Convention.  That is significant because they are not part of the definition of who is a refugee, they are part of identifying who is not owed non‑refoulement obligations. 

So, even refugees who breach (1C) are not entitled to a non‑refoulement obligation.  So, that is the function of (1C) and when I get to 197C, you will see it more clearly.  But 197C plays a critical role because you can be a person who is not a refugee just because you do not have a well‑founded fear of persecution, in which case you could be sent back to your home country.  But you could be somebody who is found to have a well‑founded fear of persecution in say, Iran, but breach Article (1C) – not comply with Article (1C).  In that case, you are not owed a non‑refoulement obligation and the effect of 197C is that you can still be returned to Iran.  Even though you are a refugee, there is no non‑refoulement obligation and the duty to remove applies.

So the function of (1C) is not simply, are you entitled to a visa.  It is not Parliament saying, we have decided who should and should not get protection visas and this is an exhaustive addressing of what criminality is too much or too little.  That is not what it is.  It is an assessment of – or it is a provision which will lead to a finding being made as to whether or not the person in substance is owned non‑refoulement obligations.  Of course, you will also not get a protection visa, but that is just one aspect of the function and it is not a full and complete understanding of it to put it in the way my friend put it.  Perhaps it is convenient to go to 197C now just on that point.  It is in the same bundle at page 103.

GAGELER J:   As you do, Mr Lloyd, does this submission mean that 36(1C) overlaps with 36(2)(a) or are they quite distinct?

MR LLOYD:  I think they are intended to be distinct in the sense that the protection obligations being referred to there, I think, pick up the definition of “refugee”, not directly, because all of the references to the Convention have been removed from the Act, but conceptually you fall within (2)(a) if you fall within the definition of “refugee” as modified or understood by the Act.  Subsection (1C) is to say, well, even if you did fall within (2)(a) – so it depends what your Honour says where the overlaps are.  I accept that somebody could meet (2)(a), but not meet (1C).  They would not get a visa and they would be able to be refouled to their country where they fear persecution.

GORDON J:   That is explicable, is it not, by the way in which 36(1A) works.  You have to satisfy both, because you have to satisfy one of two.

MR LLOYD:   Indeed.  So, I was going to 197C just to explain how that now interacts.  Maybe I should note the history of it is that prior to about 197C being enacted, which was around 2015, the Department had taken the view, and had a policy anyway, of not refouling people who were owed non‑refoulement obligations, even if they were not granted visas, but it was only a policy.  There was not equivalent of 197C.  But at the time that Al‑Kateb was decided that was the position.  It came in about 2012 or thereabouts to be clearly the position of the Full Federal Court and of this Court – and I will give the Court a reference to that later – that the Act is intended to ensure that people are not refouled in breach of the non‑refoulement obligations.

That seemed to have not rung a bell with the Parliament, and so they introduced the original section 197C, which made whether or not you are owed non‑refoulement obligations irrelevant.  And that meant that they could – and the significance of them being relevant is that it mandated, in effect, everybody who had a protection claim being considered at a time when the Parliament did not want to consider everyone – if they came by boat they did not want to have to consider it.

So that 197C was an answer to that, but that led to other problems, which led to this current form of 197C; which is to say, everyone who is not granted a protection visa has to be removed, but we will not remove people to the country they fear persecution from if there is something called a protection finding, and so one sees that in 197C(3)(b).  So, there is only one country that the effect of 197C – there could be more than one if you are a refugee from more than one country – but in the vast majority of cases, it is one country.  Of all the countries in the world, there is still a duty to remove you to any country, except the one country – and that is because of the effect of (3)(b) – and then if I take the Court to subsection (5 )to the definition of a protection finding, and one sees there, for example, in (a) that:

a protection finding is also made for a non-citizen with respect to a country if the Minister was satisfied of any of the following . . .

(a)the non-citizen satisfied the criterion in paragraph 36(2)(a) with respect to the country and also satisfied the criterion in subsection 36(1C) –

Now “satisfying”, it means that they did not have the crime.  So that would mean that they were not excluded, but if you do not satisfy 36(1C), even though you do satisfy 36(2)(a), then 197C does not bite, which means that section 198 still requires your removal to your country of origin, where you may fear persecution.  That is the way section 197C works.

KIEFEL CJ:   I see the time, Mr Lloyd.  It might be convenient.

MR LLOYD:   Certainly, your Honour.

KIEFEL CJ:   The Court will adjourn for 15 minutes.

AT 11.18 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.31 AM:

KIEFEL CJ:   Yes, Mr Lloyd.

MR LLOYD:   Thank you.  So, I have just taken the Court to 197C, but if I can now go back to section 36 on page 84 ‑ ‑ ‑ 

GORDON J:   Mr Lloyd, would you mind just speaking up a bit, please?

MR LLOYD:   Sorry.  I am going back to section 36, which is on page 84.  It may be observed that (1C) is in very different terms to clause 227.  We say it is plain that section 36 is not exhaustive of protection visa criteria.  We get that from section 355(6) which says:

The criteria for a class of protection visas are:

(a)the criteria set out in section 36; and

(b)any other relevant criteria prescribed by regulation for the purposes of section 31.

We say it is clear and a legislative intent that the Parliament can add extra criteria and, of course, every extra criteria is a potential reason to refuse a protection visa to somebody who is owed a non-refoulement obligation.  That does not mean that we will refoul them, it just means that the decision is made that they do not get a protection visa or that particular kind of protection visa, as the case may be.

We say there is nothing that prevents clause 227 and (1C) operating cumulatively.  They arise from different sources; they do different things.  Subsection (1C) identifies people who are not owed non‑refoulement obligations.  Clause 227 can extend to persons who are owed non‑refoulement obligations but in respect of whom the Minister is not satisfied should be given a protection visa.

The Minister might have in mind that they should have some other kind of visa.  The Minister might have in mind that they should be removed to a safe third country or be detained pending such removal.  The point is that the provisions are capable of serving different purposes, therefore the existence of subsection (1C) does not preclude the making or the unqualified operation of clause 227.  Likewise, the making of clause 227 does not detract from the operation or ambit of subsection 36.

Now, before going to section 501, let me address some of the matters raised in oral submissions yesterday.  A submission was advanced that subsection (1B) and (1C) must be understood to take bites out of the scope of the work done by 227.  It was submitted that subclause (1C) should be understood as the Parliament expressing a balance.  That balance is that the Parliament wants every refugee who has not committed a so‑called “particularly serious crime” to be eligible for a protection visa.

We say that that cannot be correct because there are a range of criteria that might stop that grant.  The health criteria, for example, would stop the grant.  Perhaps the balance is better understood more favourably to the plaintiff if the Parliament wants every refugee who has not committed a “particularly serious crime” not to be ineligible for a protection visa by reference to any other kind of crime.  But we say that Parliament has clearly not drawn that balance either because section 501 empowers the refusal of a protection visa by reference to a whole lot of crimes that do not fall within the scope of “particularly serious crime” in section 5M.  So, that is also not a plausible explanation of what (1C) is.

We say that subsection (1C) was not intended to set a threshold for when crimes can be taken into account.  It is a criteria for just two things.  First, a threshold establishing that crimes of that kind preclude a grant of a visa.  So, it is certainly clear that crimes of that kind will exclude somebody getting a protection visa.  So, even if there is a Minister who has an incredibly robust view – or maybe weak view, depending on the way you look at it – of the national interest and would think that even those crimes are not a threat to Australia’s national interest, that does not matter because that is a statutory‑prescribed minimum standard for exclusion of a protection visa.  That is actually how (1C) works.

Then, of course, there is the second function which is identifying the persons who are not entitled to a non‑refoulement obligation.  We say it does not have an effect on clause 227 – that has been said.  The courts, we say, can have no doubt that it does not have that effect.  The Parliament chose to insert clause 227, which is an express conferral of duty to decline a grant – to grant a visa unless satisfied that it is in the national interest.  That is a clear indication of the parliamentary intent that that would be something that could be taken into account and that Parliament has chosen such a broad expression.

The next point raised yesterday was that my friend embraced the proposition of the word “other” in section 35A(6)(b) carried with it an implication that such a criterion could not prescribe any overlapping criteria.  We say that that is not a natural meaning of the word “other” and that the word is just referring to criteria other than the one in the previous subsection, which are the ones that are already prescribed by the Act at section 36.  But, in any event, even if it had that strained meaning, that would only be a constraint on section 504 in the making of regulations.  It still was not a constraint on the Parliament making overlapping criteria.  So, to that extent, it still, we say, does not assist the plaintiff.

Then we say that they can operate cumulatively – has been established in authorities, or at least criteria of this kind.  If I can the Court to a couple, and give references.  The first one is a decision called VWOK v The Minister – it is in volume 8 of the supplementary book, starting on page 2319 – it does not start on page 2319 – on 2319 there is a passage extracted from the first instance decision of Justice Crennan ‑ ‑ ‑

JAGOT J:   Sorry, have you got the tab number?

GORDON J:   Tab 63.

MR LLOYD:   Tab 63, thank you, your Honour.  So, in paragraph 18, there is a long extract from Justice Crennan’s reasons at first instance.  We embrace all of that but draw particular attention to the third paragraph – and then in paragraph 19, what the Full Court says there, that these – now, I accept that they are talking about different provisions, but a similar issue arises – similar arguments, which were rejected – a sort of overlapping, biting‑down thesis.

As to section 501H, part of the argument concerning – as we heard the argument, concerning the appropriateness of cumulating or adding criteria from different parts of the scheme, could I draw to attention that at least in 501H the reference is to powers to be found in “this Act”, which obviously enough does not include 227.

GORDON J:   Is that because it is a criterion for ‑ ‑ ‑ 

MR WALKER:   Yes, so 501H makes it clear that 501(3) does not shrink other things; it is in addition to other powers in the Act, but it has got nothing to do with – it casts no light on the matters concerning 227, upon which we have addressed the Court.

A small matter only in an exchange between Justice Gageler and my friend concerning the operation of subsection (3) of section 197C.  Our position is that if there were a case where, to use the language, the criterion in 36(1C) was not satisfied, it is not the case that that would therefore preclude 197C(3) operating.  And I think attention has already been drawn, in any event, let me specify it, to subparagraph 197C(5)(d)(i) in that regard.

To clarify, my friend may have seen in the way we have argued concerning the migration offences in the Act – 233A to 234A – as in themselves, that is, in their own self‑contained form, providing a basis for the argument that we put about 227 not being available – that, of course, is not the way that we put it.  It is because of what 36 and 501 do about matters of crime, including those offences, that we have put what we put about 227.  So, no, of course we do not say, simplistically, because an offence with a penalty provision is where you look for the penalty for the offence, that is an end for the possibility of invoking national interest in an administrative decision, a non‑criminal decision to which the conviction and punishment may become relevant.  That is not the way we put it.

As to Djalic, it is of course a somewhat different argument in that case, and the matter that we principally point to is that in Djalic paragraph 75, propositions, axiomatic as it were, are put concerning the nature of deterrence in this kind of administrative decision-making and, by contrast, in relation to crime.  In our submission, caution should be applied in an understanding of those statements.  They are, in our submission, somewhat overstated – that is, they would require qualification in other contexts.  They may even be wrong if they are just taken as complete blanket statements said to be always true.

What really matters, however, is that it is not the adverse decision being a deterrence but the combination that is explicit for the Minister and, in any event, blindingly obvious on the face of the scheme, that if there is a refusal there will be continued and indefinite detention.  That is the matter that gives rise to the question whether that transforms the quality of the detention, bearing in mind what we have argued about 197C.  We do not attack the validity of 197C, as your Honours appreciate, we turn it to account.

Your Honours were, I think, told by the Commonwealth that the better view is that PIC – public interest criteria – 4001 was not considered but, in our submission, that is probably unfair to the Minister.  PIC4001 concerns, as your Honours know about each of the four possibilities in it, a relation with the character tests, which is 501.

So, the not inclined, decision by the Minister, to invoke 501 as the route of refusal is, of course, addressing and addressing entirely appropriately, PIC4001.  The significance is, of course, that the repeated statement that there is no reason to doubt by the Commonwealth that all criteria other than the contested clause in the regulation, were satisfied, obviously does include 4001.  There should be no phantom prospect that floating out there was an undetected defect in the decision‑making – namely, a failure to consider 4001.  That is not the case.

Finally, could we respectfully suggest that too much ought not to be made of the capacity by paraphrases and the like to draw a supposed distinction between deterrence on the one hand and absence of encouragement on the other.  An absence of encouragement – a discouragement – is obviously pretty similar to a deterrence.  And particularly, when it is a relative position, such as is produced when what one sees, as the Minister plainly had in mind, that the plain difference in a person’s life and prospects between having a visa and not having a visa, there is the relative position, and it is quite plain that the avoiding of somebody being named to have got a visa is in order to prevent that appearance from encouraging the kind of offending our client was convicted and sentenced.

That, of course, amounts to a form of deterrence to others, but most particularly for our argument – that is not the central element of our argument – most particularly it shows that the invocation of 227, national interest, for that purpose is, in effect, saying it is not in the national interest to grant, given this criminal history, notwithstanding the statutory provisions upon which our argument is based, shows, as plainly as possible, explicitly, that Parliament thinks that is a possibility that ought to be within the consideration of decision makers.  And there is the jarring difference or contradiction or undermining of the purported reading of 227, which, in our submission, demonstrates the error of the Minister resorting to it.

May it please the Court.

KIEFEL CJ:   Thank you.  The Court reserves its decision in this matter and adjourns to 9.30 am tomorrow for pronouncement of orders, and otherwise to 9.45 am.

AT 3.37 PM THE MATTER WAS ADJOURNED