FEL17 v Minister for Immigration, Citizenship and Multicultural Affairs

[2024] HCATrans 87

[2024] HCATrans 87

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S107 of 2024

B e t w e e n -

FEL17

Appellant

and

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

Respondent

GAGELER CJ
GORDON J
STEWARD J
GLEESON J
JAGOT J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 6 DECEMBER 2024, AT 9.59 AM

Copyright in the High Court of Australia

MR D.H. GODWIN:   May it please the Court, I appear for the appellant with MS B.M. FLAHERTY.  (instructed by Herbert Smith Freehills)

MR P.M. KNOWLES, SC:   May it please the Court, I appear with my learned friend, MS K.N. HOOPER, for the respondent.  (instructed by Australian Government Solicitor)

GAGELER CJ:   Thank you.

MR KNOWLES:   Whilst I am on my feet, might I formally seek an order amending the name of the respondent to the Minister for Immigration and Multicultural Affairs.

GAGELER CJ:   Yes, you have that order.

MR KNOWLES:   If the Court pleases.

GAGELER CJ:   Mr Godwin.

MR GODWIN:   Thank you, your Honour.  Your Honours will have seen from the oral outlines that this remains a fairly narrow dispute between the parties:  the interaction between section 417 and section 48A of the Migration Act.  The court below held that the grant of a visa under section 417, which is what happened in this case, did not affect the legal consequences of the delegate’s initial refusal of the appellant’s protection visa application because that refusal continued to have legal effect in its own right and, therefore, the bar under section 48A remained in place.  So, your Honours will be aware that after my client was granted the visa he sought a further protection visa and the delegate held that section 48A barred that.

We say that the majority judgment in the court below was erroneous for two reasons.  The first is that it does not accord with the plain reading of section 417 of the Migration Act in its legislative purpose to override the outcome of the merits review process, and necessarily, we say that that overrode the delegate’s decision.

The second reason we say that the majority was in error was that when the tribunal affirmed the delegate’s decision, that became the source of legal power of the delegate’s decision so that when the tribunal’s decision was substituted by the Minister, the legal effect that the tribunal decision had given to the delegate’s decision was removed so that the delegate’s decision no longer had legal force.

GAGELER CJ:   They are alternatives, are they?  If you are right on the first one, we do not to bother with the second one.

MR GODWIN:   That is correct, your Honour, yes.  So, turning to the first one, which is what we call the section 417 as an override power, picking up some words from Justice Edelman in the case of Davis.

First, we say that this is the first case the Court has had where the power under section 417 has actually been exercised and the Court is considering the consequences of that exercise.  However, previously, in Plaintiff M79, the Court looked at another dispensing power, section 195A of the Migration Act, which allowed the Minister, in the public interest, to grant a visa to a person who was held in immigration detention where he thought that it was in the national interest to do so.

In that case, the Court affirmed the very broad scope of matters the Minister could take into account when considering whether it is in the public interest to grant a visa where the public interest was the only matter which bore upon the grant of the visa.  So, the normal criteria for eligibility for that particular visa were not matters that the Minister had to take into account; the only thing he had to take into account was the national or public interest.

There is no reason to suspect that matters that the Minister could take into account in the public interest when considering his exercise of power under section 417 should not be equally as broad as what was found by the Court in M79, was the case under section 195A.  The dispensing powers, of which 417, now repealed, was one, are extraordinary powers, and it was first considered in that group of dispensing powers by this Court in Plaintiff S10/2011.  When one goes to the explanatory memoranda of when section 417 was first inserted into the Migration Act, it was, in fact, in the explanatory memoranda, described as an “extraordinary power”.

The extraordinary nature – and your Honours have recently considered section 351, which is materially the same, in the case of Davis, so you are well aware of the substance of the power – but we can just point out these features make it an extraordinary power.  It can only be exercised when it is found to be:

in the public interest to do so –

it allows the Minister to grant a visa even though the applicant had not applied for one, and even if the tribunal or the delegate did not have power to make a grant of a visa of that type.  The decision must be “more favourable” than the decision that is being replaced, and it can only be exercised by the Minister administering the Migration Act or a Minister authorised by that Minister to exercise that power.  This Court in Davis recently emphasised the personal and non‑delegable nature of the power.

Where the power is exercised, the Minister must provide a written statement to Parliament, and this has been described as a specific form of accountability by the Court in Plaintiff M79.  Although we refer to M79 and the Court’s discussion of the power in section 195A, it is important to realise that section 417 is a different sort of power to 195A in the sense that section 195A is the power to just grant a visa for the future, whereas section 417, in its terms, is a power to substitute the existing exercise of power by the tribunal.

So, the power in section 417 can only be exercised once the tribunal has completed its review and where it is in the public interest to provide a more favourable result.  So, the exercise of power under 417 is exercised at the end of the administrative continuum between the delegate and the tribunal.

The fact that the tribunal result is substituted is critical.  This means that the outcome of the tribunal’s review has been set aside and a new decision has been put in its place – and this is one of the areas of contention between the parties – our case is where you are just substituting a more favourable decision, you do not need to have a separate setting‑aside decision because the effect of substitution is to set aside for the future, which is distinguishable from the tribunal, where it may need to set aside a decision which it considers was not the best decision, in that it was not a correct and preferable decision under the legislation before it then imposes the decision it says it was the correct and preferable decision, and that is why we say only “substitute” is used in section 417.

But we do say that when the Parliament enacted the subsequent provision in section 501J of the Act, that was a provision which was, according to the explanatory memoranda, supposed to equate to section 417 in relation to tribunal decisions by the AAT at the time when there were three tribunals effectively:  the MRT, the RRT and the AAT.  When they enacted 501J for that purpose, they did actually use the words “set aside” as well as “substitute”, and the explanatory memorandum makes it clear that that was supposed to do the same job as what the existing 417 did.  So, we say Justice Snaden in the court below rightly held that:

Once the process is substitution contemplated by s 417(1) transpires, the only decision with any operative effect under the Act is the decision made under that section.

We say that is the natural consequence of a substitution.  It follows, we say, that the delegate’s decision had no continuing legal consequence.  We would compare this to what happens in relation to section 501A of the Act, which is another dispensing power under the Act.  That power was closely considered by this Court in Makasa quite recently and it was the subject of the decision of the Full Federal Court in Madafferi, which is referred to in the parties’ submissions. 

The operation of section 501A is triggered where the Minister considers that a decision of a – where there has been a delegate’s decision – sorry, I should start again.  There are a number of ways 501A can be available, but the one I wanted to focus on is one where a delegate has decided on character grounds to refuse a protection visa, the tribunal has then set aside the delegate’s decision, and the Minister then decides that it is in the public’s interest to set aside the tribunal – or substitute, I should say, the tribunal decision, or set aside the tribunal decision and substitute a refusal decision.

So, you have two refusal decisions:  you have the original refusal decision by the delegate, you have that set aside by the tribunal; and then you have another refusal decision by the Minister acting under his intervening power.  We say in those circumstances it would not make sense to say that the delegate’s refusal decision continued to be a refusal decision for the purposes of section 48A because of that process.  It is clearly the Minister’s decision to refuse the visa under 501A that is the refusal for the purposes of section 48A.

We say that, by parity of reasoning, where, under section 417, the Minister has substituted the tribunal decision, it does not make sense to say that the delegate’s decision refusing the visa retains any legal effectiveness in terms of section 48A.  We say that that would fail to give proper consideration to the parliamentary intention and the Minister’s decision to intervene to substitute a new, more favourable decision.

We say that this is not inconsistent with the statutory purpose of section 48A.  That is set out in the explanatory memorandum, being:

to stop the use of repeat applications for protection visas by non‑citizens to delay their removal and to circumvent the immigration requirements of Australia.

We say that is not subverted because section 417 could only be exercised by the Minister personally, and he has direct accountability to Parliament because he has to explain, in a separate document which is tabled in Parliament, as to why he exercised that power.  In those circumstances, there is no harm to the legislative purpose of section 48A.  That completes the submissions in relation to the first way we put the argument.

The second way we put the argument is that when the tribunal reviewed the original protection visa refusal, it did over again what the delegate did.  This Court in a number of cases – Makasa, Frugtniet and Shi – have confirmed that that was what the role of the tribunal is.  The tribunal’s exercise of power under section 415 is a new exercise of power which considers the same questions the delegate did but makes a new decision under section 415, affirming that decision.  That is what happened in this case – it could do other things, but that is what happened in this case.

This Court has held that when the tribunal exercises its power under section 415 to affirm the delegate’s decision, that the legal force of the delegate’s refusal decision is then supplied by the tribunal decision, and that is what was held by this Court in Plaintiff M174 at paragraphs 70 and 92.  We submit that it would be inconsistent to conclude that, nevertheless, the delegate’s decision had independent legal consequences for the purposes of section 48A.  The delegate’s decision has been subsumed into the tribunal decision in the exercise of its de novo review power and unless that tribunal decision itself was invalid, the delegate’s decision cannot regain its independent legal force.

GAGELER CJ:   What are the words in section 48A we are concerned with – “has been refused”, is that right?

MR GODWIN:  

has been refused –

GAGELER CJ:   Yes, “has been refused”.

MR GODWIN:   We say that that means a legally effective refusal.

GAGELER CJ:   Why is that legally effective, if it has been affirmed by the tribunal?

MR GODWIN:   It certainly is, your Honour, but once the tribunal affirms it, it provides that legal force.  So, once the tribunal decision itself is substituted, that legal force falls away.

STEWARD J:   Does that mean section 48A is turned off, if I can put it like that, in every case of the tribunal affirming a decision of a delegate?

MR GODWIN:   No, your Honour.  We say that where the tribunal affirms the decision of the delegate, it provides the legal force for the refusal.  The refusal remains the refusal by the delegate, but its legal force is by the tribunal.

GORDON J:   Is that reinforced by what is in the parentheses:

(whether or not the application has been finally determined) –

So, in 48A, as I read it: 

Subject to section 48B . . .

(a)an application for a protection visa, where the grant of the visa has been refused (whether or not the application has been finally determined) –

or not finally determined.

MR GODWIN:   It is, your Honour, that issue came up before the Federal Court in the case of Al Tekriti.  The factual circumstances there were that the applicant applied for a protection visa; the delegate refused that application; the tribunal set aside the delegate’s decision; the applicant then applied for a different visa – a spouse visa – but when the tribunal had set aside its decision, it remitted it to the delegate for reconsideration, so there was a still extant protection visa application which had been refused but not finally determined, notwithstanding that the refusal itself had been set aside, so the Minister argued, that is what those words mean, that in this case, 48A is still triggered.  Justice Mansfield rejected that argument because the delegate’s decision no longer had legal force, because it had been set aside by the tribunal.

Unless your Honours have any other questions, those are the submissions for the appellant.

GAGELER CJ:   Thank you, Mr Godwin.  Mr Knowles.

MR KNOWLES:   May it please the Court.  Our oral outline is perhaps a little long to deal with what is a very short point, and, in my submission, my learned friend is correct to say that the critical question is what it is meant by substitution of a decision or substituting a decision of the tribunal with a decision of the Minister.  That is a point which I will come to.  It is dealt with from paragraph 8 of our oral outline.

But regardless of which of the two arguments brought by my learned friend are put, the answer, in my submission, lies in understanding that the substitution of the Minister’s decision for the decision of the tribunal is not the same as setting aside the decision of the tribunal.  It is not the same in the strict words of the provision and, importantly, it does not mean that all legal consequences of the tribunal’s decision are eradicated.

I will come to that, but before I do, I want to just – going on from the question that your Honour Justice Steward asked my learned friend – set out what I think are uncontroversial propositions between my friend and I – they reflect paragraphs 2 to 4 of our oral outline – that in the sequence of this case there is no doubt or no dispute that the preclusion or the bar in section 48A applied immediately upon the delegate’s decision refusing the protection visa, because the bar in section 48A applies whether or not the application has been finally determined, which goes to the language that your Honour Justice Gordon highlighted to my learned friend.

There is also no dispute between us that immediately after the tribunal affirmed the delegate’s decision, that bar continued to apply, and the only issue between us is whether the bar is disapplied by the exercise of the power under section 417, and that is what drives or reduces the question in this case to a proper understanding of the power in section 417.

Can I, just before getting to that question, say something about the nature of the tribunal’s decision, because that is necessary to understand what the substitution of the tribunal’s decision with the decision of the Minister achieves.  There is, consistently with a long line of Federal Court authority, a clear distinction between the power exercised by the tribunal and the power exercised by the delegate.  The delegate either grants or refuses a visa application under section 65.  The tribunal does not exercise the power under section 65, at least directly; it separately exercises a power under section 415.

The language in which the tribunal’s power under subsection 415(2) is framed is important because the tribunal can, relevantly, either:

affirm the decision –

of the delegate or it can:

set the decision aside –

of the delegate, and if the delegate’s decision is set aside, then we accept, consistently with the case that my friend referred to, Al Tekriti, that at that point, because the delegate’s decision has been set aside, the bar in section 48A would no longer apply, because it depends upon an extant refusal.  But that is not what happened in this case, because neither the delegate’s decision nor, for that matter, the tribunal’s decision was set aside.  Rather, there was substitution and that is, as I will come to, a different legal concept.

I just want to briefly point out that the submission that I am making is not inconsistent with the position stated by this Court in Plaintiff M174 in that it may be accepted that the delegate’s decision, after being affirmed by the tribunal, has no independent continuing operational effect or legal force.  It also is no longer solely the decision which constitutes the visa determination or the determination of the visa application.

But to say that it is no longer solely the determination of the visa application or that it has no independent continuing legal operation is not the same as saying that there cannot be a legal consequence to the decision.  In my submission, the substitution, as opposed to the setting aside, of the tribunal’s decision does not wipe away all legal consequences of the decision, because the delegate’s refusal under section 65 as affirmed by the tribunal remains, notwithstanding the tribunal’s decision no longer effectively continuing to have operation because it has been substituted by quite a different decision, as the circumstances of this case show, made by the Minister.

GAGELER CJ:   Mr Knowles, can we just look at the language of section 48A for a moment.

MR KNOWLES:   Yes, your Honour.

GAGELER CJ:   The language is, relevantly:

where the grant of the visa has been refused –

As I understand it, you do not say that refers a historical fact of refusal?

MR KNOWLES:   No, I am not applying a – I do need to qualify something I say in paragraph 7 of my oral outline, but we do not say that it is the fact of a decision which leads the bar to be imposed, because if the decision is, for example, set aside – that is, if the delegate’s refusal decision is set aside by the tribunal – then the bar would cease to operate.

But – and it is an unusual challenge, because most people would seek merits review – were someone to come to this Court to seek certiorari to quash a delegate’s decision and that relief was granted, then I would also accept the bar would cease to operate, because there is no refusal decision; it has been quashed.  That is why, in my submission, there is an important distinction between setting aside the decision, which would remove the bar, and substituting it.

GAGELER CJ:   We will come to that in a moment.  Just sticking with the language of section 48A for a moment, you said it depends on an “extant refusal”.

MR KNOWLES:   Yes.

GAGELER CJ:   What does that mean?

MR KNOWLES:   That is why I need to qualify what I have said in paragraph 7 of the oral outline.  An extant refusal ‑ ‑ ‑

GORDON J:   Sorry, before you do that, can you just tell me what wording needs to change in paragraph 7?

MR KNOWLES:   Yes, I can, your Honour.

GORDON J:   Sorry to interrupt, but just identify with precision what the change is.

MR KNOWLES:   What it currently reads is that there is reference to jurisdictional error as – a delegate’s decision affected by jurisdictional error would not affect the – sorry, would mean that the bar did not apply.

GORDON J:   You accept, now, that it would?

MR KNOWLES:   I do, and I do for this reason.  One of the circumstances where the Minister’s extraordinary power may well be exercised is to overcome a jurisdictional error and say, we accept there is a jurisdictional error, rather than having to go through a judicial process of quashing that, the preferable course would be to intervene in it and grant the substantive visa sought.

That would be, in a sense, a classic operation of something along the lines of the Brian Lawlor principle, that even an invalid delegate or tribunal decision could found the jurisdiction to make a valid decision under section 417.  What I mean by an extant refusal decision is that where the refusal decision – that is, the delegate’s decision – has been set aside or, perhaps, also quashed by a court, then it is not the case that the historic fact of that refusal decision having been made would be enough to trigger the bar.

GAGELER CJ:   So, if I am understanding you, you say that in the circumstance of the grant of the visa having been refused, the language of section 48A refers to a refusal in fact that has not been set aside in fact.

MR KNOWLES:   Yes, your Honour.

GAGELER CJ:   So, it does not have to be legally operative in the sense that it can be affected by jurisdictional error, it is the historical fact.

MR KNOWLES:   Yes.

GAGELER CJ:   All right.

MR KNOWLES:   There is good reason for that because, a little bit like the circumstances that your Honour the Chief Justice wrote of in Kable (No 2) drawing on Professor Forsyth’s work about the second actor, if a person considering the validity of a second protection visa application in light of section 48A had to go back and independently assess whether the first visa application determination was affected by jurisdictional error, that would be a very inconvenient outcome.

It is a much less inconvenient outcome for that person assessing the validity of the second or subsequent visa application to say, well, I know that the bar does not apply here, because although a previous visa application was made, there is a clear event – the setting aside or the quashing of the decision – which makes it apparent that the bar does not apply.

GAGELER CJ:   So, as well as the tribunal setting aside the decision under section 415(2), you would accept that a court making an order for certiorari would serve the same purpose?

MR KNOWLES:   Yes, yes.

GAGELER CJ:   You would no longer have a decision in fact that has not been set aside in fact.

MR KNOWLES:   Yes, yes.  And I think, with respect, your Honour the Chief Justice’s use of the word “in fact” twice in that provision is important and encapsulates, in a more analytical form, what I had meant by an “extant decision”, because it is a decision that has been both made in fact and is in fact still in force.

GAGELER CJ:   Well, it is not really in fact in force, in a case of jurisdictional error, is it?

MR KNOWLES:   Well, perhaps not, but it may be – I do not want to become metaphysical about jurisdictional error, because that is a wormhole that it is not necessary to go down, but to look at the consequences of jurisdictional error as being binary – that is, between a decision which is wholly effective or a decision which is to be treated as no decision at all – may be unnecessarily rigid.  But in this case, we are not dealing with a situation where either the delegate’s decision or the tribunal’s decision is affected by jurisdictional error or said to be affected by jurisdictional error.  There are valid decisions.  The only question is whether the substitution of the tribunal’s decision means that there is no legal consequence of the tribunal’s affirmation of the delegate’s decision.

GLEESON J:   Why do you not go so far as just to rely on the refusal in fact?

MR KNOWLES:   Because of the unintended consequences, your Honour, that that would entail.  Justice Mansfield’s judgment in Al Tekriti, I think, deals with that quite well.  Where there has been a refusal that is set aside by the tribunal, it would be an odd position to say that the fact of the refusal meant that a person would be precluded from making a protection visa application, when that application had never been determined on its merits, for instance, if, following the setting aside of a decision, the matter was remitted to the delegate, a person may well have a good reason for withdrawing the protection visa application, because they may become eligible for some other visa which they find more attractive.  They may withdraw the protection visa application; those claims have never been fully heard or determined.

GLEESON J:   Why are those unintended consequences not mitigated by section 48B?

MR KNOWLES:   They can be, but the flexibility of 48B would permit that.  I might take your Honours – it is in the joint bundle of authorities – to Al Tekriti, and your Honours can find it at volume 4, tab 21.  Relevantly, between paragraph 28 and 30, his Honour addresses an argument put by the Minister that similar words in section 48 of the Act, that is, the words: 

“whether or not the application has been finally determined” –

would mean that a decision in fact would be sufficient to impose the bar.  His Honour at paragraph 29 rejects that proposition, and at paragraph 30, in the first sentence, makes the point:

The fact that s 48(1)(b)(i) –

the bar:

operates whether or not the application for a visa has been finally determined . . . does not mean that a decision to refuse a visa which has been set aside on review should nevertheless be given effect to.

Because, essentially, the more direct answer to your Honour Justice Gleeson’s question might be that the purpose of section 48A is to prevent repeat and unmeritorious applications for a protection visa.  The classification of a subsequent visa application brought in circumstances where the first visa application was never determined lawfully – it may not be appropriate to classify such a situation as a repeat or unmeritorious application, because it has never been determined on the merits.

GORDON J:   It is not a repeat application, in that sense.

MR KNOWLES:   Yes, I accept that.  And that is why I did draw the distinction that was the subject of your Honour the Chief Justice’s questions, that there needs to be, for the bar to be effective, a refusal – that is, both a refusal in fact and that has not been set aside or quashed.  That is the case here, because nothing about the substitution of the tribunal’s decision means that either the delegate’s decision or the tribunal’s decision is set aside.

We place importance in this regard that the language of section 417 is to substitution simpliciter, not to set aside and substitute – which is the language used in section 415.  And to say that after a decision has been substituted, that it is no longer the legally operative decision, is quite a different thing, in my submission, to say that the decision which has been substituted can have no legal consequence.  And the legal consequence in this case is, in my submission, that the bar in section 48A remains, because there remains a refusal.

Contrary to what my friends put and what his Honour Justice Snaden found in the court below, this does not depend upon any revival or resurrection of the delegate’s decision.  It is merely a recognition that the delegate’s decision as affirmed by the tribunal has not been set aside.  It is no longer operative, in the sense that it has been substituted with the decision of the Minister, but that does not, in my submission, scrub away all legal consequences of what was a decision which remains a decision that has not been set aside.  And so, there is an important distinction between substituting a decision on one hand and setting that decision aside.

GORDON J:   In relation to that, will you address the appellant’s argument about the subsequent section which was said to be either an extension to or sit alongside the power where it does have the additional language?

MR KNOWLES:   Yes.  I think your Honour might be referring to section 501J.

GORDON J:   I am, thank you.

MR KNOWLES:   Yes, I can address that briefly.  The powers are overlapping, but they are different, and they are different in two respects.  Section 501J has a broader ambit because it applies in relation to protection visa decisions, whereas the ambit of section 417 is narrower and it can only apply in relation to decisions of the tribunal under section 415.

And importantly – and the second difference is one I embrace – the wider language of section 501J includes the language of “set aside . . . and substitute” and one would not, at least according to ordinary principles of construction, which I accept have to be attenuated by the fact that the Migration Act has been amended many times at many different stages, but nevertheless, under ordinary principles of construction one would normally say that the use of different language by Parliament is for a reason, and the fact that section 501J uses the language “set aside . . . and substitute” whereas section 417 uses only the language of “substitute” simpliciter has some purpose and meaning.

The meaning is, in my submission, directly connected to the flexibility that section 417 is designed to achieve, and can I explain that.  As the facts of this case show, the appellant was granted a three‑month duration visitor visa, although he had applied for a protection visa.  Section 417 is intended to operate flexibly.  It is expressly stated that the Minister is not bound by the same constraints that the tribunal was bound by.  There is a reason, therefore, that the Minister, taking into account circumstances that might be wholly unconnected to the protection visa claims, would, in the public interest, grant some other type of visa.

The substitution by the Minister of a decision under section 417 with a – or the substitution of the tribunal’s decision, I should say, by the Minister in those circumstances has nothing to do with overriding the findings of the tribunal on the protection visa.  It is really, simply, a reflection of the flexibility and unusual nature of the Minister’s power.

GORDON J:   It could though, could it not?  In the sense that it could have been the grant of a protection visa.

MR KNOWLES:   It could, and I should confront that situation.  It could have been the grant of the protection visa, and it could have been directly connected with the tribunal’s findings.  Again, the facts do not drive the construction, but it is a useful factual scenario – the Minister in this case could have said, I disagree with the tribunal’s finding on the merits, Coptic Christians in Egypt are persons to whom Australia owes international obligations, or this particular person is, I will grant them a protection visa.

In that case, on my argument, I would have to confront the fact that if that protection visa was a temporary protection visa of limited duration, at the end of the duration of that visa the bar would remain, and my answer to the question that I posed myself is that that is why the flexibility of section 48B exists, that the bar could be lifted at the end of the temporary protection visa to allow a further visa application.

So, my construction has the advantage of both allowing for the fact that the Minister’s intervention under section 417 may be entirely unconnected to the reasons for the tribunal’s decision while still recognising that it may be quite connected in different circumstances and there are other mechanisms in the Act to allow further protection visa applications to be made, were that position warranted.

What the challenge my learned friend’s construction has is that an exercise of power under section 417, for example, to grant a three‑month visitor’s visa, suddenly disapplies the bar under section 48A even though a further visa application may, in every real sense, be a repeat visa application of claims that have been previously fully considered and rejected.  In that respect, there is an incongruousness of my friend’s argument that the bar in section 48A could be disapplied by the exercise of power under section 417 because, both textually and contextually, the bar in section 48A is subject to the power in section 48B.  That is the mechanism by which the bar is disapplied.  It is not a harmonious construction, in my submission, to have two separate powers which have the effect of disapplying the bar, and it does not give full effect to the flexibility which section 417 is designed to effect.

The only other point to make is to repeat, but perhaps highlight what we have said in writing about legislative history.  Your Honours will see that at footnotes 17 and 18 of our written submissions, we have traced through the introduction of this section and analogues of the section.  It is not helped by the fact that the Act has been renumbered over time, but the short point is this.  When the original predecessor of section 417 was introduced, it had two distinguishing features from the form which is in issue in this case.  The first is that at that time it referred to specifically both setting aside and substituting the decision of the tribunal.  The second is it did not at least expressly confer the flexibility on the Minister to make a decision that was not open to the tribunal to make.

When, under the 1992 amending Act, which we refer to, the power to act – or for the Minister to act to make a decision that would not have been open to the tribunal was introduced, when that flexibility was introduced, at the same time the language of “set aside” was removed from that provision.  That is, in my submission, a very powerful circumstance where legislative history explains a purposive decision to increase flexibility on the part of the Minister to act in all kinds of situations which may not be at all connected to the underlying reasoning of the tribunal.

It would be, in my submission, a very un‑harmonious construction to read section 417 as not just substituting the decision of the tribunal, but setting it aside and treating it as having no legal consequence.  The legal consequences may be different because the decision has been substituted – it may not have operative effect for all purposes – but unlike a decision which is set aside, it can nevertheless have, in my submission, the legal consequence which section 48A gives to it.  And, if there would be any injustice created by the ongoing application of the 48A bar, Parliament has expressly provided for that through section 48B.

JAGOT J:   Is there any scope to construe “substitute for a decision of the Tribunal” by reference to the nature of the decision the Minister makes under 417(1).  For example, in this case, the Minister did not grant a protection visa, or any kind of protection visa as per section 35, but if the Minister had granted any kind of temporary one that you were talking about, the word “substitute” or the section 417 bites differently in such a case?

MR KNOWLES:   I have given some thought to your Honour’s question and there is some attraction to it, but I think it is difficult textually to give “substitute” ‑ ‑ ‑

JAGOT J:   It is kind of expedient but not very textually satisfactory.

MR KNOWLES:   Not textually satisfactory, not just because it would give “substitute” two meanings under section 417 ‑ ‑ ‑

JAGOT J:   Different, yes.

MR KNOWLES:   ‑ ‑ ‑ but under section 415, it would lead to a decision having been affirmed having potentially two different meanings there, depending upon some later‑in‑time historical events.

JAGOT J:   Yes.

MR KNOWLES:   So, I do not, with respect, embrace it, albeit that it is a construction which has some appeal.  But the saving ‑ ‑ ‑

GORDON J:   Can I ask a question?  Sorry, I thought you had finished, Mr Knowles.  Please finish.

MR KNOWLES:   The saving provision is section 48B.

JAGOT J:   You say that is good enough.

MR KNOWLES:   Yes.  I am sorry, your Honour Justice Gordon, I cut your Honour off.

GORDON J:   It is sort an extension to that and I think I know what your answer is going to be, but here, where there was the grant of kind of a visa here – it could have been granted on condition, could it not?

MR KNOWLES:   Yes, it could be granted on a condition.

GORDON J:   Because that kind of visa does not prevent an application for protection visa under the Act or regulations.

MR KNOWLES:   What could have been done is a simultaneous exercise of the power under section 417 and the power under section 48B, so that the person could be given a three‑month visitor visa, in order to give themselves time to make and collect the relevant information to make a second protection visa.  That is how I think it would need to be done. 

I am not sure that the visa granted under section 417 could be subjected to a condition that the bar would not apply.  I think a condition like that would offend the argument which I have been putting forward, that the power under section 417 does not extend to a power to disapply the bar. But, your Honour, the answer is ultimately the same as the answer I gave to Justice Jagot.  I retreat to section 48B as the cure for the situation that your Honour identifies. 

Unless your Honours have any other matters, they are the submissions for the respondent. 

GAGELER CJ:   Thank you.  Mr Godwin.

MR GODWIN:   Thank you, your Honour.  There are just a few points.  As I understand it, my friend’s submission is that even if a decision to refuse a protection visa is affected by jurisdictional error, then it is still a refusal for the purposes of section 48A until it is set aside.  We say that section 48A is a section that takes away a right; the person otherwise would have a right to make an application for a visa under section 45, and to construe it in that way is to give the section a broader operation than one would expect, given the Court’s decision in Bhardwaj and the fact that a decision that is affected by jurisdictional error is void ab initio.  So, we would say that the section, being a section that takes away a right, should not be construed in that way.

As I understand my friend’s submission, if this decision by the Minister had been made under section 501J, because it has the words “set aside” in it, that would have affected the ongoing operation of the delegate’s decision.  If I could take your Honours to the joint bundle of authorities, volume 5, at tab 35 you will find the explanatory memoranda for section 501J.  If I can draw attention to page 896, at paragraph 64, you will see in the second sentence there, it is said: 

The power established by this new section is a logical extension of the equivalent –

And I stress the word “equivalent”: 

power available to the Minister under current section 417 to substitute a more favourable decision for a decision of the RRT –

If you then go to the next tab – tab 36, at page 903 – this is the Minister’s second reading speech in relation to section 501J.  You will see in the second paragraph on page 903: 

There is currently no power for the minister to replace unfavourable protection visa decisions of the Administrative Appeals Tribunal with a decision more favourable to the applicant.

Then, five paragraphs further down: 

This ministerial intervention power is consistent with existing powers relating to decisions by the Refugee Review Tribunal –

It is a clear legislative intent that this was just to replicate what was already in place in terms of the MRT and the RRT.

GORDON J:   Do you propose to respond to Mr Knowles’ arguments about the changes in relation to 501J?  So, as I understood it, in my notes, he had two points.  He said the powers overlap but they are different.

MR GODWIN:   There is an overlap in the extent that it uses these words “in relation to . . . a protection visa” in 501J that does not appear in section 417, but that is an elusive difference.  I cannot explain what the content of what that difference is.  It is either a protection visa decision by the tribunal, or it is not.  So, in our submission, there was no legislative intention for there to be as difference of operation used by those words, and the extrinsic materials make it clear that it was supposed to be an equivalent power to section 417.  I should just say, in case there is any confusion, this is a different submission to Mr Knowles’ submission about the legislative history of section 417.  Obviously, this is a separate idea.

My friend emphasised the words “subject to” in section 48A.  We say all that means is that section 48A is subservient to section 48B, and that is provided in our written submissions.  Lastly, the effect of my friend’s submission is that the Minister has seen that the tribunal has refused a

protection visa to the appellant.  He has taken into account the public interest.  He has decided that it is in the public interest that that refusal – that is the effect of his refusal, not trying to use the words of section 48A, but that refusal – was not in the public interest, but what was in the public interest, that the applicant be given a visa.

We say that was an extraordinary power, he is responsible to Parliament, he has to explain why he has exercised that power to Parliament.  In those circumstances, it seems extraordinary that where he or she has made that decision that the existing – it is hard not to use the word “refusal”, but the existing non‑grant of the protection visa which has been affirmed by the tribunal should be set aside, yet it still is a refusal of a protection visa and we say that, contextually, that is not a sensible outcome.

Those are the submissions in reply.

GAGELER CJ:   Thank you, Mr Godwin.  The Court will consider its decision in this matter and will adjourn until 10.00 am on Monday, 9 December.

AT 11.01 AM THE MATTER WAS ADJOURNED