ENT19 v Minister for Home Affairs & Anor

[2022] HCATrans 214

[2022] HCATrans 214

IN THE HIGH COURT OF AUSTRALIA

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 THURSDAY, 8 DECEMBER 2022, AT 10.01 AM

Copyright in the High Court of Australia

MS L.G. DE FERRARI, SC:   May it please the Court, I appear with MR J.D. DONNELLY and MS E.A.M. BRUMBY for the plaintiff.  (instructed by Zarifi Lawyers)

MR S.B. LLOYD, SC:   May it please the Court, I appear with MS A.M. HAMMOND and MR J.G. WHERRETT for the Minister and the Commonwealth.  (instructed by Australian Government Solicitor)

KIEFEL CJ:   Yes, Ms De Ferrari.

MS DE FERRARI:   Thank you, your Honour.  Your Honours, what I propose to do is spend a little bit of time at the start going through a number of documents which set out the factual material.  This is, of course, in the original jurisdiction and it is on primary material, so I need to take the Court to some documents, there being no judgment and no statement of agreed facts, so to speak.

KIEFEL CJ:   I noticed that you filed with your outline a chronology, which is very helpful in terms of the factual background. 

MS DE FERRARI:   Yes.

KIEFEL CJ:   This case turns really on points of law.  Is there a need to go to the ‑ ‑ ‑

MS DE FERRARI:   Well, your Honour, the question of whether the decision – what was the purpose the decision is one of characterisation of the decision itself, having regard to all the relevant material.  So, to that extent, it is not purely a question of law.  The other points – that is, one that I need to take the Court to some factual material – is the question of whether there was a denial of procedural fairness where it arose because there was no notice whatsoever about a particular matter being taken adversely by the Minister against the interests of the applicant.

GORDON J:   Can I ask one question just about it.  The moment it – I understand that that is the way you put it, but is not one of the first questions for the Court the source of the power?  So that here – give me five minutes – the source of the power, as I understand it, is the regulation clause 790.227, on the basis that the Minister accepts, as I understand both the papers and his submissions, that no other criterion prevents the grant of a visa.  And so that your focus then has to be on this clause – which is the regulation power – which then turns you – I think, I hope – in the sense that one questions what the source of that regulation is – the source of power.  And that is section 504, is that right?

MS DE FERRARI:   The power to make regulations is section 498, I think, from memory.  This is just a general regulation for the purposes of the visa.  Or it might be there is now a power under section ‑ ‑ ‑

KIEFEL CJ:   I think the point Justice Gordon is trying to take you to is that the decision here hinges entirely upon the application of the criterion of the national interest, which appears in the – rises from the regulations, the criterion.

MS DE FERRARI:   That is correct.

KIEFEL CJ:   And if that is what it entirely hinges upon, is that not a first port of call in terms of looking to whether or not there is anything in the legislative scheme which throws light on whether that regulation is valid or invalid?

MS DE FERRARI:   Yes.  I understand how your Honour is putting it.

KIEFEL CJ:   There, section 501, amongst others, may come into play because if one looks at how the question of the national interest is approached in the broader statutory scheme, it may give rise to a question about whether it should be in the regulations, or whether being in the regulations and being capable of being utilised as a criterion both by the Minister and a delegate, that there is not some difficulty, if not an inconsistency, arising.

MS DE FERRARI:   Yes, I apprehend how your Honour is putting it and I will gladly add that argument to the arguments that we have advanced, in the sense that ‑ ‑ ‑

KIEFEL CJ:   Having said that, you have not directly challenged the regulation.  It does not appear in any of the papers.  This is a matter the Court is raising – to be frank, the Court is raising with you.  If, at this point, you have not taken any point about the validity of the regulations, I just wonder whether you might benefit from a short adjournment to consider and perhaps discuss with your legal team about whether this is something that you would wish to argue.  If you did, it would mean an adjournment, almost certainly, but you might wish to weigh up whether or not it is worth taking that course.

MS DE FERRARI:   Yes, your Honour, I will take the brief adjournment.  Ultimately, your Honour, the principle is about whether regulation is ultra vires or intra vires – the regulation‑making powers are fairly clear.  So, it would be just a question of considering whether, having regard to the scope of section 501 and the other powers in Part 9 ‑ ‑ ‑

KIEFEL CJ:   And other powers, yes.  Where the national interest is mentioned.

GORDON J:   I think it raises those questions about a question of statutory construction, including the prescriptions and limits that one finds, especially in 501(3), which deals with the Minister’s personal power being in relation to national interest and where it sits within the section 65(1)(a) criteria, because under (2), one has this regulation; under subsection (3), one has 501(3).  So, one sees that there is a possibility of inconsistency.

MS DE FERRARI:   Yes.

GORDON J:   But then there is a broader question, too, possibly, about the broader scheme of the Act in the way in which the Act deals with national interest criterion and the nature of the power to be exercised by the Minister in relation to that power.

MS DE FERRARI:   Yes, your Honour.  Your Honours know from the chronology that there was a previous attempt on relying on section 501(1) and, currently, the Minister says – although the advice is redacted, the Minister says 501, in all its subsections, is just not viable.  So, if the argument is correct that the power under section 65 is just not able to pick up a criterion that relates on the national interest, that would be the end of the matter against the Minister.

KIEFEL CJ:   If you wish to take an adjournment to consider your position ‑ ‑ ‑

MS DE FERRARI:   If I can take a short adjournment to get instructions.

KIEFEL CJ:   I think if you were going to take that course, you would need to be in a position to articulate what it is – what you would say about the regulation.

STEWARD J:   Can I raise just another issue for you to think about during your adjournment.  That is, I think I get from your submissions the proposition that because of section 197C(3), the new provision which we did not have in AJL20 – I think this is what you are saying but perhaps you can think about this – that the characterisation of your client’s detention is now different and has ceased to be for deportation.

MS DE FERRARI:   Yes.

STEWARD J:   Again, it is not for the purposes of processing his application which has come to an end, so therefore you say, without suggesting that 197C(3) is invalid, the effect of that new provision is the character of the detention changes.  Is that how you put it?

MS DE FERRARI:   That is partly how we put it.  What we tried to highlight is that your Honours are now seeing this case, unlike AJL20, at the point in time where the Minister is on a precipice.  Either she uses the power in section 65 and only by reference to the criteria in clause 790.227 or the plaintiff gets a visa.  So, it is really at that point that, in a sense that we have put it, it is almost like she is looking at whether she is going to create another period of detention by reason of the ‑ ‑ ‑

STEWARD J:   But just so we are clear, do you say that because of the law change we must characterise the detention as punitive and therefore illegal?

MS DE FERRARI:   That does change the characterisation, because one aspect of the reasoning of the majority in AJL20 – that is, the hedging of the duties – is not there anymore – at least 90 per cent not there.  It is only there in respect of safe – so, it is third countries ‑ ‑ ‑ 

KIEFEL CJ:   But the question that you do not really deal with in your submissions is whether or not the fact that the statutory regime has changed; what the outcome of that is for the person in the position of the plaintiff.  You do not sort of take the argument to its conclusion.

MS DE FERRARI:   No, no, because we focus ‑ ‑ ‑

KIEFEL CJ:   Perhaps you might think about that laterally and focus, in the first place, upon the matter was first put to you about the regulation.

MS DE FERRARI:   Yes, your Honour.

EDELMAN J:   The two points are not unrelated, because one needs to consider the first point to consider what the scope could possibly be of a regulation concerned with the national interest when there are particular restrictions and particular manners of application for that very same criteria in the Act itself.  Then, once that is determined, that then may then open up the further questions that have been raised.

MS DE FERRARI:   Yes, your Honours.  I will definitely take the adjournment, but your Honours might know that the national interest criterion has been in every protection visa class for many, many years, and your Honours would have seen from the papers that the typical approach is that the delegate never touches it, considers it always satisfied, and this is the only time that, really, there has been a decision by the Minister upon that clause.

GAGELER J:   When does it go back to, Ms De Ferrari?  You said “many, many years”.  How long, do you know?

MS DE FERRARI:   Sorry?

GAGELER J:   How long has the criterion been in the regulations?

MS DE FERRARI:   To my knowledge and memory, it has been in the various forms of protection classes – like class 866 and so on – as long as I can remember, but we will track it down, your Honour.  It has always been there; it has always been inactive because section 65 decisions are done by a delegate and the delegate is considered not sufficiently important to consider ‑ ‑ ‑

KIEFEL CJ:   I suppose that means if an argument were developed, the legislative history would have to come into play as well with the other provisions coming in. 

MS DE FERRARI:   Yes, yes.  It may well be.  I will consider that, of course, your Honours. 

KIEFEL CJ:   The Court will adjourn until 10.45 am unless there is a request for a further extension.  If there is a request for a further extension, we will consider it, but otherwise we will adjourn until 10.45 am.

AT 10.13 AM SHORT ADJOURNMENT

UPON RESUMING AT 10.45 AM:

KIEFEL CJ:   Yes, Ms De Ferrari.

MS DE FERRARI:   Your Honours, thank you for the opportunity to obtain instructions.  I wish to make an application to adjourn in order to allow us to file an amended application that adds this new ground and file submissions in support of that ground.  If the Court pleases.

KIEFEL CJ:   When you say “this new ground”, that is the ground relating to the regulations?

MS DE FERRARI:   That is the ground relating to validity of the regulation.

KIEFEL CJ:   So that there would not be any further questions, you would turn your mind to the section 197C question?  That is a matter for you.

MS DE FERRARI:   To the extent that 197C affects the question of validity, that would be encompassed in that question.  We have turned our minds to it, but I think we have to clearly engage our minds harder on that question.

KIEFEL CJ:   I quite understand that, yes.

MS DE FERRARI:   But the issue would be – it is the regulation within power in the particular statutory context which we face at the moment.

KIEFEL CJ:   When you say “within” – within power, yes, I see.

MS DE FERRARI:   If the regulation is not within power, then that criterion cannot validly apply to the grant of a protection visa.

KIEFEL CJ:   Are you saying, though, that there is no constitutional head of power in relation to it or that it cannot stand if it is inconsistent with the balance of the statutory scheme?

MS DE FERRARI:   It would just be a question of – as I understand it at the moment, it would be a question of inconsistency with the statutory scheme; that is, the statutory power which is at section 31 of the Act to make regulations providing for further criteria of visas, including protection visas in section 35A, would not be permitting the making of a regulation that attaches a condition of ‑ ‑ ‑

EDELMAN J:   I think the source of power to make regulations is ultimately 504, is it not, not 31?

MS DE FERRARI:   There is a more specific one in section 31 that applies to criteria for the visas.  But it might be 504 that – as I apprehend the statute at the moment, section 31 is a more particular regulation‑making power, providing for criteria for the visas, but ‑ ‑ ‑

GORDON J:   I think you might need to look at that.  I think 504 might be the source of the power to make the regulations, but the topics of it are found elsewhere.

MS DE FERRARI:   Yes, your Honour, I am grateful for that indication.  Obviously, I am doing it on my feet and I am not doing a very good job, which is why an adjournment is probably a very good idea.

KIEFEL CJ:   I should hear from Mr Lloyd.

MS DE FERRARI:   Yes, of course, your Honour.

KIEFEL CJ:   Mr Lloyd, there is an application for an adjournment.

MR LLOYD:   My kamikaze instinct is weak today, so we will not oppose that adjournment, your Honour.

KIEFEL CJ:   You are bowing to the inevitable, Mr Lloyd.

MR LLOYD:   We understand that the Court has already got sittings fixed in February, and we have had some discussions with my friend.  We have thought, if they put on their application and amended submissions by mid‑January – and I note that is a date they asked for ‑ ‑ ‑ 

KIEFEL CJ:   Are you trying to – towards the March sittings, is that what you were intending to try to do?

MR LLOYD:   And we would do ours in mid‑February, and then they would do a reply and head towards the March sittings, if that is suitable to the Court.

KIEFEL CJ:   All right.  Could I suggest this, because I think a little more is necessary than just looking at – I thank the parties for attempting to identify a timetable, but I think some further wider discussion is probably necessary about the content, and there will be some management necessary between now and February.  With that in mind, Justice Gageler is available to conduct a directions hearing today at 12 noon, if that is convenient to the parties.

MR LLOYD:   Certainly.

KIEFEL CJ:   His Honour can then manage the matter towards a possible hearing in March.

MR LLOYD:   Thank you, your Honour.

KIEFEL CJ:   The Court will now adjourn until 9.45 am tomorrow.

AT 10.50 AM THE MATTER WAS ADJOURNED