KDSP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2021] HCATrans 103

[2021] HCATrans 103

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M95 of 2020

B e t w e e n -

KDSP

Plaintiff

and

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Defendant

EDELMAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 9 JUNE 2021, AT 10.02 AM

Copyright in the High Court of Australia

MS L.G. DE FERRARI, SC:   If the Court pleases, I appear with MR M.W. GUO, for the plaintiff.  (instructed by Victoria Legal Aid)

MR P.D. HERZFELD, SC:   Your Honour, I appear with MR G.J. JOHNSON and MR D.J. HELVADJIAN, for the defendant, slightly overdressed.  (instructed by Sparke Helmore Lawyers)

HIS HONOUR:   Yes, Ms De Ferrari.

MS DE FERRARI:   Yes, your Honour.  The first issue, if I may, is that we filed yesterday an application supported by an affidavit also affirmed yesterday by Mr Gregory Hanson, and has your Honour received those materials?

HIS HONOUR:   Yes, this is a further amendment coming at the moment before the hearing, is that right?

MS DE FERRARI:   Yes, and it is not intended that – the main change, your Honour, is to add a ground 6, and it is not intended to run that argument before your Honour, and in fact, by the summons, we are seeking orders that would allow the remitter of so much of the application to the Federal Court.  That ground really arises by reason of, in effect, an issue that has crystallised itself in the Federal Court, in particular the Full Federal Court constituted by a bench of five, last week, heard two cases on this issue, including a case where I represented the applicant, and so it was in the original jurisdiction but by way of a separate question referred to a bench of five justices.  So that does no more than pick up that issue, and really, is to preserve the position of my client, depending on the outcome of those two cases reserved by the Full Court of the Federal Court.

HIS HONOUR:   You have also added another two orders that are not consequential upon this new ground 6 as well.

MS DE FERRARI:   Yes.  That is correct, they sort of reflect what we said in the submissions in reply, that the question of the relief is not straightforward in this case, your Honour, but upon closer consideration, we think that what 1A and 2A do is reflect the form of the relief that was given by this Court in Plaintiff M76/2013, and I was going to talk about that case in relief, but that was a case where there was an error by the delegate, as part of the processes put in place as to whether a matter would be referred to the Minister for the Minister’s consideration as to whether to lift the section 46A bar, statutory bar.

So there was an error by the delegate, so there was anterior error, and the Court said that declaratory relief should go to say that that anterior error of law by the earlier delegate affected the later purported exercise by a later

person, in this case, the Minister personally.  Now, that is how it reflects it, in case we are wrong about the fact that certiorari would go, we do not think we are wrong, having regard to Hossain and Bhardwaj, but……form of relief, and we……in reply that if it is not certiorari then ‑ ‑ ‑ 

HIS HONOUR:   Ms De Ferrari, you are just breaking up a little.  I know that is an odd request, but your voice breaks up, I think, if your body moves a little.

MS DE FERRARI:   Thank you, your Honour, your Honour’s voice was breaking up when your Honour was telling me that, as well.

HIS HONOUR:   I see, yes.  Ms De Ferrari, could you just point me to the paragraphs of your reply, which you say paragraphs 1A and 2A of the orders sought reflect?

MS DE FERRARI:   Yes.  I am sorry, your Honour, I am just going through it.  It is paragraph 14, your Honour, it might be that, if cleaning up is – relief is required, the better course is for this Court to declare that the Full Court decisions are of no effect whatsoever.  It is not expressed exactly that way, it is expressed in a sense that the decisions were actually affected by the error, and so, to that effect, there is still utility in saying that that particular error affected the later decisions by way of cleaning it up…..relief, and we say that is not without a possibility of some effect, because it is not to be supposed that the Minister, who has quite a separate power under section 195A, to grant any visa that the Minister wishes to grant would not take heed of a declaration that the earlier decisions were based on error originating by the fact that, in fact, a visa should have been granted at a much earlier stage, among other matters.

HIS HONOUR:   All right.  I will hear from Mr Herzfeld, then, about what his position is in relation to this application.

MS DE FERRARI:   Yes, your Honour.

MR HERZFELD: Your Honour, we oppose the application. In relation to grounds 1(a) and 2(a), if it is the case that these reflect matters in the reply, and that, with respect, can be said only on the most charitable view, there is no explanation as to why these amendments were brought forward and notified to us at 2.04 pm yesterday in circumstances when the reply was served on 4 May. That is the amendments to the prayers for relief. The amendment to raise a whole new round of challenge to the Minister’s section 501A decision poses even further difficulties. Your Honour has not heard yet from Ms De Ferrari about that amendment, does your Honour wish me to address that now?

HIS HONOUR:   Well, Ms De Ferrari says that she does not purport to make any submissions on that today, that that ground is there solely to preserve her client’s position, and that she seeks that that issue be remitted, presumably, though, only if her client’s application were unsuccessful, although she can address that point in a moment.

MR HERZFELD:   Yes, well, let me then tell your Honour what we say about that amendment as well.  So I have said what I want to say about the grounds of – I am sorry, about the prayers for relief, can I then focus on that new ‑ ‑ ‑ 

HIS HONOUR:   Just before you move from the prayers for relief, Mr Herzfeld, is there any prejudice to you, although they have only been notified to you with about 16 hours’ notice, in dealing with those points in oral submissions, subject to anything that Ms De Ferrari says that may be new or may go beyond the scope of the reply, and that you are not in a position to address that at the moment?

MR HERZFELD:   Yes, the answer to that is no, your Honour, we can, provided that we have sufficient ability to make some further submissions in writing if we need to ‑ and I am not saying we will need to, but if we need to ‑ we can deal with those claims today.

HIS HONOUR:   Yes.

MR HERZFELD:   Of course, nonetheless, in light of what was said in Aeon, the fact that there is frankly no explanation at all for why these have been brought forward so late is itself a reason that they should be refused, irrespective of the question of prejudice.

HIS HONOUR:   Yes.

MR HERZFELD: But can I then turn to ground 6, which is a bit more complicated, and may we make three points about that amendment? As we understand it, the amendment seeks to raise a new ground of challenge to the section 501A decision, and then have that ground remitted. Now, the first point that we make is that, although it is true that the Full Court heard arguments in QJMV on 3 June, that is not quite the whole picture.  Your Honour, I am in that matter as well, though not the Full Court part of it, the first instance part of it.  What happened was that a separate question was referred up to the Full Court, and that matter has been on foot since January 2021, and since that time, Ms De Ferrari has been in that matter.  So it is entirely unclear to us why this issue was not raised in this matter until, as I say, 2.04 pm yesterday.

It was not raised in the lead‑up to the Full Court hearing, when there were submissions being prepared.  It was not raised even immediately upon the conclusion of that Full Court hearing, it was raised for the first time yesterday, and in any event, given, as I say, that that matter has been on foot since January and Ms De Ferrari has been in that matter since January, the date of the Full Court hearing of 3 June is really a bit of a red herring.  Actually, the delay that needs to be explained is a far more extensive one than the delay since 3 June, and in any event, that delay itself is still unexplained.  So the first point we make is that unexplained delay is reason enough for the new ground not to be permitted.

The second point is this. Before that proposed amendment, the plaintiff’s only attack on the Minister’s decision under section 501A was on the basis that the plaintiff had earlier satisfied all visa criteria. Now, this introduces a wholly new ground of challenge to the 501A decision, and the plaintiff does not advance any submissions in this Court on that ground of challenge. Now, both for that reason and because of its lateness, we are not in a position to deal with that ground before your Honour today.

It is no answer for the plaintiff to say, that is okay because they just want the ground remitted, because if your Honour takes up our submissions, your Honour can see at paragraphs 11 and following, we have contended that unless the plaintiff’s attack on the Minister’s 501A decision succeeds, all of the other relief that the plaintiff seeks would be inutile, and so our submission is that the short way for this Court to dispose of the plaintiff’s application is to reject the plaintiff’s challenge to the 501A decision, and that will dispose of the rest of the application.

But the amendment, and then remittal, will preclude that course, because it proposes to introduce and then remit, without determination, a further ground of challenge to the 501A decision, so the amendment will prejudice the way in which we have met this application since 22 April 2021, when we put on our submissions saying that unless the 501A challenge succeeded, the whole of the application had to fail.  The only way to avoid that prejudice to us is not to remit the new ground, but to allow us to meet it in this Court, and that cannot be done without an adjournment.  And that, again, is entirely a consequence of the plaintiff bringing forward that amendment at this late stage in an unexplained way.

So we are considerably prejudiced by this amendment, and that prejudice is not cured by the proposed remittal, in fact, it is compounded, because that remittal will deny us the ability to make one of the arguments upon which we have relied since we made our submissions on 22 April 2021.  That is the second point.

The third point is this, the plaintiff in this matter has already amended his application once. This is, frankly, a highly unusual matter. It is being heard in this Court’s original jurisdiction, before your Honour sitting as a single judge, the plaintiff has required a witness for cross‑examination, which is going to take place from court room number two, that is, I expect, a first in the history of this Court. It is an application which, as your Honour will recall, was brought concurrently with a special leave application to this Court. The plaintiff has already had an opportunity to challenge the section 501A decision in the Federal Court, that was the matter which then came to this Court on special leave.

So what the plaintiff is now seeking is a further, frankly, extraordinary course of bringing a new challenged 501A decision in this Court, in circumstances where that issue has already been the subject of proceedings in the Federal Court, and in seeking that amendment, is seeking from your Honour an extension of time which would otherwise be an extraordinary bar to the decision, and then to have it remitted to the Federal Court in a way which would preclude that court from determining what would ordinarily be the case if this proceeding had been brought in that court.

What I mean by that is, if that challenge had been brought in that court, or was still to be brought in that court.  So really, what is being done is an attempt to avoid all of the strictures which ought to apply by seeking an amendment, at the last minute, and an extension of time from your Honour.  So for those three reasons, one, extraordinary unexplained delay, two, prejudice to us, and three, the context of this matter, we do oppose the addition of that new ground.

HIS HONOUR:   Well, Mr Herzfeld, in light of the fact that the plaintiff is not actually seeking to make any submissions, nor is the plaintiff seeking an adjournment, is there any reason why I should not deal with this application in the course of deciding the application as a whole?  In other words, once I reach my conclusions on the applications as a whole, it may be that either this application would fall away, if the plaintiff were successful, or, if the plaintiff were unsuccessful, then there would be the question of remitter in light of all of the submissions that you have made.

MR HERZFELD:   Yes, your Honour, we do not have any objection to that course.

HIS HONOUR:   Yes.  Ms De Ferrari, is there anything you want to say in response?

MS DE FERRARI:   Very briefly, your Honour.  In terms of the relief, I also wanted to note that in the application, since the very beginning, we also sought such other orders as this Court considered necessary or appropriate, and I also refer to section 32 of the Judiciary Act in terms of this Court giving relief as necessary to quell the controversies between the parties.

As to ground 6, your Honour, my client is not trying to gain any advantage against the Minister, my client has been deprived of his liberty, now, for some five or six years, an extraordinary amount of time, and the reality as to why the amendment was made now is that, although I have been briefed in the other matter, until I came to consider this matter as well, I just, frankly, did not remember the facts of this matter or the documents in this matter to such an extent that I was able to advise my client that this ground was the same as what was being run in another matter.

So I do not think my client should be penalised by the fault of his counsel in those circumstances.  Otherwise, we would be quite prepared to run ground 6 now, I am obviously very well‑rehearsed on it, but I know that Mr Herzfeld, as he said…..that matter, it was not him but Mr Lenehan, that I did the matter in the Full Court, so for that reason, we are just not trying to argue it before your Honour now, but we can argue it, as your Honour has suggested.

I also say that it is my prediction that the matter that was heard – the two matters that were heard by the Full Court are going to come to this Court, at least by way of special leave application, at some point, anyway, given the nature of the issues.  So it is really a preserving of the point, and largely it is motivated by the fact that otherwise the Minister is actually trying to run Anshun arguments against us in terms of the grounds that we are before your Honour at the moment.  Other than that, your Honour, we are in the hands of the Court, and I do not have any particular submissions to make.

HIS HONOUR:   Yes.  The Anshun arguments and the abuse of process more broadly argument, would they apply equally to this proposed new ground?

MS DE FERRARI:   Well, that is our concern ‑ ‑ ‑ 

HIS HONOUR: In other words, Mr Herzfeld says that all the section 501A issues could have been raised, had the plaintiff been fully informed, in the Federal Court, the Full Federal Court, and on application for special leave. This would be another one of those issues, would it not?

MS DE FERRARI:   Yes.  Well, we have got our response to the Anshun argument as they are made, because the affidavit evidence shows why, in fact, that knowledge did not exist.

HIS HONOUR:   I see.

MS DE FERRARI:   But it is an anticipation that – we could, of course, have made another application in the Federal Court, that would not be an issue in terms of time for certiorari in the Federal Court, under section 39B, we would have the issue about the extension of time under the Act, but that would be all, so we could have done it, but no doubt we would have been met with some other permutation of an Anshun argument.  And so it really is a matter of bringing all of the issues in this case – and the issues are very complicated, your Honour.  I mean, it is not until we were able to effectively disassemble all that has been going on behind closed doors for some four years or so with the Minister and the decision‑makers in the Department that we were able to find our way through about what has happened to our client and why these decisions have been made, and how.

HIS HONOUR:   Yes.  Well, what I propose to do, Ms De Ferrari, in circumstances in which you do not seek an adjournment, and, quite properly, recognise that the defendant is not in a position to address a substantial new ground that they were notified about at 2.00 pm yesterday, is to deal with your application to introduce this new ground and to have it remitted by the Federal Court at the same time as considering the remainder of the issues in the application, because if your client is ultimately successful, this issue would fall away, and if your client is not successful, then the only issue would be whether the application be remitted or whether I refuse the application.

MS DE FERRARI:   Yes, your Honour.  If I can now move on to the second matter.  So, for those reasons, it is convenient, then, to proceed upon the amended application, rather than the further amended application, with the proviso that when we come to fashion the relief ‑ and as I already said, that was, in any event, a prayer for the relief that this Court considered necessary or appropriate ‑ it might be a matter of fashioning it in a way that is by way of declarations rather than certiorari, but I will deal with that later.  The next question ‑ ‑ ‑ 

HIS HONOUR:   Ms De Ferrari, just to be clear, insofar as your application relates to paragraph 1A and 2A, you should address them in oral submissions, because at the moment it does not appear to me that there is anything in those paragraphs that Mr Herzfeld cannot address in exactly the same way as he would address the rest of the relief.  But if there are matters which cause prejudice to him as a result of those, then they will no doubt arise in the course of submissions.

MS DE FERRARI:   Yes, I will, your Honour, that was my intention, and as I said, it will be largely by reference to Plaintiff M76.  The next issue I wanted to address now is the materials which I hope and trust your Honour should have before you.  The amended application basically sets out the grounds and also the argument in its main form, and that is a document that is dated 1 April 2021.  There is then a response by the Minister, which is a document dated 22 April 2021, and then there is a reply, which is dated 3 May 2021.  So those are, in effect, their submissions.

There are then three affidavits that the plaintiff relies upon.  They are three affidavits of Ms Joanna Abraham, and I will tend to refer to them as the first Abraham affidavit, second Abraham affidavit, and so on.  The first one is an affidavit of 24 September 2020.  Now, your Honour, some of these materials were put together in an application book for the purposes of this matter coming before your Honour and Justice Gordon at the same time as the application for special leave, but I propose to refer to the affidavit as a stand‑alone document rather than that application book, which has sort of been overtaken by events.

The second affidavit is of 2 November 2020.  It is largely overtaken insofar as it dealt with the issue of delegation, but that contains a requested document that was made to the Minister.  And the third is an affidavit of 29 March 2021, and your Honour, I, subject to anything that Mr Herzfeld wants to say by way of objections, I would formally read those three affidavits.

HIS HONOUR:   Yes, I will take all three affidavits as read, unless there is any objection to any of the paragraphs in those affidavits by Mr Herzfeld…..

MR HERZFELD:   No objections, your Honour.

MS DE FERRARI:   Thank you, your Honour.  As part of our evidence, I also wanted to tender two documents that were exhibited to the affidavit of Ms Tattersall.  Now, while we do have some objections to the affidavits of Mr Arnold, we have no objection to the affidavit of Ms Tattersall, but can I identify the two documents in a way that we want, as part of our evidence?  Your Honour should have an affidavit of Ms Ellen Tattersall, of 26 October 2020.

HIS HONOUR:   Well, Ms De Ferrari, is there any difficulty at this stage for me simply taking Ms Tattersall’s affidavit as read, and then you can refer to any of the documents in that affidavit, particularly given that there are no objections to it?

MS DE FERRARI:   No, your Honour.

HIS HONOUR:   All right.

MS DE FERRARI:   So that is the evidence for the plaintiff.  What I was then proposing to do is going in some detail through the affidavits, as they do show both the chronology and the relevant materials that we rely upon.  I will have to ‑ ‑ ‑ 

MR HERZFELD:   Your Honour, I am so sorry to interrupt Ms De Ferrari, I am just conscious that there is a witness who has been required for cross‑examination, I am just wondering whether it might be convenient for us to read his affidavit, deal with the objections, for his cross‑examination then to be dealt with, and he can then be released before we move to submissions, otherwise he will be sitting outside court room number two for longer than necessary.

HIS HONOUR:   I think that would be a convenient course, would it not, Ms De Ferrari?  That way, you can then make your submissions based on the whole of the evidence, rather than breaking up the submissions in a way that would then need to give Mr Herzfeld a second opportunity to respond.

MS DE FERRARI:   I do not have any objections to that, your Honour.  I was not presumptuous to anticipate how your Honour might wish to run the trial, but I have no objection to that.

HIS HONOUR:   Ms De Ferrari, have you and Mr Herzfeld conferred in relation to any of the objections to Mr Arnold’s affidavits?

MS DE FERRARI:   I have to confess that we have not.  My approach to the objections, your Honour, was very much to indicate what they are and, in a sense, not press them too hard and have your Honour deal with them as part of your Honour’s decision.  I would make submissions as to why we say those objections arise, but I was not expecting rulings, and otherwise for the evidence to be considered.

HIS HONOUR:   I have read the affidavits, and, as far as I can see, it does not appear that there is anything in his affidavit that is likely to be controversial in relation to the issues that are joined between the parties, or is that wrong?

MS DE FERRARI:   There are some controversial matters, your Honour, yes, that I am going to explore by cross‑examination.

HIS HONOUR:   All right.  Well, perhaps you could then indicate to me what the objections are.

MS DE FERRARI:   Yes, your Honour.  Has your Honour received a document which lists the objections to those materials?

HIS HONOUR:   No, I have not.

MS DE FERRARI:   I do apologise for that, I thought it might have been sent to chambers as well.  So, as I said, there are no objections to the Tattersall affidavit, which has now been read.  In terms of the first affidavit of Mr David Arnold, which is dated 26 October 2020…..the first objection ‑ and it repeats for some of the paragraphs, is as to paragraph 3 and the words:

preliminary or indicative –

and that is on the basis that it is an opinion.  Again, that same objection to the same words in the second sentence of paragraph 4, and the first sentence of paragraph 5.  There is then an objection to the whole of paragraph 6, it is opinion, speculation, submissions, and then as to exhibit DA1, there is an objection on hearsay and also we rely on section 135, that document being unfairly prejudicial and/or misleading or confusing, by reason of being incomplete with assertions that are not explained on their face, with parts of that document that have no explanation whatsoever, such as required continuation of assessment, effect dates, et cetera, et cetera.  Those are the objections to the first affidavit, your Honour.

HIS HONOUR:   All right.  Mr Herzfeld, have you had an opportunity to consider any of these objections?

MR HERZFELD:   Yes, I should tell your Honour that we were notified of very limited objections only to the first affidavit by letter on 29 March.

HIS HONOUR:   Yes.

MR HERZFELD:   Those did not include the exhibit, and we responded with a proposal.  We then did not hear anything until 9.24 this morning, when we received a two and a half page document containing many more objections.  It is really, frankly, unsatisfactory for a matter in this Court to proceed in that way.  Having said that, can I address each of the objections which have been made?

HIS HONOUR:   Yes, thank you.

MR HERZFELD:   In relation to paragraph 3 as an example, the words:

preliminary or indicative –

Mr Arnold is able to give admissible evidence of the Department’s practice concerning the way in which assessments of criteria are undertaken, and that includes that the Department regards the assessments as preliminary or indicative in the manner described.  Your Honour can see Mr Arnold’s role in paragraph 1 of that affidavit, which suitably qualifies him to give evidence of that kind.

Now, we accept that the plaintiff contests the legal effect of the assessments about which Mr Arnold gives evidence, and we accept that his evidence does not preclude the plaintiff from doing so, but that does not mean that his evidence about the way in which the Department’s practice takes place is inadmissible and that is ‑ ‑ ‑ 

HIS HONOUR:   Your basic point is that his evidence is that a preliminary or indicative assessment is a question of practice, and that he is not expressing a view as to the legality of it, but it is just the way that the Department itself understands the practice.

MR HERZFELD:   That is right, and there is quite a lot of detail about that practice in other documents, as your Honour knows.

HIS HONOUR:   Yes.

MR HERZFELD:   But it will not stop Ms De Ferrari from submitting to your Honour that your Honour should conclude that what the Department thinks is a preliminary assessment is actually, unbeknownst to the Department, a final assessment with some legal effect.  And that is the answer to each of the objections to the words “preliminary or indicative”.

HIS HONOUR:   All right.  What about paragraph 6?

MR HERZFELD:   Yes.  Similarly, in relation to paragraph 6, this is evidence concerning the way in which those in the Department, with delegations, in fact undertake their tasks.  And again, Mr Arnold is able to give that evidence, again, the plaintiff is able to contest whether the Department’s understanding of the effect of those arrangements is correct, but there is nothing problematic about what is set out there as a description of the Department’s practice in the way that it administers those provisions.

HIS HONOUR:   Yes, thank you, Mr Herzfeld.  Ms De Ferrari, just before I come back to Mr Herzfeld, as to paragraphs 3, 4, 5 and 6 it appears to me there is nothing in those paragraphs that is an impermissible expression of opinion by Mr Arnold.  They are all descriptions of departmental practice from a person who is qualified to describe what the practice of the Department is.  For those reasons, I would not uphold the objections to those paragraphs.

As to paragraph 4, I have a concern, before I hear submissions from Mr Herzfeld about a number of copies of the screenshots, to which I have not descended to the details, but it is unclear to me what the relevance of those particular screenshots is to the issues in this application.  Without any clarity of the relevance of the issues in this application, and the way that the exhibit DA1 relates to those, it is very difficult for me to conclude there is any unfair prejudice or incompleteness.  There is also a real unfairness to the respondent, if these do become issues in the application, where only an hour or so notice has been given to the respondents as to this particular objection.  What do you say about that?

MS DE FERRARI:   Well, your Honour, in my submission, that is not quite the full story.  We have always stated, from the time that the application was filed, unamended, that the evidence was objectionable on the basis that, really, the records were incomplete.  There was no explanation about what those matters meant, some of the matters seemed to be contradicting one another, so your Honour, to that extent, they have been fully aware of that.  As well, the records ‑ ‑ ‑ 

HIS HONOUR:   Ms De Ferrari, sorry to interrupt, I do need to make it clear that I have listed this matter for a day.

MS DE FERRARI:   Yes, your Honour.

HIS HONOUR:   This matter is in the original jurisdiction of the High Court.  It is not a matter that can go on and on and particularly, given the lateness of some of the submissions and the extent of what now appears to be objections to some of the affidavits, it needs to be very efficiently run, now that we are here.

MS DE FERRARI:   Yes, your Honour.

HIS HONOUR:   Can you take me to the particular screenshots in DA1 that you say are unfairly prejudicial, and succinctly explain to me why it is that, without even having heard submissions, or the evidence of Mr Arnold, I should exclude those particular screenshots?

MS DE FERRARI:   Yes, your Honour.  So if your Honour goes to page 6 in the electronic filing of the Court, I think it is page 5 in the affidavit, your Honour will see, for example, in the second screenshot, there are three fields that have been highlighted.  So, already this is something that someone has decided to point out, rather than actually give the whole information.  But your Honour will see, for example, “PIC 4003A Check” and then “Not Required”, with no explanation as to who made that or why.  But, more importantly, “PIC 4001”, your Honour will see two fields, “Check”, “Check”, “Onshore”, “Offshore”, no explanation about – and your Honour knows that PIC 4001 is very much in issue ‑ no explanation about that ‑ ‑ ‑ 

HIS HONOUR:   Sorry, I am not sure I am looking at the right page ‑ I am looking at page 5 and page 6 of the first affidavit of Mr Arnold, is that right?

MS DE FERRARI:   So I am looking at ‑ your Honour knows the automatic pagination that is put by the High Court when something is filed, in blue, at the bottom.

HIS HONOUR:   Yes.

MS DE FERRARI:   I am just going by the numbering there, which is page 6.

HIS HONOUR:   Yes.

MS DE FERRARI:   And so it is the second screenshot on that page, so your Honour will see, those are two screenshots, and the second one has got three fields that are highlighted, white‑on‑black.

HIS HONOUR:   Yes.  I see it.

MS DE FERRARI:   And your Honour will see that the second and third rows that are highlighted, that is, white writing on black, are about PIC 4001, which your Honour knows is very much in issue.

HIS HONOUR:   Yes.

MS DE FERRARI:   And then your Honour will see that there is information, so there is no explanation of “Onshore” or “Offshore”, none of that relates to PIC 4001 as it appears in the regulations.  There is no explanation of what “Effect Date” is, no explanation of what the “Record Date” is, and then your Honour looks at that information, and saw they are not complete, but then said something like:

Required,Continuation of assessment – No –

And we do not know anything about what that means, and then a next one:

Required,IRAN,Commonwealth Statutory –

something else, and we do not know anything about that, and ‑ ‑ ‑ 

HIS HONOUR:   But, Ms De Ferrari, this is only being relied upon to the extent of the content of paragraph 4 of Mr Arnold’s affidavit.  So it is being relied upon as an exhibit which is said to support what is said in paragraph 4.  It may be that there are other aspects of the exhibit that are unclear, but it is not relied upon for purposes beyond paragraph 4, is it?

MS DE FERRARI:   But, your Honour, what they purport to say is that those were assessed.  It does not say by whom they were assessed, but apparently, it is purported to say, by paragraph 4, that PIC 4001 was not assessed.  That is the effect of paragraph 4.  Because PIC 4001 is picked up by clause 790.226(a), and when your Honour goes through paragraph 4, the effect of it is to negatively say that PIC 4001 was not assessed.

HIS HONOUR:   All right.

MS DE FERRARI:   Your Honour, I fully appreciate ‑ that is why I was saying that I was not – that the better course is probably that your Honour looks at all the evidence in the argument before having to decide on the objection, because I fully appreciate how difficult it is to…..without having heard the submissions and having looked at the evidence, particularly having heard some of the cross‑examination of Mr Arnold, as well, about some of these matters.

HIS HONOUR:   Mr Herzfeld?

MR HERZFELD:   Yes, your Honour, the first objection we were notified about the screenshots is that they are hearsay on the basis that the business record exception does not apply because the screenshots were prepared in connection with this proceeding.

HIS HONOUR:   Yes.

MR HERZFELD:   That objection is misconceived.  The document, within the definition of the Evidence Act, is the underlying information in the computerised records, and that clearly is a business record which was not prepared for the purpose of proceedings.  The screenshot is proof of the contents of that document, in accordance with section 48(1)(c) of the Evidence Act, so the hearsay objection, based on the proposition that these screenshots are not business records is misconceived.  If that objection was correct, then any photocopy of a business record, where the photocopy was prepared for court proceedings, would be inadmissible, and that is just nonsense.  In terms of the objection based on section 135, of course, what your Honour has to decide is that it is unfairly prejudicial.

In terms of the supposed incompleteness of the document, if your Honour turns to Mr Arnold’s third affidavit, please, which was filed on 22 April 2021, your Honour will see that there is quite some further detail given in paragraph 3 concerning the PIC 4001 matter, which was put on in part because the plaintiff had complained about the lack of clarity of this material, and your Honour will see that there is more expanded screenshots.  That is the first point.  The second point is that Ms De Ferrari is seeking to cross‑examine Mr Arnold, and she can ask him all of these questions.

There is no unfair prejudice in those circumstances by virtue of the fact that there may be aspects of that screenshot that at the moment the plaintiff does not understand, the plaintiff can ask questions, and further, there were processes the plaintiff could have undertaken, including, if necessary, seeking a note from a justice for the issue of a subpoena for the production of further documents.  That is the way this kind of issue should have been dealt with, not, with respect, an objection of this kind in this Court in this way.

So your Honour should not exclude any of this evidence on 135 grounds, we should get all the evidence in.  That needs to be done before the witness is cross‑examined, so we all know what the cross‑examination is proceeding on, and what the submissions are proceedings on, and the witness should then be cross‑examined, and then we can get on to submissions.  Thank you, your Honour.

HIS HONOUR:   Yes, thank you, I am satisfied that the screenshots – yes, Ms De Ferrari?

MS DE FERRARI:   Your Honour, I just wanted to briefly say that the submission about the document is misconceived, it is not a reproduction of what is…..information, this is a purposely‑constructed selection of…..particular fields, it is a creation of a completely new document for the purposes of litigation…..for example, to take an example that I am familiar, Google is sued on a particular search result that has been automatically created by…..

HIS HONOUR:   Well, Ms De Ferrari, I do not want to make this any more detailed than it already is, particularly given that it is nearly 11 o’clock and we have not actually even started on any of the evidence or any of the submissions.

MS DE FERRARI:   Yes.

HIS HONOUR:   To the extent that the document goes beyond evidence of the underlying information or the underlying content, it may be inadmissible, but the underlying information

which is relevant is a business record, and admissible on that basis.  The document is not unfairly prejudicial, nor incomplete, in light of the opportunity to cross‑examine and the further evidence given at your client’s request as to the content and the detail of the document.  So the underlying information to the screenshots is admissible as evidence via the screenshots.  Are there any further objections to the second or third affidavit which go beyond those classes of objections?

MS DE FERRARI:   No, your Honour.

HIS HONOUR:   All right.  Would it be convenient then for the witness, now, to be sworn or affirmed and for Mr Herzfeld to examine and for you to have the opportunity, then, of cross‑examining?

MS DE FERRARI:   Yes, your Honour.

HIS HONOUR:   Yes, thank you.

MR HERZFELD:   Yes, your Honour, I call David Arnold, who I think might be outside court room number two.

DAVID PATRICK ARNOLD, affirmed:

HIS HONOUR:   Yes, Mr Herzfeld.

MR HERZFELD:   Thank you, your Honour.

Mr Arnold, can you hear and see me clearly?‑‑‑Yes, I can.

Thank you.  Could you tell his Honour your full name, please?‑‑‑David Patrick Arnold.

And your professional address?‑‑‑45 Benjamin Way, Belconnen ACT.

And your occupation?‑‑‑Public servant.

And have you made three affidavits in these proceedings?‑‑‑Yes, I have.

Have you got there three application books?‑‑‑Yes, I do.

Could you turn please to, in volume 3, to page 1059?‑‑‑Yes.

Is that your first affidavit?‑‑‑Yes, it is.

And in the same volume, could you turn to page 1066?‑‑‑Yes.

Is that your second affidavit?‑‑‑Yes.

HIS HONOUR:   And that is the affidavit affirmed on 27 October 2020?‑‑‑Yes, your Honour.

Thank you.

MR HERZFELD:   And do you have there, separately, your affidavit affirmed 22 April 2021?‑‑‑Yes, I do.

And that is your third affidavit?‑‑‑Yes, that is correct.

Your Honour, I do not think I formally read those affidavits, or if I did I have forgotten, but I assume they are now taken as read.

HIS HONOUR:   Yes.  I take the first affidavit of 26 October 2020, the second affidavit of 27 October 2020 and the third affidavit of 22 April 2021 as read.

MR HERZFELD:   And, your Honour, they each have exhibits, but I assume there is no need to separately tender the exhibits.

HIS HONOUR:   Correct.

MR HERZFELD:   Thank you, your Honour.

HIS HONOUR:   Yes, Ms De Ferrari.

CROSS‑EXAMINED BY MS DE FERRARI:

MS DE FERRARI:   Thank you, your Honour.

Mr Arnold, my name is Lisa De Ferrari, I am counsel for the plaintiff in this matter.  I wanted to ask you some questions, starting with your first affidavit.  I will call them first, second and third.‑‑‑Yes.

Now, have you got a copy of that affidavit?‑‑‑Yes, I do.

Yes.  So you say, in the first paragraph, that you are “the Director of Protection Assessment Support Section”, or at least you were when you affirmed the affidavit?‑‑‑Sorry, you broke up there, I beg your pardon?

…..position?‑‑‑Am I still in that position?

Are you still the Director of…..?‑‑‑No.

Can you hear me?‑‑‑Yes, I can now, my response was no.

You are not in that position.  All right.  So can you tell the Court when you ceased to be in the position of Director of Protection Assessment Support Section?‑‑‑April of 2021.

Thank you.  And what position are you in now?‑‑‑The Acting Assistant Secretary of the Settlement Programs Operations Branch.

Thank you.  Now, are you legally qualified?‑‑‑No.

Have you studied law?‑‑‑No.

Thank you.  Now, you say in your affidavit that your role is to provide policy guidance, amongst other matters, to what you describe as “protection visa processing officers”, being officers that assess “permanent and temporary protection” visas and what are usually known as SHEVs.  I take it that protection visa processing officers does not include those officers within VACCU or the section that deals with visa assessment and character concerns?‑‑‑Yes, that is correct, does not include.

It does not include them?‑‑‑That is correct.

Right.  So, is protection visa processing officers, then, another word for those officers that assess under section 65 of the Act?‑‑‑Could you just repeat the question, I am sorry?

Is this expression that you have used, which is “protection visa processing officers”, is that another way to refer to delegates of the Minister that assess under section 65 of the Act?‑‑‑Some of those section 65 delegates do form part of that group of officers, but not all.

Who else is included in that group of officers?‑‑‑There are junior officers that do administrative‑type functions such as applications being received, et cetera.

I did not hear what that ‑ I heard “junior officers”.  All right.  So, you also say that your role included providing advice to those protection visa processing officers.  Now, I take it that, because you were providing advice to, among other matters, officers that deal with section 65, are delegates for the purposes section 65, you have some familiarity with the Act and how it works in terms of decision‑making?‑‑‑My section did, yes.

You do not?‑‑‑No, I do, and my section does as well, as it indicates there.

Yes.  You must have some familiarity, otherwise you cannot provide advice, can you?‑‑‑Yes, I am familiar.

So you are familiar with what is required for a visa application to be valid?‑‑‑Yes, I am.

You are familiar with the operation or definition of provisions such as 5H and 5J and so on?‑‑‑No, not without referencing what those are, specifically.

Right.  If I told you that they define who is a refugee and what well‑founded fear of persecution means, does that ring a bell?‑‑‑Yes.

Right.  You are familiar with the effect of section 36(1C)?‑‑‑Yes.

You are familiar with the effect of section 91W?‑‑‑I would have to refresh my memory on 91W.

Yes, well, if I say that section 91W, 91WA and 91WB deal only with protection visas, which is what you gave advice about, and when a visa, a protection visa must be refused, does that ring a bell?‑‑‑No.

When it must be refused because of a bogus document, for example, you do not have any recollection of those provisions?‑‑‑With mentioning bogus document, I do recall now.

And I take it you are familiar with the effect of section 65?‑‑‑Yes.

The terms of effect of section 501?‑‑‑Yes.

Yes.  Now, I understand that you were told that to have some documents with you that I might take you to, and the documents I wanted to take you to are annexures to an affidavit of Ms Joanna Abraham, the first affidavit, have you got those affidavits of Ms Abraham with you?‑‑‑If you could point me towards which volume, it would be appreciated.

Unfortunately, I do not have the same materials as you do, I do not have them in the same way, as volumes, as you do.‑‑‑I see.

MR HERZFELD:   If I can assist, the first of Ms Abraham’s affidavit is in volume 1 of the application book starting on page 64.

THE WITNESS:   Yes, I have that in front of me now.

MS DE FERRARI:   Yes.  Are you able to find, in that volume, the commencement of an annexure that is called annexure JSA‑13?‑‑‑13?

I have a page number in blue at the bottom that says page 181, but I do not know if that helps you or not.

MR HERZFELD:   It is page 243 of the application book.

MS DE FERRARI:   Yes?‑‑‑Yes.

And so the first page of this document, that I have in front of me, says “PAM ‑ s501 – The character test, visa refusal and visa cancellation”. Is that the document that you have?‑‑‑Yes, I do.

I take it that, in your role of advising and providing policy guidance, you are familiar with this policy document?‑‑‑No.

Have you seen this policy document before?‑‑‑Yes.

But you are not familiar with what it says?‑‑‑If I understood you correctly, you asked, “to provide advice”?

No, I am saying your role is to provide policy guidance and advice to protection visa processing officers.‑‑‑Yes, that is correct.

And it is, in fact, only to those officers that deal with permanent and temporary protection visas and SHEVs?‑‑‑Correct.

Yes.  And this document is a policy document?‑‑‑Yes.

And you said you are familiar with section 501?‑‑‑Yes.

And this is a policy document about section 501?‑‑‑Sorry, could you repeat the beginning of your question? Sorry, you dropped out.

Do you agree that this is a policy document about section 501?‑‑‑Yes, I do.

Yes.  So are you familiar with the contents of this policy?‑‑‑No.

I see.  And you have not had occasion to look at this document in preparation for today?‑‑‑This particular PAM, or the entire portfolio?  Sorry, the procedural – the 501?

No, this particular PAM, the 501?‑‑‑No.

No. But you know, do you not, that this case involves, amongst other matters, a decision under section 501?‑‑‑Yes, I am aware.

And then, after an AAT decision that was favourable to my client, the reversal of that AAT decision under section 501A? It is involved in this proceeding, you are familiar with that?‑‑‑Yes.

Yes. But you did not refresh your memory as to what the relevant policies in section 501 ‑ with respect to section 501 are?

MR HERZFELD:   I object.  Your Honour, I am sorry, but why is this witness’ preparation for the hearing today relevant at all?

HIS HONOUR:   Ms De Ferrari, do you want to answer that question in the presence of the witness?

MS DE FERRARI:   I am happy to answer it in the presence of the witness.  He gave evidence about what is a departmental practice, and my question ultimately would be, where is this departmental practice?

HIS HONOUR:   Well, we are going to spend a very, very long time in cross‑examination if you are taking him to policies that are not annexed to his affidavit, but are annexed to somebody else’s affidavit, and are asking him to go through the detail of those policies, when he has already given in evidence that he is not familiar with them.

MS DE FERRARI:   No, I understand, your Honour.  Can I take you to another exhibit in that affidavit, and that is JSA‑14, which in the blue numbering at the bottom is page 225?‑‑‑I’ll just see if I’ve got the right portfolio.

MR HERZFELD:   I think that might be page 286 of the book.

THE WITNESS:   Which volume, sorry?

MR HERZFELD:   In volume 1.

THE WITNESS:   And again, forgive me, what page number?

MR HERZFELD:   I think it is page 286.

THE WITNESS:   Yes, I have that in front of me now.

MS DE FERRARI:   So, it should say “PAM – Protection visas – All applications – Common processing guidelines”?‑‑‑Yes.

Is this a document with which you are familiar?‑‑‑Yes.

All right.  Now, you talk about ‑ in your affidavit, about – first affidavit, at paragraph 3, about departmental practice.  Is that departmental practice to be found anywhere in this policy document?‑‑‑Which practice are you referring to, specifically?

I am referring to the departmental practice that you are referring to in your affidavit, first affidavit, at paragraph 3 “As a matter of departmental practice”?‑‑‑No.

No.  And it is the case, is it not, that this departmental practice is not to be found in any document of the Department?‑‑‑I don’t know.

Well, you are here to give evidence about the departmental practice.  Is it in a document of the Department?

MR HERZFELD:   I object.  The witness gave an answer that he did not know.

HIS HONOUR:   Yes, thank you, Mr Herzfeld.  I think the witness has answered that question, Ms De Ferrari.

MS DE FERRARI:   Yes.

All right.  Well, let me ask you another question.  How many ‑ when you were in the role, say, for a year that you were in the role, how many protection visa processing officers, roughly, would you say have been employed within the Department in a year, in a calendar year, including those that were there for a few months and then left, how many?‑‑‑I don’t know.

But your responsibility was to provide policy guidance and advice to them, but you have no idea, even as a rough estimate, how many of them?‑‑‑No.

There were more than just a few dozens, would you agree?‑‑‑Yes.

More than a couple of hundreds?‑‑‑I don’t know.

Right.  Now, how – you talk about a departmental practice, is that a departmental practice that, it is your understanding, had to be followed by the protection visa processing officers that you gave advice to?  And policy guidance?‑‑‑I don’t know about that recorded departmental practice that you referred to, per my previous answer, unless I misunderstood your question.

But you say it exists, that there is a departmental practice, that is your evidence, it exists.

MR HERZFELD:   Your Honour, it may be that Ms De Ferrari should clarify precisely what practice she is referring to, because there may be some confusion on that.

THE WITNESS:   Yes.

MS DE FERRARI:   If you go back to your first ‑ ‑ ‑ 

HIS HONOUR:   …..you are talking about paragraph 3, I think, Ms De Ferrari.

MS DE FERRARI:   Your paragraph 3 of your first affidavit submission says, “As a matter of departmental practice, a preliminary or indicative assessment”?‑‑‑Yes.

Right.  So you are giving evidence that that departmental practice exists?‑‑‑Yes, that is correct.  Sorry, I had misunderstood your question.

It is your evidence that it exists?‑‑‑Yes.  No, sorry, to your question about should it be followed, yes.

But your evidence is that it exists?‑‑‑Sorry, I – forgive me, I put ‑ ‑ ‑ 

You say, as a matter of departmental practice?‑‑‑Sorry, forgive me, I thought your question was, are they ‑ are the processing officers required to follow it.

No?‑‑‑I’m sorry.

I am asking you – your evidence ‑ is the correct understanding of paragraph 3 that that departmental practice exists?‑‑‑Yes.

That is your evidence, that it exists?‑‑‑Yes.

Where is it recorded?‑‑‑I don’t know.

It is not recorded anywhere, is it?  Does it exist?

MR HERZFELD:   I object.  I object.  The witness has now given twice the answer that he does not know.

HIS HONOUR:   Thank you, Mr Herzfeld, I think he has actually said three things ‑ the first time he said he was unclear whether it was in a document, the second time he said he was not sure whether it was written down, and he has said that the practice did exist.

MS DE FERRARI:   Well, you provide advice – you were appointed to the role of providing operational policy guidance and advice to these officers.  Can you tell the Court how these officers were given policy guidance and advice about how to follow this departmental practice?  Where did they find it, who told them about it?‑‑‑I don’t know.

I see.  Well, I put it to you that it does not exist.  You do not know if it exists or not?‑‑‑Sorry?

MR HERZFELD:   I object ‑ ‑ ‑ 

HIS HONOUR:   Well, Ms De Ferrari ‑ this is the fifth time you have asked that question, Ms De Ferrari, I think he has said four times that it does exist.  It is unlikely you are going to get a different answer.

MS DE FERRARI:   Yes.

Now, at paragraph 3 of that first affidavit, you also say that the results are only “preliminary or indicative assessments of the criteria in Part 790.22”.  You are familiar with the criteria that are in Part 790.22?‑‑‑Yes, if you could provide me a description of it, just to be sure.

Well, 790 is a subclass of temporary protection visa also known as a SHEV, yes?‑‑‑Yes.

So Part 790 sets out the criteria to be made at the time of application and criteria…..at the time of decision?  Yes?‑‑‑Yes.

All right.  Now, you say in that paragraph that these preliminary or indicative assessments are made prior to any visa refusal?‑‑‑Yes.

You see that, at paragraph 3.  I take it that by “visa refusal” you mean the actual recording of a decision, as required by section 67 of the Act?‑‑‑Yes.

Thank you.  Now, can I ask you now to go to paragraph 3 of your second affidavit, which was affirmed on 27 October 2020?‑‑‑Dated the 27th?

27 October 2020, yes, Mr Arnold?‑‑‑Yes, I have it in front of me now.

Now, so, that paragraph 3 is intended to refer back to the paragraph 3 of the first affidavit that we were talking about, you see that?‑‑‑Yes.

Yes.  Now, you say there that “The preliminary or indicative assessments . . . are often made by different officers”, some that might have a delegation under section 65, and some may not?‑‑‑That’s correct.

You see that?‑‑‑Yes.

So, you look at that paragraph 3 and the paragraph 3 in the first affidavit, are these preliminary or indicative assessments only in respect of the criteria that are in Part 790 of the regulations?  Or are they also in respect of criteria under the Act?‑‑‑I don’t know.

I see.  All right.  Now, I want to understand what these preliminary or indicative assessments are, and how it works that different officers may make them in respect of the one application.  Now, let us assume that what you said in your first affidavit limited the universe to indicative assessment in respect of Part 790 of the regulation.  All right?  So, not in terms of the criteria under the Act, such as section 361C that you said you are familiar with?‑‑‑Yes.

Not those, not under the Act, just under the Part 790.  All right.  So is it possible, according to this departmental practice, to have, say, three officers, officers A, B and C, that are looking at differing criteria in respect of the one application for a protection visa?‑‑‑I don’t know.

All right.  I will move to another topic.  Do you have with you the affidavit of Ms Tattersall?‑‑‑If I can be assisted as to where that would be located I’ll ‑ ‑ ‑

MS DE FERRARI:   Yes, I will have to ask ‑ ‑ ‑ 

HIS HONOUR:   Yes, Mr Herzfeld ‑ ‑ ‑ 

MR HERZFELD:   It is in volume 2 of the application – yes, I am sorry, your Honour, volume 2 of the application book at page 772.

THE WITNESS:   Yes.

MS DE FERRARI:   Now ‑ ‑ ‑ 

HIS HONOUR:   Sorry, Ms De Ferrari, I am not working from the application book, but I have the affidavits separately, do you have the court page number of that particular affidavit?

MS DE FERRARI:   I have it as a separate affidavit, as a stand‑alone ‑ ‑ ‑ 

HIS HONOUR:   I have the affidavit, it is just if you take the witness to any particular page number ‑ ‑ ‑ 

MS DE FERRARI:   Yes, I will give ‑ ‑ ‑ 

HIS HONOUR:   ‑ ‑ ‑ if you can give the court page as well, thank you.

MS DE FERRARI:   The blue numbering at the bottom, yes, your Honour.

HIS HONOUR:   Yes.

MS DE FERRARI:   So, Mr Arnold, are you familiar with what VACCU stands for?‑‑‑I’m sorry, you dropped out then.

I apologise.  Are you familiar with the acronym VACCU, and what it stands for?‑‑‑Yes, I am.

What does it stand for?‑‑‑Can I just refer to this so I get it accurate?

Yes, of course.‑‑‑Visa Applicant Character Consideration Unit.

Thank you.  Now, can you go to page 6, blue page 6 of that affidavit?‑‑‑Again, if I could be assisted to what that is in my ‑ ‑ ‑ 

MR HERZFELD:   Yes, I think it is – yes, I am sorry, we are all working off different pages, page 777 of the application book, which I think has a 6 up the top.

THE WITNESS:   Yes, I have that in front of me.

MS DE FERRARI:   Right.  That should be an email from Daniela to VACCU, do you see that?‑‑‑Yes, I do.

Of 16 February 2017?‑‑‑Yes.

Now, and you see the text says “Hi Vaccu Team, Please see attached referral” for the plaintiff “for your analysis”?‑‑‑Yes.

Are you familiar with the process by which applications are referred to VACCU?‑‑‑Yes.

Who does the referral?‑‑‑The protection visa processing officers.

All right, let me ask you another question.  In respect of one visa application, how many processing visa ‑ protection visa processing officers that are exercising the duty under section 65 are there?‑‑‑I don’t know.

MR HERZFELD:   I object, the witness has given an answer, your Honour…..

HIS HONOUR:   Yes, I think he did answer that question about 15 minutes ago.

MS DE FERRARI:   I apologise, I was not asking how many there are in total, I was asking for each application, how many processing officers are ones that are exercising the duty under section 65, for the one application.

MR HERZFELD:   I object.  First of all the witness just answered the question “I do not know”, second of all, in any event, it has legal issues wrapped up in it, so it is objectionable on two bases, but in any event, it was answered by the witness, “I do not know”, about 30 seconds ago.

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

MS DE FERRARI:   All right.  Now, can I go to the next page of that document, that page is the attached referral, referred in the email.  You see that?  It should be a document that starts “Department of Immigration and Border Protection Visa Applicant Character Consideration Unit?‑‑‑Yes.

“s501 Case Referral Pro‑forma”?‑‑‑Yes, I have that in front of me.

Are you familiar, not with this document as filled up, but are you familiar with this pro‑forma that is used for the referral?‑‑‑No.

Have you seen this document before?‑‑‑This document in front of me?

This document in front of you?‑‑‑As populated?

As populated?‑‑‑Yes, I have.

All right.  Can you go to the second page of that document?‑‑‑Yes.

There is a box where, in white text over black, is written, “mandatory documents checklist”, do you see that?‑‑‑Yes.

Are you familiar – so, do you understand what is set out there in terms of what that checklist means?‑‑‑Yes.

MR HERZFELD:   I object.

HIS HONOUR:   Well, Mr Herzfeld, he can give evidence as to what the Department practice is, or what he understands the Department practice to be, and about the approach that is taken in relation to these matters.

MR HERZFELD:   And I think he just did, your Honour, so – he said yes.

HIS HONOUR:   All right.

MS DE FERRARI:   So, you see that there are a number of rows, and the first row is ticked in this checklist.  Do you see that?‑‑‑Yes.

You see there, it says “Applicant is Schedule 2 criteria met OR the applicant presents an immediate risk that warrants referral”?‑‑‑Yes.

Are you able to say what “Applicant is Schedule 2 criteria met” means?‑‑‑Before the – noting character remains a Schedule 2 requirement, which has been met in this instance, before referral, means that there was an indicative assessment done on section 36.

Can you say where you get that information about the character not having been done, and that that refers to section 36?‑‑‑The fact ‑ ‑ ‑ 

Where do we get that from?‑‑‑Well, the fact that this pro‑forma has been populated, and the email was referred to VACCU.

So, what does that mean?‑‑‑It has been referred for a section 501 character assessment.

Yes, so what does “Applicant is Schedule 2 criteria met” mean?‑‑‑As per my previous answer.

But I did not understand it, could you repeat it?

HIS HONOUR:   The previous answer was that an indicative assessment had been done in relation to section 36.

MS DE FERRARI:   But section 36 is not in Schedule 2, is it?

MR HERZFELD:   I object, your Honour, some of the matters in Schedule 2 do refer back to section 36.

HIS HONOUR:   Yes.

MR HERZFELD:   One of the criteria in Schedule 2 does pick up section 36.

HIS HONOUR:   We are going to be here for a very, very long time if the cross‑examination is going to descend to the level of accuracy of particular provisions in the Migration Act and the regulations.

MS DE FERRARI:   So your evidence is that “Schedule 2 criteria met” is that there is an assessment being done about section 36?‑‑‑Indicative.

MR HERZFELD:   I object, that was not his evidence.

THE WITNESS:   Yes.

HIS HONOUR:   Yes.

MS DE FERRARI:   Indicative assessment, of section 36.

HIS HONOUR:   Ms De Ferrari, I think that the evidence was, and I think consistent with his evidence earlier, was that an indicative or preliminary assessment is done prior to any referral, and his evidence in relation to the mandatory documents checklist was that an indicative assessment was done on section 36.

MS DE FERRARI:   I put it to you that Schedule 2 criteria is, in fact, a reference to the criteria which, relevant to a SHEV, are in Part 790.  What do you say about that?‑‑‑I don’t understand your question, sorry.

I put it to you that Schedule 2 criteria is, in fact, a reference to all of the criteria that are in Schedule 2 of the regulations, which, relevantly to a SHEV, are in Part 790.  What do you say about that?‑‑‑No.

HIS HONOUR:   Just before Mr Arnold answers the question, Ms De Ferrari, you are not, I take it, asking Mr Arnold to interpret the meaning of a particular document.  As I understand your questions, you are asking him about what the Department practice is in relation to that, is that right?

MS DE FERRARI:   Well, your Honour, I am doing it by way of ‑ ‑ ‑ 

HIS HONOUR:   The question of the meaning of a particular word is a question of law and would be a matter for this Court to determine on your submissions.  If you are asking about what the Department’s practice is in relation to that, that is a different issue.

MS DE FERRARI:   Well, your Honour, really, this is the only witness that is being put forward from the Department, and I am doing no more than putting, by way of discharging the obligation of Browne v Dunn, what my client’s case is as to what that actually means and giving an opportunity to respond to that.

HIS HONOUR:   All right.  Well, I think he answered the question, in any event.

MS DE FERRARI:   Yes, yes.

Now, you said you are familiar with the referral to VACCU.  Is it your understanding that there is a departmental policy about referral to VACCU or is that a direction of the Minister under section 499?‑‑‑I don’t know.

All right.  Now, in terms of this referral to VACCU by the protection visa processing officers, does a protection visa processing officer have a discretion not to refer to VACCU?‑‑‑I don’t know.

All right.  Can you move to the next page of that affidavit?‑‑‑Could you just read me the title, to make sure I’ve got the right page in front of me?

Yes, it should be an email that says from VACCU, sent on 17 February, to Daniela?‑‑‑Yes.

Now, so this is the response to what Daniela sent by that referral form, do you agree?‑‑‑I don’t know if it’s a specific response to that very email, but it’s certainly a response from VACCU.

I see.  Well, if you go to the next page, you see how it is an email chain?‑‑‑Yes.

So a response to that email? Yes. You see, after the details of my client, it says “We have assessed your referral under s501 of the Migration Act 1958 (the Act) regarding the above named client and have determined that” – and then, in bold “Client is Liable under s501 Your client is being considered for refusal of their visa application under s501(1)”. Now, you said you are familiar with the process of referral to VACCU under section 501?‑‑‑Yes.

And you said you – and your evidence, as well, is that you looked at various ICSE documents regarding my client?‑‑‑Sorry, could you just repeat your question?  It cut out again.

Sorry.  Your affidavit annexes a number of ICSE screenshots about my client.‑‑‑Yes.

Right.  So, was it you that did the searches to produce those ICSE screenshots?‑‑‑No.

Someone else produced them?‑‑‑Yes.

And gave them to you?‑‑‑Yes.

Did they explain to you what they meant?‑‑‑I understood what they meant, so no.

Right.  Now, you yourself did not make any inquiries of ICSE about my client?‑‑‑No.

You did not interrogate that database at all?‑‑‑No.

But you are not aware, are you, of anything that suggests consideration of section 501 prior to this email of 17 February 2017, are you?‑‑‑No.

In respect of my client? This is, in fact, when section 501 consideration commences, is that not the case?‑‑‑I don’t know.

Well, I put it to you that it is, given the terms of that letter.

HIS HONOUR:   Well, he said he does not know, Ms De Ferrari.

MS DE FERRARI:   Yes, I understand.

Now, just staying with the ICSE screenshots that were – is it one individual that prepared them and gave them to you, or a number of individuals?‑‑‑I don’t know.

Well, can you go back to your first affidavit, and look at the first two screenshots that are exhibited to that affidavit, in one page?  Have you got that?  The first one starts with an icon and then “Permission Request”, and there are two screenshots on the one page.  It does not have a page – it has got a page number 5 at the top?‑‑‑Yes, okay, yes, and does the first screenshot have a row highlighted in black?

Yes, and the second one has got three.?‑‑‑Three, that is – yes, I’ve got that in front of me.

Yes.  What does the selection of those rows in black mean?‑‑‑It indicates that there was a requirement that the applicant, in the first instance, signs the Australian Values Statement.

And is that satisfied?‑‑‑I don’t know, from this screenshot.

What do the three black rows in the second one mean?‑‑‑They rate – relate, rather, to public interest criteria that need to be satisfied before the grant of a visa.

And was PIC 4003A satisfied?‑‑‑It was not required.

And what about PIC 4001?‑‑‑It was satisfied for offshore but was required for onshore, in this screenshot.  So, at the time this screenshot was taken, the onshore PIC 4001 was not satisfied.

But the offshore was satisfied?‑‑‑That is correct.

Where do you get that information from?  No, no, it is just from that screenshot?‑‑‑Sorry, I was relating back to part of my affidavit.

No, no, but I am asking you about the screenshot.‑‑‑Well, if it says “Required,IRAN,Commonwealth Statutory Declaration”, I understand that to be either the provision of a statutory declaration or a penal waiver.

I thought your evidence was that offshore was satisfied?‑‑‑Yes, through a penal waiver.

Are you aware how PIC 4001 has four paragraphs?‑‑‑I could refer to it, to refresh my memory.

Yes, if you have a copy?‑‑‑I might just seek some advice as to where – I think that’s in one of the annexures.

MR HERZFELD:   In volume 1 of the application book on page 62 there is a copy of PIC 4001.

THE WITNESS:   62.  Yes, I have that in front of me now.

MS DE FERRARI:   Which paragraphs are offshore and which ones are onshore?‑‑‑None.

I see.  Just back to the screenshot, so your evidence is that onshore was not satisfied but offshore was satisfied?‑‑‑Yes.

Who is the officer that determined that offshore was satisfied?  Just looking at the screenshot?‑‑‑I don’t know, sorry.

Who is the officer that determined that onshore was not satisfied?‑‑‑I don’t know.

Well, where do we find out who those officers were?‑‑‑I don’t know.

MR HERZFELD:   I object.

HIS HONOUR:   Well, the witness can answer the question.  If there is a departmental practice or some information in the document to which he can give evidence to, then the witness is able to answer the question.

MR HERZFELD:   He already did, he said “I do not know”, that is why I slumped down in my chair.

MS DE FERRARI:   The truth of the matter is that you are not able to give any evidence contradicting the proposition that a delegate known as Marie‑Nelly was, in fact, satisfied on or about 18 November 2016 of every criteria for the grant of the visa, can you?‑‑‑Could you just repeat that for me, please?

You are not able to give any evidence to contradict the proposition that an officer known as Marie‑Nelly, on or about 18 November 2016, was satisfied as to all the criteria for the grant of the visa?‑‑‑And could you just repeat the date?

On or about 18 November 2016?‑‑‑Given a referral to VACCU was undertaken on Thursday 16 February 2017, then not all of Schedule 2 would have been satisfied.

Let me clear about that.  Your only basis for thinking that some criterion was not satisfied in the opinion of Marie‑Nelly was because a referral occurred.

MR HERZFELD:   I object to this, your Honour, the witness has given detailed affidavit evidence about what criteria were not satisfied and why, including in his third affidavit, to which he has not been taken.  What is being put to him is not a fair reflection of his evidence.

HIS HONOUR:   I think that is a fair objection, Ms De Ferrari.  If you are going to put the question, you should put the question on the basis of each of the matters to which he has given evidence, based upon the documents and the underlying information.

MS DE FERRARI:   Well, I do apologise for the unfairness to you, Mr Arnold.  Let us look at your affidavit number three.  So that affidavit, again, has a number of screenshots?‑‑‑Yes.

And, again, were those screenshots prepared for you?‑‑‑Yes.

Did you have any say in how they would be prepared?‑‑‑No.

Did you have any say – you see, on the first page of the screenshots, that the bottom one has a number of windows, one on top of the other, can you see that?‑‑‑Yes, I can.

And so there is – and the last window is a pop‑up window called “Event Additional Information Detail”, you see that?‑‑‑Yes.

You agree that is a pop‑up window on top of the other windows?‑‑‑Yes, I do.

You had no say about which pop‑up windows to create to get the additional information that was behind these fields, did you?‑‑‑No.

It was all done by someone else?‑‑‑Yes.

All right.  Now, that second one talks about – the highlighted row says “Note”, “MAL Narrative below”, do you see that?‑‑‑Yes.

And is that the pop‑up window that you get to try and get the information that lies behind that row?‑‑‑Yes, that’s correct.

Right.  Are you able to say who inserted that MAL narrative on 15 October 2015?‑‑‑Not definitively, although Marie‑Nelly created the event on the 18th of the 11th, but no, I don’t, I can’t see it.

Are you able to explain how you know that Marie‑Nelly created the event on 18 November?‑‑‑Just above the pop‑out box.

Right.  And the event is a PIC 4001 check?‑‑‑Yes.

And the qualifier is onshore?‑‑‑Yes.

What is the result of that event?‑‑‑I cannot see from this screenshot.

Well, can you look at anything in your affidavit, and if you need to ‑ seek to look at other affidavits as well, by all means do so, and indicate to me, where does one find what Marie‑Nelly – the totality of Marie‑Nelly did in respect of PIC 4001?‑‑‑From my affidavit, no.

All right.  Now, so, at paragraph 5 ‑ no, at paragraph 3 you refer to paragraph 5 of your first affidavit, and you said ‑ you referred to the fact that at paragraph 5 of the first affidavit you could find “no record of any preliminary or indicative assessment of clause 790.226 (insofar as it refers to public interest criterion 4001)”.  What would a preliminary or indicative assessment of clause 790.226 look like, in ICSE?‑‑‑In where, I beg your pardon?

In ICSE, what would it look like?‑‑‑Sorry, I think – the term is ICSE, sorry, I think I have got it, yes.

ICSE, okay.  Sorry?‑‑‑Could you repeat the question, please?

What would it look like?  What would a preliminary or indicative assessment of clause 790.226 look like in ICSE?‑‑‑It would be a note indicating if a preliminary assessment was undertaken, in usual circumstances.

A note to which event?‑‑‑It would be the PIC 4001 onshore, and then with a subsequent note of what assessment was undertaken.

I see.  So as far as you can tell, there was no assessment from Marie‑Nelly, or anyone else, about PIC 4001, either onshore or offshore, having been satisfied?‑‑‑Could you just repeat that again for me, please?  Sorry.

As far as you can tell, there was no assessment – preliminary or indicative assessment, of PIC 4001 being satisfied, for either onshore or offshore?‑‑‑Being satisfied?

Yes, preliminarily or indicatively satisfied?‑‑‑Certainly not satisfied, but I note 18/11, for the purposes of offshore, an assessment was required for the country of Iran, based on the ICSE screenshot.

I thought your evidence in respect of your first affidavit was that offshore was not required, because there was a clearance? ‑‑‑Yes, that is the next line in the same screenshot I am reading from “Waiver Result”, “Check Waived”.

So does that mean it is satisfied?‑‑‑Yes, sorry.

So there is some assessment of PIC 4001 being satisfied.

MR HERZFELD:   I object, the witness’ evidence was that the offshore requirement in relation to Iran was waived, it was not that there was an assessment in relation to that part of PIC 4001.

HIS HONOUR:   Yes.

MS DE FERRARI:   I see.

HIS HONOUR:   Perhaps you could put the question, Ms De Ferrari, a bit more precisely.

MS DE FERRARI:   What is your understanding as to what remained to be done in terms of PIC 4001 for the offshore component, such as it is in those four paragraphs of PIC 4001?  What remained to be done before Marie‑Nelly could be satisfied, for the purpose of section 65, that it was satisfied?  What remained to be done?‑‑‑At which particular time?

After the waiver?‑‑‑After the waiver?

Yes?‑‑‑So if the requirement is waived, it doesn’t need to be satisfied, or it is by default satisfied, because we have waived the requirement.

That is correct, is it?  A waiver means that it is satisfied?‑‑‑Yes.

Because there is no ability under the Act or the regulations to actually waive a requirement, a criterion?‑‑‑I can’t answer that question specifically.

So, after the waiver, there was nothing left to be done for Marie‑Nelly to be satisfied that the offshore part of PIC 4001 was satisfied?‑‑‑From what I can tell, no.

Right.  So it is not correct, is it, what you say, that, in fact, there is no – you see how in subparagraph c of your paragraph 3 you say “I found no record of any preliminary or indicative of the ‘offshore’ element”.  That is not correct, is it?

MR HERZFELD:   I object, your Honour, this is the same objection that I made before, that what the evidence is and what is said there is that the requirement to obtain a certificate was waived.  That is not inconsistent with there being no record of an assessment, the whole point of the requirement being waived is that there is not an assessment.  The question proceeds – I am sorry, your Honour.

HIS HONOUR:   Mr Herzfeld, you can make that submission as a matter of law.  I am not actually sure where the cross‑examination is going, in any event, but I will let Ms De Ferrari ask the question about paragraph c if she needs any further clarification from the witness as to what is meant by paragraph c or whether there is any aspect of paragraph c that is inaccurate.

MR HERZFELD:   As your Honour pleases.

MS DE FERRARI:   I put it to you that the fact that there was consideration of the offshore element being required and then a waiver was indicated means that there was, in fact, a preliminary or indicative assessment of the offshore element of PIC 4001.

HIS HONOUR:   Ms De Ferrari, I am not sure that Mr Arnold has paragraph 3c in front of him, but it may help.

THE WITNESS:   Your Honour, I do, assuming it is ‑ ‑ ‑ 

HIS HONOUR:   Yes.

THE WITNESS:   Sorry, forgive me, was that from my affidavit of 22 April 2021?

MS DE FERRARI:   Yes, it is?‑‑‑Well, in the screenshots attached to this affidavit – let me just check – no, there was no assessment done.

What – can you explain to me what is meant by “preliminary or indicative assessment”?‑‑‑Just trying to find a way to describe it to you is – you could liken it to a very broad check, possibly against a checklist, maybe, of what needs to be looked at, that then further decides where that case may be triaged.

You know that in this case, Marie‑Nelly did an assessment that the plaintiff was someone in respect of whom Australia’s protection obligations were engaged?

MR HERZFELD:   I object, your Honour, if you look at her assessment, it says “indicatively met” at the top.  This is now, I think, the second or third time that Ms De Ferrari has put to this witness the notion of an assessment without qualifying it by “preliminary or indicative”, and that is one of the issues in this case.  She needs to describe…..properly.

HIS HONOUR:   Thank you, Mr Herzfeld.  Ms De Ferrari, what might speed this process up is if you take Mr Arnold to the particular matters in the particular screenshots, read from the particular line, and ask him about that.

MS DE FERRARI:   Yes, your Honour.  Well, the problem is that he does not actually exhibit that, that is exhibited by Ms Tattersall.

MR HERZFELD:   It is volume 2 of the application book, page 782.

MS DE FERRARI:   Actually, your Honour, if I may go to Ms Abraham’s third affidavit.  Yes, at page blue, it is page 182.  Do you have that?  It starts with “Note type: Event:  Correspondence Sent (Portal) – ‑ ‑?Yes.

“Recorded by:  STEPHEN”.  Now, are these some of the values that sit behind some of the entries in ICSE?‑‑‑Yes.

All right.  So the page 184, if you look at the second entry, you see how it says “Note type:  Event:  Refugee Determination / Not Found to be a Refugee?‑‑‑Yes.

That does not say “preliminary or indicative assessment”, is that correct?‑‑‑In that line, no, it does not say that.

Is that also still a preliminary or indicative assessment, or is it final?‑‑‑I don’t know.

All right.  So, the one above says “Event:  Complementary Assessment / Indicatively Met”, is that an example of a preliminary or indicative assessment?‑‑‑Yes.

So, when she says “I am satisfied that there are substantial grounds for believing” and so on and so on, “Therefore the applicant is a person in respect of whom Australia has protection obligations as outlined in section 36(2)(aa)” who or when might revisit that indicative assessment?‑‑‑I would say, when the section 65 delegate turns their mind to finalising the application.

And who was the section 65 delegate?‑‑‑I don’t know.

It was Marie‑Nelly, was it not?‑‑‑I don’t know.

I think it is – it was considered by the Minister that it was Marie‑Nelly.

MR HERZFELD:   I object to that.

HIS HONOUR:   Yes, thank you, Mr Herzfeld.  Ms De Ferrari, the witness has said he does not know.  You do not need to give evidence.

MS DE FERRARI:   I see.

So that could be changed by a section 65 delegate?‑‑‑If they felt it appropriate to do, based on evidence before them.

Right.  And would an officer that does not hold a delegation under section 65 under departmental practice, would such an officer be able to make an indicative assessment such as the one that we have just been talking about?‑‑‑Sorry, could you just repeat the question, so I understand it?

Yes.  So, one of the protection officers that, in your previous position, you gave advice to, and you, including terms of policy, so one of those, who does not hold a delegation under section 65, under the departmental practice of which you speak about in your affidavit, would that officer be able to make an indicative assessment such as the one that we have just been talking about?‑‑‑I don’t know.

I do not have any further questions for this witness, your Honour.

HIS HONOUR:   Thank you.  Mr Herzfeld, any re‑examination?

MR HERZFELD:   No, your Honour.

HIS HONOUR:   Thank you.  Thank you for your evidence, Mr Arnold.  You can be excused now.

THE WITNESS:   Thanks, your Honour.

THE WITNESS WITHDREW

HIS HONOUR:   Yes, Ms De Ferrari, what I propose to do is, if you are now going to start with your substantive submissions, I will sit through until, say, a quarter to one, and then perhaps, over the luncheon adjournment, if you and Mr Herzfeld could confer in relation to time, but I propose to adjourn at the usual time at a quarter past four, and the two of you may wish to work out how much time between yourselves should be allocated, so you will need to work out how much time needs to be left for Mr Herzfeld to make his submissions.

MR HERZFELD:   Thank you, your Honour.

HIS HONOUR:   Yes, Ms De Ferrari.  Ms De Ferrari, I can see that you are speaking, but I cannot hear anything, unfortunately.  I still cannot hear anything.

MR HERZFELD:   We cannot hear anything either, so I think Ms De Ferrari might be on mute or have run out of batteries.

HIS HONOUR:   At least we lasted through the witness.  She has now disappeared from my screen.  I might adjourn briefly and see if the Court can reconnect.

AT 12.13 PM SHORT ADJOURNMENT

UPON RESUMING AT 12.20 PM:

HIS HONOUR:   Yes, Ms De Ferrari.

MS DE FERRARI:   Thank you, your Honour.  What I propose to do is go fairly speedily through the affidavits of Ms Abraham to identify the chronology and, really, some relevant documents in this case.  So starting from the first affidavit, your Honour, your Honour will see that, from paragraph 8, that:

On 25 September 2015, the Plaintiff pleaded guilty to –

three charges. Your Honour does not see it there, but your Honour will see it in both the transcript of the sentencing judge and also in the decision of the AAT, he was sentenced to 10 months on each charge, to be served concurrently with a non‑parole period of three months. The relevance of that is that, from that point onwards, the plaintiff has a substantial criminal record, as that expression is defined in section 501(7)(d), and that meant that, from that date, 25 September, he could never again pass the character test in subsection (6) of section 501.

Your Honour will see, then, there is a reference in paragraph 10 that the defendant, the Minister, had determined at some point that section 46A(1), the statutory bar should not apply to the plaintiff in respect of an application for a SHEV.  Now, I will not take your Honour to it, but we were provided with the documents later, and the documents are in the third affidavit of Ms Abraham, and the decision to lift section 46A was made in fact, on 18 April 2016 by the Minister.  So it was made after it was well known that he could never again pass the character test.  Nevertheless, a decision was made in the public interest to allow him to make an application for a SHEV.  And your Honour will see that that is what he did, on or about 9 August.

Now, at paragraph 12, we say that on or about 18 November, Marie‑Nelly made a decision that protection obligations were owed by Australia in respect of the plaintiff, and your Honour would have seen – I took Mr Arnold to a relevant recording of that.  Now, whether it is described as a preliminary or ‑ ‑ ‑ 

HIS HONOUR:   Ms De Ferrari, what do you mean by “a decision”?

MS DE FERRARI: By “a decision”, I mean a decision in the way that section 474 of the Migration Act speaks about. And that is my point, whether the Department, or Mr Arnold, understands as a preliminary or indicative assessment or not, it is actually, as a matter of law, a decision under section 474 of the Act.

Now, as a matter of fact, though I will not take your Honour to it, that is the way in which Ms Pfeiffer, in her affidavit that was tendered at the first instance in the judicial review application that eventually came to this Court by way of application for special leave, talked about it, that is, a decision.  In any event, I pass that on, it is a matter of law about the character to be given it, under the Act.  Your Honour will see that ‑ ‑ ‑ 

HIS HONOUR:   So it is a final and conclusive decision that is made, that protection obligations are owed?

MS DE FERRARI: Well, your Honour, if your Honour looks at paragraph – if I go to section 474 of the Act ‑ ‑ ‑

HIS HONOUR:   Which volume of the legislation am I looking at?  I have got a bundle that you have provided.

MS DE FERRARI:   Yes.

HIS HONOUR: It does not contain section 474, and it is unclear what date the legislation is provided at.

MS DE FERRARI: Yes. Well, the legislation that we have provided was at the date of 18 November 2016, I think the Minister provided different points in time, some of the provisions, but all of the relevant provisions at issue in this proceeding have, in fact, stayed unchanged at all relevant times. So I am actually working from what is compilation 133, which is part of the provisions that we have extracted, but section 474, your Honour, has not changed for many, many years, and it is certainly still in the form that was considered by this Court in Plaintiff S157.

So the decision that I am requiring ‑ that I am defining here, is what is said in subsection (2) of 474, that is:

a decision of an administrative character made, proposed to be made, or required to be made, as the case may be, under this Act or under a regulation –

And then subsection (3) provides that:

A reference in this section to a decision includes a reference to the following –

Which includes:

conduct preparatory to the making of a decision –

In that extended sense, it is a decision which is part of a broader decision, ultimately made, which might be a decision either to grant or refuse, and I will come to the provisions under which that could be made, but that is the sense in which I speak of “a decision” in section 474.

HIS HONOUR:   Thank you.

MS DE FERRARI: Now, if I go back to the first affidavit of Ms Abraham, at paragraph 13, it speaks about the plaintiff’s application for a SHEV being passed to someone else within the Department. Now, this is the referral process, and your Honour has seen the referral, the populated pro forma referral document to VACCU, and I will come shortly to the procedures by which that occurred. And your Honour now knows the date, we did not know it at the time, we were provided with the documents later, but the date at which that happened was 16 February 2017. And then after that, at paragraph 14, there was a decision of the defendant by a delegate to refuse the application, pursuant to section 501(1) of the Act.

Now, that decision is to be found in the third affidavit, I will not take your Honour’s time in terms of giving the reference, but it is actually in the documents that are part of the third affidavit.  Then there was an application for review to the AAT, paragraph 15, and what the AAT did was a decision in the sense of which this Court spoke in Makasa, that is, a decision deciding not to exercise the discretion under section 501(1) to refuse.

So, to that effect, it restored the plaintiff in the position in which he was before the decision of the delegate under section 501, whatever that may have been, and assuming that we are – leaving just to one side, for the moment, the argument that in fact there should have been a decision to grant the visa prior to that point in time.

That is a fact ‑ so assuming that there was not, in fact ‑ there should not have, in fact, have been a grant of a visa, the position would have been that the applicant’s application for a protection visa still remain undetermined, because the AAT had made the decision not to decide, adversely, under section 501, and I will come to section 47 and 45 and their interaction with 501 shortly.

The fact that there was that decision by the AAT then satisfied the condition precedent in section 501A, as set out in subsection (1) of that section, that is, it satisfied the definition of an “original decision” which the Minister personally, by section 501A, was empowered to set aside the AAT decision and then make the other step, the other part of the decision, of refusing the plaintiff’s application for a SHEV. And that is the ultimate decision in this proceeding. So, now, this 501(2) decision, your Honour will see from paragraph 21, a copy of it is at the annexure JSA‑6.

Now, what I now wanted to do, your Honour, is take your Honour to JSA‑13 and JSA‑14, which is two of the documents that I asked Mr Arnold about, and take your Honour to some relevant passages in that document about dealing with this referral process.  Now, JSA‑13 starts at page 182, I am going by the High Court blue numbering at the bottom.

HIS HONOUR:   Yes, thank you.

MS DE FERRARI:   Now, the first page, if your Honour goes to page 185, there is a section that says:

Purpose of this instruction

And your Honour would see, at about point 8, the last bullet point ‑ sorry, the bullet point before “and” says that:

This policy instruction is aimed at providing guidance –

relevantly, to:

understanding when to refer cases to the NCCC for character assessment (that is, assessment against s501) –

Subsection 2 then goes on to say:

What is the “character requirement”

If your Honour goes to the top of the next page, your Honour will see that it is there stated, in this policy document:

All non‑citizens who wish to enter or remain in Australia must satisfy the character requirement of s501 of the Migration Act.

Now, that is wrong in law. Section 501 is not a mandatory hurdle that has to be satisfied by everybody who wants to enter or remain in Australia.

HIS HONOUR: Well, if it had been expressed in terms that all non‑citizens who wish to enter or remain in Australia must not fail to satisfy the character requirement of section 501, that would be more accurate, would it not?

MS DE FERRARI: Still no, your Honour, because ‑ and this is the distinction, in a sense, between section 501(6) and PIC 4001 ‑ still no, because 501 is a – I do not want you to call it a “discretionary power”, but it is a non‑compellable personal – I withdraw that. Section 501 is a power which sits in Part 9 of the Act as something that may be exercised or may not be exercised. There is nothing that mandates the consideration of whether it is to be exercised or not, and that is one of the points that we are going to make about how section 47 and section 65 work together, and in particular, what (iii) of section 65 means, in particular with the reference to “prevented by”.

So, in our respectful submission, that statement, even if it was rephrased as your Honour had said it, would still not be correct.  As a matter of law, it is wrong.

HIS HONOUR: But if 501(1) had been failed in the sense that the Minister had refused to grant a visa to a person because the person did not satisfy the Minister that the person passed the character test, then how would the visa be able to be granted, given section 65(1)(iii), because the grant of the visa would then be prevented by section 501.

MS DE FERRARI: Your Honour, I will come to that. But the two issues are separate. One issue is, yes, we do not contend, to the contrary, that the Minister or a delegate may, by a process, decide to engage into consideration of section 501. But we do say that it is not mandatory that that be done in order to be able to ‑ for the section 65 delegate to be satisfied that the grant of a visa is not prevented by section 501.

HIS HONOUR:   Yes.

MS DE FERRARI:   And we do say that, because that is the construction that his Honour Justice Rares adopted in CPJ16. It is, in fact, a construction that his Honour Justice Lindgren adopted as well, at first instance, save that he added a particular twist to it, but there is no requirement to always go in and consider the exercise of section 501 by the words “prevented by”, but if I can develop those submissions a little bit later when I go to the authorities and the text of the statute, if I may.

HIS HONOUR:   Yes.

MS DE FERRARI:   Now, moving on, if I go to page 186 of that document, under the section that is numbered:

4  What are the departmental roles and responsibilities –

Your Honour will see, it says that:

Only:

·the Minister

·the Assistant minister and

·departmental officers delegated under s501 of the Migration Act

can exercise s501 powers. The NCC –

In other contexts it is referred to as VACCU, they are actually different, but for present purposes it does not matter.  So this body, this division, group, within the Department, it is said:

receives referrals from s65 delegates –

So on that view of the policy, then the person who made the referral in this case was meant to be a section 65 delegate.  And then there is this statement:

It is policy that, even if they hold s 501 delegation, visa processing officers (s65 delegates) are not to make a decision to refuse a visa under s501.

So there is a mandatory policy that prevents someone that is considering section 65 from also considering section 501, even when they have that delegation. It is said to be the case that this is because there is a centralised processing arrangement designed to ensure consistency of outcomes. Then the document goes on, in the last full paragraph:

There are instances where a visa holder might not pass the character test and also be liable to have their visa cancelled under other (general) cancellations grounds.

And then it goes on to deal with that.  The next relevant passage is on page 187, and is the section that starts in bold, large font, “Identification of non‑citizens of character concern”.  Now, non‑citizen of character concern is actually a term defined under the Act, but it is here used loosely to refer to people who might be caught by a failure to satisfy the character test.  And so then it goes on, on the next page it is talking about visa applicants:

Most visa applicant cases requiring character assessment will be identified by visa processing areas –

and so on.  And then there is another statement:

In those cases, visa processing areas –

Which would include the section 65 delegate:

are required to undertake sufficient enquiries –

and so on:

to be able to establish a reasonable suspicion as to whether the visa applicant may, or may not, be of character concern –

And that is explained:

(that is, potentially liable to not pass the character test at 501(6) of the Act) –

As I said, “character concern” is actually an expression defined under the Act but it is here used in a loose sense.  And your Honour will see, at the end of that page:

Only a s501 delegate can make an assessment as to whether a person does not pass the character test.

Now, here is an important statement:

A visa cannot be refused on character grounds by a s65 delegate because of a failure by the applicant to satisfy PIC 4001.

So here we start to see the prohibition on a section 65 delegate on actually considering PIC 4001, which, on the hypothesis that it is valid, is actually mandated criterion for the grant of a visa under Part 790 of the regulation.

Now, the next relevant passage that I wanted to take your Honour to is at page 193 in the blue numbers, and this is section 8, “The decision to refer”, “When is a referral required”.  And again, your Honour will see the same statement that I said before was wrong:

The character provisions of the Act apply to all visa applicants and holders.  It is therefore crucial that any departmental officer who deals with visa applications –

understands the process. Now, true it is that in one sense, the character provisions do not distinguish between visas, and apply to both refusal and conservation, but it is not the fact that it is mandated that section 501 or any other of the Part 9 provisions has to be considered.

HIS HONOUR:   But page 186 did not say that.  At page 186, it said:

All non‑citizens who wish to enter or remain in Australia must satisfy the character requirement of s501 ‑

MS DE FERRARI:   I understand.

HIS HONOUR: But then it went on to say section 501 provides for discretionary powers.

MS DE FERRARI:   I understand, yes.  Well, I still make the point that that statement of the law is incorrect, it is not the fact that everybody has ‑ ‑ ‑ 

HIS HONOUR: Well of course it is incorrect if you read the first sentence without the second sentence. The second sentence is providing, accurately, as I read it, what section 501 provides.

MS DE FERRARI: But your Honour will see that the scheme that is actually enacted is one by which, effectively, everything is prevented from being considered under PIC 4001 and is always sent for consideration under section 501.

HIS HONOUR:   Yes.

MS DE FERRARI:   I will come to that in a moment.  So the relevant officer needs to consider whether a referral to VACCU or to the NCCC need to be made for character assessment.  And again, when is this done?  Again, all the terms here are mandatory:

A referral is required if the visa processing officer holds a reasonable suspicion that the visa applicant or visa holder does not pass the character test under s501(6).

So somehow, even though earlier they told, you cannot consider 501, you, section 65 delegate, cannot consider section 501, even if you hold a 501 delegation, you are mandated to still decide whether you hold a reasonable suspicion that the applicant might not pass the character test under that section. And why? Because in that case, you have to refer it to a section 501 delegate.

HIS HONOUR:   I am not sure that the statements are inconsistent.  The earlier statement is that only a 501 delegate can make an assessment as to whether a person does not pass the character test, but the later statement that you have just read from is not making an assessment as to whether they pass the character test, it is just whether or not there is a reasonable suspicion they do not pass the character test, and once you reach that level of reasonable suspicion, it is not your decision to make, as I understand the ‑ ‑ ‑ 

MS DE FERRARI:   And I am not suggesting to the contrary.

HIS HONOUR:   Yes.

MS DE FERRARI:   What I am suggesting, your Honour, is that when one goes and looks at actually what the Act and the regulations provide, all of these reasonable suspicions or otherwise is just simply nowhere to be found in the duty coupled with the power that is imposed by section 47 and section 65 on a section 65 delegate.  Nowhere.  Not in the Act ‑ ‑ ‑ 

HIS HONOUR:   Well, is your submission that this is anything more than departmental practice?

MS DE FERRARI:   My submission is that this is an unlawful policy.

HIS HONOUR:   Right.

MS DE FERRARI:   A completely unlawful policy, by which the section 65 delegate is prevented from considering PIC 4001, and mandated to cease this charge of the duty, coupled with the power in section 47 and 65, and mandated to send the undetermined application for a visa, which otherwise would be granted, mandated to send it to the 501 delegate.

HIS HONOUR:   Yes.

MS DE FERRARI:   That is our submission.  And your Honour will see, the next paragraph says:

Cases should not be referred . . . if the visa applicant does not satisfy criteria for visa grant.  Irrespective of whether character issues have arisen –

So on the one hand they are saying, if you have got a reasonable suspicion for 501(6), which elsewhere, it is said, is effectively the same as PIC 4001, you send it somewhere else.  On the other hand, you are told you have to consider everything, and not send it to 501 unless you cannot refuse it under something else, and presumably, if there were really a basis for refusing on character, and if PIC 4001 was valid, a section 65 delegate would have to refuse it under PIC 4001.  So PIC 4001 is actually, then, considered further on the next page, under the section “8.3  PIC 4001”, and your Honour will see, in the second full paragraph:

Thus, even if PIC 4001 . . . is not a criterion for the grant of a particular subclass, all visa applicants are still required to be of good character –

Now, there is nothing under the Act or the regulations that mandates that all visa applicants are required to be of good character. The way in which the regulations prescribing criteria for a visa deal with that is by PIC 4001, and if PIC 4001 is not a criterion, then all that there is, it is sitting outside the scheme of 47 and 65, is a possible power to be exercised under section 501. Now, and then it says:

PIC 4001 requires s65 delegates to assess persons against the character test.

And that:

is the legislative means through which the character test is applied –

And then it says, correctly, you can satisfy PIC 4001 if you meet either (a), (b), (c) or (d) of that criterion, but then:

As a matter of administrative practice –

Which we say, again, is an unlawful policy:

processing officers –

Now, that is a reference to a section 65 delegate:

processing officers should initially assess the visa applicant against the terms of PIC 4001(a) and (b) –

that is, only those ones.  You are not supposed to consider (c) and (d).  And if there is no information to the contrary, then you can be satisfied that they have met PIC 4001(a) or (b).  But then one goes to the next page, and at the top of the page, your Honour will see:

If there is information before the processing officer –

And again, we are talking here about a section 65 delegate:

that indicates that the visa applicant may not pass the character test –

Now, on the assumption the PIC 4001 character test has the same meaning in subsection (6), that is either (c) or (d):

the case must be referred to the VACCU –

And then your Honour will see at the end of that ‑ it then all goes to the section 501 delegate selected by VACCU, and your Honour will see at the end of that, the sentence:

If the s501 delegate is satisfied that the applicant passes the character test, or is not satisfied but decides not to refuse the visa under s501, the application will be referred back to the processing officer –

meaning, section 65 delegate:

and the applicant will have satisfied PIC 4001(c) or (d) ‑

So PIC 4001(c) or (d) is never to be considered by the section 65 delegate, it is just simply a mechanism for pivoting from section 65 to section 501, and then if section 501 sends it back, by which mechanism, nothing under the Act, then you have satisfied (c) and (d). Now, your Honour, I notice the time.

HIS HONOUR:   Yes.

MS DE FERRARI: There is effectively the same – I can give to your Honour, after luncheon adjournment, the other relevant aspects of this policy and the other policy. They all say the same thing, their overall effect is what we say is an unlawful policy of mandating that something be referred to the so‑called VACCU, for VACCU then to select a section 501 delegate, and pre‑empting a section 65 delegate which otherwise is under the duty to consider PIC 4001, if valid, preventing that delegate from considering it, and preventing that delegate from granting the visa.

HIS HONOUR:   Yes.  Thank you, Ms De Ferrari.  The Court will adjourn until 2.15 pm.  I can indicate that, if it will assist in your submissions this afternoon, that I have read all of your submissions very carefully, and those of Mr Herzfeld.

MS DE FERRARI:   Yes, thank you, your Honour.

HIS HONOUR:   But your oral submissions so far on the policy and PIC 4001 have certainly made them very clear.

MS DE FERRARI:   Thank you, your Honour.

AT 12.53 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.15 PM:

HIS HONOUR:   Yes, Ms De Ferrari.

MS DE FERRARI:   Thank you, your Honour.  Your Honour, we have agreed on a division of time.  I will go to about 2.55 and Mr Herzfeld until 10 past 4, and leaving five minutes for reply if required.

HIS HONOUR:   Certainly.

MS DE FERRARI:   Thank you.  May I start by - just a couple of points about the evidence.  I am simply making the submission ‑ and your Honour will assess it in due course – but, in our submission, little to no weight should be given to the evidence of Mr Arnold.  He knew very little about the matters that he purported to give evidence about and, in particular, his evidence about what the populated referral form meant by applicant is scheduled to criteria met should not be accepted for three reasons. 

First of all, it is plainly not what the document says and Schedule 2, relevantly, must mean Part 790 in respect of a SHEV.  The second reason is that when your Honour goes to the totality of the references in the two policy documents – and we are going to send your Honour an aide‑mémoire where all the relevant parts are so I do not spend time going through that. 

Your Honour will see that that evidence is contrary to those policy documents which make it clear that if a section 65 delegate can refuse on any mandatory criteria, and all of the criteria in Part 790 are mandatory criteria, then the delegate has to refuse on that criteria and not refer…..so it does not have that meaning.

Finally, we say there is no basis to infer that the plaintiff presents an immediate risk that warranted referral, so the evidence – in the absence of being able to have the section 65 delegate give evidence – she is no longer with us – the best evidence is that document and that document shows that all the criteria for the grant of the visa were met.

I said as well this morning that Ms Pfeiffer for the Minister gave evidence at first instance before her Honour Banks‑Smith that the section 65 delegate, meaning Marie‑Nelly, had made a decision on 18 November 2016 that she was satisfied that there was a real risk of harm if the plaintiff were to be returned to his native country.  That evidence is at paragraph 8 of her affidavit of 10 May 2019, which is annexure JSA‑8 to the first Abraham affidavit - so she speaks about a decision.

Can I go now to the legal issues, and the first one that I wanted to touch very briefly upon is who is delegated to do what.  Now, there is not actually a lot of case law on delegation and the standard decision that is very thorough and always referred to is ‑ your Honour would know – Justice Brennan’s decision in Re Reference under section 11.  This Court gave some consideration to the question of delegation and distinction with agency but no consideration really to the Carltona principle in Northern Land Council v Quall and, in particular, paragraph 83 of the reasons of Justice Nettle and your Honour.

So one goes to the Act and one starts from section 496 of the Act…..extract we have provided and if your Honour has that section your Honour will see that in subsection (1) it provides that:

The Minister may . . . delegate to a person any of the Minister’s powers under this Act.

There is an important couple of subsections, and that is subsection (3) and (4), because in a sense they illustrate by an exception the otherwise general rule, and that is that if an application has a health criteria:

the Minister may:

(a)delegate to a person the power to consider and decide . . . that criterion . . . and

(b)      consider and decide –

the rest of it, or delegate that.  But subsection (4), importantly, says in paragraph (b) that:

for the purposes of subsection 65(1), the Minister is satisfied or not satisfied that the health criterion –

so it is just a very specific way in which the satisfaction can be partitioned by what the delegate – to whom the health criterion was delegated, was satisfied or not satisfied of.

So what it does illustrate is that apart from this very specific exception there is no ability to divvy up the satisfaction of section 65, and for that reason, save for powers that are powers to refuse that sit outside of section 65(1)(b), there is no power to separate aspects of the duty combined with a power in section 65 and the complementary duty in section 47, which I will come to in a second.

HIS HONOUR:   Ms De Ferrari, two questions.  The first one is you have taken us to the Re Reference Case and Northern Land Council v Quall.  What do you say a delegate is here?  Is section 496 using “delegate” in the more strict or accurate sense of a delegate ‑ ‑ ‑

MS DE FERRARI:   Absolutely.

HIS HONOUR:   Yes.  So that is a person who is effectively acting on their own behalf but with the power conferred by the Minister to so act?

MS DE FERRARI:   That is correct.  Those provisions of the Act, the Interpretation Act, come into play, as your Honour well knows, in particular section 34AB and 34A which also apply in terms of the delegate.

HIS HONOUR:   Yes.

MS DE FERRARI:   I do not think I need to take your Honour to those provisions.

HIS HONOUR:   Yes, that is fine for the moment.  When you make the submission that section 496 does not permit dividing up the section 65 criteria, or the aspects of section 65, is that a submission that it is not possible for any delegate to receive any input or any advice as to any of the specific aspects of section 65, or is that a submission that section 65 requires one decision and not two or three or four?

MS DE FERRARI:   It requires one decision but it also does not permit of anything more than administrative help, so to speak, by way of other people that go into input of the ultimate state of satisfaction of the delegate or of the Minister.  That is provided – that kind of level of assistance, in particular, is expressly provided by section 497 and it says that the “Delegate is not required to perform certain administrative tasks”.

So going back to the way that Mr Arnold was speaking about those more junior protection visa processing officers who are not a section 65 delegate, they obviously can do things like recording ICSE that a medical report has been received, recording ICSE that a natural justice letter has been sent as required, for example, by section 57 of the Act.  They can obviously do that and, by and large, your Honour will have seen – from what your Honour has seen which is not very much…..that that is what it is, it is a very…..rather rudimentary, if I may say so, why you are entering events ‑ ‑ ‑

HIS HONOUR:   That does create a difficulty though for section 65 because if it is right that section 65 only permits the Minister or the delegate of the Minister to receive administrative assistance, then if a delegate is making a decision under section 65, the Minister would not be permitted personally to exercise a power under section 501.

MS DE FERRARI: No, your Honour, because – I will come to that, and that is a big issue obviously, and I do not want to skirt that issue, but what we say about that is that the way – the first thing I should say, and I will take your Honour to the authorities in a moment, is that there is absolutely no authority of this Court, but also no authority of any other court really…..Federal Court, that has systematically ‑and because the issue was clearly raised ‑ considered the effect of section 47, section 65 and section 501 or, for that matter, any of the other provisions like section 40 or section 91W that I mentioned there. There is nothing. So, the question is what does “prevented by” mean, and can I start by saying ‑ ‑ ‑

HIS HONOUR:   Sorry, I understand that issue.  I should say, just to save you a bit of time, my question is much more basic than that, than the “prevented by” question.

MS DE FERRARI:   Yes.

HIS HONOUR:   Suppose the Minister personally purports to exercise a power under section 501 but a delegate is empowered, or a delegate has been given a delegation, and is considering all of the factors in section 65. Your submission, as I understand it, is section 65 cannot be divided up. You cannot have the delegate making a decision under section 65 and somebody else making a – even the Minister, making a section 501 decision.

MS DE FERRARI:   No, not at all, your Honour.  What we say is that the primary provision in a sense – the focus is always on section 65 in a lot of the cases when there is unreasonable delay, for example, mandamus to compel section 65.  But, really, the real duty is in section 47.  Section 47 imposes a duty on the Minister “to consider a valid application” and continue to consider until one of the three exit points is reached and it cannot cease until one of the three exit points is reached.

So the way it works, your Honour – and that is consistent as well with section 34AB of the Acts Interpretation Act – is the Minister is delegated but the Minister is also capable of exercising functions that – as well as delegated. The Minister can very well make a section 501 decision and the way it works with the delegate is that when the delegate comes to consider subsection (3), it looks at the fact that a decision has in fact been made by the Minister under section 501 and that says, well, the grant of the visa is prevented. The grant of the visa is in fact decided because the Minister and every delegate has gotten out of section 47 because once there is a refusal you are out of the duty, which is the leading duty, which is section 47.

So, it is factual, it is a factual inquiry, and that is what Justice Rares said. You look at where the decision has in fact been made. That is actually what Justice Lindgren said for two‑thirds of his decision until towards the end of his decision he sort of says, well, if you know that the Minister is in the process of making a section 501 decision it would be incongruous if you did not stop and wait.

HIS HONOUR:   Thank you.

MS DE FERRARI:   But that is what it means.  In a sense, I have anticipated the point.  So, in fact – well, I am already in that point very much and the sections I was going to mention, the well‑known section of 45, to get a visa you must make an application.  Section 46, the application must be valid.  Section 46AA is a section that has not been considered by this Court, as far as I am aware.  It was in the Act at the relevant time and it is a provision specific to the three classes of protection visa that it can be granted onshore.

What we draw from that, your Honour ‑ it does not present an issue in this case, but what we draw from that is that it is a provision that goes…..over and above section 31, which is the other regulation‑making power. To prescribe when an application for one of these visas will be valid in terms of there being requirements prescribed by regulations, and when an application can be determined, when a visa can be granted by reference to criterion in the regulations, really goes to a great extent – and what we say with that is that what Parliament could have done, but they did not do, is say something to the effect – and, by the way, the visa must not be granted if the Minister is in the process of considering or thinks that he might want to consider whether section 501 should be exercised to refuse, but it does not do that.

There is nothing at all in the Act that makes section 501 a criterion in any way, shape or form part of the grant of the visa or of the refusal of the visa. It sits outside of it as another power that sure, can be exercised, and if exercised gets you out of the section 47 duty.

Now, as I said, there is no authority of this Court that has considered the interaction of all of these provisions but I should say there are some statements by this Court – in particular, in Plaintiff M47 v Director‑General – that talk about, for example, I think as Justice Hayne says, something like section 501 intersects with section 65. There is also some statements about PIC 4001, but then in the same paragraph a note that ‑ but the issue does not arise about how PIC 4001 works or whether it is valid, and also a statement about whether PIC 4001 picks up the character test that is defined in section 501(66).

To all of those statements, your Honour, we say, well, we rely on the authorities that are cited at the footnote in paragraph 198 of your Honour’s reasons in MZAPC.  All of the statements were made in the circumstances where the issue did not arise for decision and in some cases there is a very strong basis for thinking that it was not even argued, that their Honours just thought that that is what it meant by reading it but it was not an issue for decision and they said what they said, for example, that 501 character test is picked up in PIC 4001.

The two decisions that have considered the issue are two first instance decisions as we mentioned.  One is the decision of Justice Lindgren in SZLDG v Minister and the other one is the decision of Justice Rares in Minister v CPJ16.  There are other by‑the‑by references to this issue but nothing that has actually really squarely confronted the construction point.

I should briefly mention ‑I will come in a moment to those decisions, but I should briefly mention that we do rely on Plaintiff S297/2013, the very well‑known passages by the plurality at paragraphs 26 to 37 when they talk about section 65 being the correlative duty of section 47.  There is something to that effect that was earlier said by this Court in Chen Shi Hai v Minister (2000) 201 CLR 293 at paragraph 41. That was Chief Justice Gleeson and Justices Gaudron, Gummow and Hayne.

I wanted to briefly mention a decision of the Full Federal Court, which is AIB16 v Minister (2017) 254 FCR 457 for this simple point. That was a case where in fact the same delegate ‑ which is the sort of issue that your Honour posed to me – the same delegate considered section 65 and section 91W and, in fact, a decision of that delegate was structured to say, “I refuse the visa under section 91W”, because when section 91W is engaged it is a mandatory refusal, and then he went on to say, “I also refuse the visa under section 65”.

The argument that I made for the appellant there – and the Full Court found that it did not need to decide – was that in fact if you make a decision under 91W there is no longer any power to make a refusal, or for the matter…..under section 65. That is because you are out of section 47, in the same way that you will be out of section 47 if you make a refusal under section 501(1).

Now, the only other thing I wanted to say at this point before I go to the decision of Justices Lindgren and Rares respectively is a brief reference to this Court’s decision in Shahi v Minister (2001) 246 CLR 163 at paragraph 28. That involved an offshore visa and the Act at the time still included section 65A that put a time limit for the termination of a protection visa, but 65A did not apply in respect of offshore visas, even where they were refugee visas.

The Court in that case made it pellucidly clear that the duty in section 65, even when there is no section 65A, must be exercised promptly.  That is important because the Minister makes submissions about, well, you know, of course there is nothing wrong with the delegate waiting for months until someone else decides whether or not to refuse under section 61, and we say there is very much that is wrong with that kind of proposition when one looks at the duty combined with the power in section 65 and the correlative duty in section 47.

So, in terms of Minister v CPJ, it is a case where the issue arose because the relief that was sought was mandamus, which was like SZLDG but unlike the Full Federal Court decision in KDSP.  The relevant paragraphs, your Honour, are 78, 80 to 81 and 82 of the reasons of Justice Rares.  In particular at paragraph 82 Justice Rares says:

the grant of the protection visa is not prevented . . . unless and until –

there is an actual exercise of the power to refuse. In that case it was section 501A(2) but it is the same for section 501(1). He says it again more strongly at paragraph 86:

consideration of the possible exercise of . . . 501A(2) does not, of itself, operate to prevent the grant of the visa.

That is reflected in the relief that his Honour ordered at 88.  Not only did his Honour order mandamus with a very short time but he also granted a declaration that the situation which was then occurring – so mandamus was live, unlike in KDSP where mandamus was no longer live – mandamus was live and an order in the nature of mandamus was given, but he also made a declaration that the then existing situation of the Minister sitting on the hands concerning a possible exercise of 501A did not mean – did not mean that the grant of the visa under section 65 was prevented.

HIS HONOUR:   So, Ms De Ferrari, I understand your submission about this, which is that section 65 remains enlivened insofar as there has been no actual decision under section 501. Where does that go in this case? Assuming the correctness for the moment of your submission and that that also means that the policies that you have taken me to are incorrect, where does that take us here?

MS DE FERRARI:   Well, we say on all the evidence, which is what I put to Mr Arnold, the proper conclusion that your Honour should draw is that there was nothing left that was unsatisfied in terms of the criteria required for the grant of the visa and that is reflected, in particular, in what we say is the best evidence and that is a referral document. 

So, the only thing that stood in the way – the only reason why the delegate did actually not do the step under section 67 of recording the decision is because she felt bound to comply with the policy of saying “I’ve got to send this somewhere else.  There is absolutely nothing in the criteria that is left undetermined, but I have got this policy” ‑ which your Honour knows we say it is unlawful – “and that says I must send it elsewhere”.  The point, your Honour, is simply this.  In terms of relief, for example ‑ ‑ ‑

HIS HONOUR:   I understand the submission, but where does that go here?  There still has not been a decision to grant a visa, has there?

MS DE FERRARI:   No, your Honour, but that goes to relief, and the question is this.  Imagine that ‑ your Honour would have seen that the referral happened on 16 February 2017 and we say the decision happened before the end of November, but say that on 1 January 2017 my client knew that that was the situation that was occurring, my client could have obtained from this Court, we say, on the basis of the…..mandamus case in S297, could have obtained from this Court an order to the effect that the Minister was compelled to grant a visa because there was nothing left to do, there was nothing left to do, and on 1 January ‑ ‑ ‑

HIS HONOUR:   Ms De Ferrari, your client could not have done that if a 501A decision had been made in the meantime.

MS DE FERRARI: But, your Honour, back in January 2017 there could not have been a section 501A because the preconditions of section 501A is that there is first a section 501 decision ‑ ‑ ‑

HIS HONOUR:   Yes.

MS DE FERRARI: ‑ ‑ ‑ which is then overturned by an AAT decision. So, back on 1 January 2017 the situation was that the section 65 delegate was satisfied of everything but she held her hand because of the policy and gave time to someone else to come in and do a section 501(1) decision some time later. So, on 1 January 2017 we could have come to this Court and got an order to the same effect as…..mandamus that says this is not even a question of the Minister considering according to law. There is nothing left to consider. As Justice Rares said, the fact that someone else might be thinking about exercising 501 does not matter, it does not matter ‑ ‑ ‑

HIS HONOUR:   All right.  Well, suppose all of that is correct and your client could have but did not come to the Court and obtain an order for mandamus, where does that then take you?

MS DE FERRARI: Well, that takes us to the fact that the only way in which the 501 delegate proceeded in terms of having jurisdiction is the premise that will falsified once the court recognises that in fact there was nothing to refer. The only thing that was left to do was compliance with the duty in section 65. So the only way in which the section 501 delegate later on thought that it still had jurisdiction because there was still a live application for a visa that had not been determined, that will be falsified.

It is the same type of reasoning, your Honour, that leads to the conclusion, for example, in Hossain and also Bhardwaj.  It is that kind of invalidity of something that purportedly happened but did not actually happen in terms of exercise of jurisdiction, which is undone once the court recognises that the subsequent act was actually done without jurisdiction.

HIS HONOUR:   Ms De Ferrari, sorry to interrupt, I am just trying to summarise your submission. It is effectively that, as I understand it, given that an order in the circumstances you describe for mandamus could have been obtained, that meant that the premise underlying any exercise of power under section 501 was invalidated, which meant any decision made under section 501 was invalid. Where does that then take us?

MS DE FERRARI: Well, that then takes us to the fact that because there was no section 501(1) – and I should say at this point my client knew none of this, and the Minister did know and did not say a word about any of this – but not knowing any of this my client went to the AAT and because there was what appeared to be a decision in fact under section 501 the AAT made a contrary decision under 501, and that contrary decision in fact is jurisdictionally irrelevant and should not have been made, but seemingly a piece of paper, that piece of paper in fact was the basis upon which the Minister was then satisfied that he had jurisdiction under section 501A because existence in fact even though only purportedly because really it is a fiction but ‑ ‑ ‑

HIS HONOUR:   So, Ms De Ferrari, does the reasoning go like this, that because the section 501 delegate had proceeded on a false premise the decision under section 501 was invalid. Because of the invalidity of the decision under section 501 the AAT decision itself, setting aside that decision was invalid. And because the AAT decision was invalid there was no jurisdiction to make the decision under 501A. Is that the right sequence?

MS DE FERRARI:   That is correct, and one can look at it the converse way.  Assume that we are right, that on 1 January 2017 my client could have obtained an order in the nature of peremptory mandamus.  The effect of all this undisclosed doing by the Minister would otherwise be that the Minister has wrongfully protected himself from any jurisdiction in terms of the failure to actually comply with the mandatory duty under sections 47 and 65.  That cannot be right, it just cannot be right.

HIS HONOUR:   Ms De Ferrari, that whole sequence of reasoning – assuming that every step in that sequence is correct – when one then gets to section 501A, in order for the argument to succeed one still has to read the word “decision” in section 501A as meaning a legally valid decision, not a decision in fact.

MS DE FERRARI:   Yes.

HIS HONOUR:   In other words, a mere decision in fact – I think what you call a piece of paper – a mere decision in fact is not sufficient.

MS DE FERRARI:   Yes, and, your Honour, there is plenty of authority in this Court for that proposition, starting from Plaintiff S157, Bhardwaj, Hossain.

HIS HONOUR:   They all say that about section 501A, do they?

MS DE FERRARI:   They all say that about a decision made without any jurisdiction to make that decision.  This is not ‑ ‑ ‑

HIS HONOUR:   But does it not depend upon the particular statutory provision, that some statutory provisions of course the word “decision” means a legally valid decision – some other statutory provisions, the word “decision” will mean a decision in fact made?

MS DE FERRARI: Well, yes, your Honour, but in terms of section 501, that has to be a decision validly made. It cannot possibly be the case that a piece of paper which is invalidated by jurisdictional error – assuming that we are right about that – a piece of paper that is invalidated by jurisdictional error which results in a person to whom Australia owes protection obligation be kept in detention, potentially for an indefinite amount of time, it cannot be right that that just means the piece of paper. It has to be a valid decision. The same for section 501A, your Honour.

HIS HONOUR:   Yes.

MS DE FERRARI:   Now, can I just say this as well.  Our construction of prevented – I know I have jumped to relief.  I should make it clear because I do not think that the Minister deals with that.  Our argument is – that is one argument, but there is another strain of the argument as well, that the invalidity of 501 and everything that follows is also by reference of the fact that the reason it went there was only because of the application of an unlawful policy.

So, that is a separate strain, that the unlawful policy of itself is something that goes…..not only the fact that had we come here on 1 January 2017 and would have got an order compelling the grant of the visa, but also that in fact seemed to have jurisdiction because of the unlawful policy and, in that respect, we are squarely in the kind of analysis of this Court’s decision in – if I go to relief – in Plaintiff S297/2013 – no, that is not it – in Plaintiff M76/2013 which, as I said earlier this morning, is how we framed the prayer for relief (1A) and (2A) and that is the anterior error, the unlawful policy, infected what happened next, and we are at least entitled to declaratory relief to that effect.  So that is how we put it there.  So they are separate arguments, they are joined but they are separate arguments.  Your Honour, in terms of ‑ ‑ ‑

HIS HONOUR:   Ms De Ferrari, you say they are separate arguments, and that you might be entitled to declaratory relief to that effect, but if you are not successful on the ultimate section 501A argument, there is no utility from your client’s point of view in any particular declarations because there would have been a section 501A decision, assuming that any step of the argument were found not to have been satisfied. Then what good would a declaration do?

MS DE FERRARI:   Well, your Honour, because a declaration would say that the 501 decision was vitiated by the earlier error in exactly the same way that the 501A decision was vitiated by the unlawful policy which in turn resulted in a 501 decision.  So, there would still be utility because the Minister would know that the refusal under 501 and the refusal under 501A were all the result of the application on unlawful policy and the Minister may well – possibly unlikely, but may well consider in those circumstances even though those decisions have not been quashed, and so they have not been found to be legally firm to the point of having been quashed, may well consider that he would exercise the power under section 195A to remedy the situation.

HIS HONOUR:   I see.

MS DE FERRARI: So there is still utility in that. Your Honour, I do not know that I want to say anything more about PIC 4001 – there is one point I wanted to say, and that is our construction of “prevented”, what it means, prevented by section 501, we say is also consistent with the principle from Cooper Brookes at 321 as expressed by Justices Mason and Wilson, and that is if there are two strongly competing interpretations, which we say they are not properly understood, but the advantage lies with ours which is a fairer and more convenient operation of what prevented means.

Now, your Honour, in terms of impossibly vague basis for section 4001, we have said in our submissions in paragraph 71ZD to 71ZF why is that, and it also goes back to the written submissions as to – I withdraw that.  I did note this morning as well a point that is of some importance, that section 5 of the Act has a definition of “character concern”, and it also has a definition in section 5C of when “a non‑citizen is of character concern”.

Now, that is something quite different from not passing the character test, but our point is if Parliament really wanted to have a definition of character test that was able to be picked up by the Legislation Act and made applicable in the regulations, it could have done that in section 5, the same way as it did – as made a definition of character concern and what non‑citizens fail to satisfy it in section 5C.

In terms of why it is inconsistent with the Act and ultra vires, can I just give your Honour – say apart from what we put in the written submission, we rely on the test for inconsistency between a criterion prescribed by regulation and provisions of the Act, which basically goes back to this Court’s decision in Morton v Union Steamship Company of New Zealand, but it was applied by both Chief Justice French and by Justice Hayne in Plaintiff M47/2012, and your Honour will see that at Chief Justice French at paragraph 54, and Justice Hayne at paragraphs 163, 164 and 172. 

We say when one applies that to PIC 4001, bearing in mind also the matters that we referred to in our written submission, one comes to the conclusion that there is the same inconsistency – not for the same reasons but applying the same underlying principle, the same inconsistency as was found by this Court in respect of PIC 4002 in that decision, which is M47 v Director‑General.

I think I have already said what I wanted to say in terms of relief, largely.  In terms of Hossain, we rely on paragraph 24 of the reason of Chief Justice Kiefel and Justices Gageler and Keane, and paragraph 62 and, more importantly, paragraph 64 of your Honour’s reasons.  At paragraph 64 your Honour cites Probuild, and his Honour Justice Nettle agreeing with your Honour in Hossain and Bhardwaj as well - I will just give your Honour the references to the relevant paragraphs of that decision, which are paragraphs 45 to 58 of the reason of Justices Gaudron and Gummow.

Unless there is anything else, your Honour, those are the plaintiff’s submissions.

HIS HONOUR:   Thank you very much, Ms De Ferrari.  Mr Herzfeld.

MR HERZFELD:   I will try that again off mute.  We obviously rely on everything in our written submissions, including as to the required extension of time and do not seek to repeat everything in them.  Can we start with what we submit is the short answer to this application, and that is what we have set out in paragraphs 11 to 30 of our written submissions. 

In short terms it is this, that the plaintiff’s central submission is that on 18 November 2016 a delegate of the Minister was satisfied that all criteria for the grant of his visa was satisfied and that the delegate was thereupon under a duty to grant the visa but failed to do so, and there is sought from this Court a mandatory injunction to compel the grant of a visa with an effective start date of 18 November 2016.

Now, the difficulty with that relief is that, unless the Minister’s decision under section 501A is set aside because it is invalid, an injunction in that form would be inconsistent with the fact that the visa has been validly refused. Then, save for one exception, all of the remaining relief sought by the plaintiff is either declaratory relief reflecting legal conclusions along the way, or certiorari to set aside the original section 501 decision which is unnecessary because that itself was set aside by the Tribunal decision which was then in turn set aside by the Minister’s decision. So, unless the section 501A decision is set aside, none of the relief sought has any utility, and I include in that the new prayers for relief sought to be put forward by amendment.

HIS HONOUR:   What about Ms de Ferrari’s submission about the section 195A discretion?

MR HERZFELD: It is entirely speculative. There is no basis to think that there is any utility to a declaration of that kind. The exception to what I have just said is the claim made presently in paragraph 8A that the plaintiff’s detention has been unlawful since 18 November 2016, which I will address separately. But we do say that, unless ground 5 which attacks the section 501A(2) decision is successful, the application must be very substantially refused.

Now, that ground asserts that the 501A(2) decision was beyond power through the rather tortured series of steps that your Honour flushed out with Ms de Ferrari.  We obviously challenge some of the premises for that, but let it be assumed that the premises are right, let it be assumed that by an earlier time a delegate of the Minister was satisfied all of the criteria, and let it be assumed that the delegate then came under a duty to grant the visa, and let it be assumed that the delegate failed to do so; make all of those assumptions favourable to the plaintiff. 

Nonetheless, in our submission, the 501A decision is valid. That is for these reasons. As your Honour knows, the discretions in sections 501 and 501A are available regardless of whether the visa criteria are met. That is the very purpose of section 501 and section 501A. It is to permit refusal of a visa, even if all criteria are met. Next, while section 65 may require the grant of a visa in certain circumstances, it does not deem the visa to have been granted in those circumstances. If a delegate is under a duty to grant a visa, that duty is enforceable by mandamus, but there is no deemed visa prior to performance of the duty.

So, in the circumstance that we are hypothesising where the delegate was under a duty but had not performed it, that duty would have been compellable by mandamus but nonetheless in fact there was an undetermined visa application, and while there is an undetermined visa application, section 47(2) of the Act continues to impose a duty on the Minister to consider it and on its terms the power in section 501(1) to refuse the visa remains available.

So, whether or not a delegate of the Minister ought to have granted the plaintiff a visa at an earlier time, because that had not in fact occurred, there remained power to refuse the visa under section 501(1). If that is the case, it follows a fortiori that there was power to refuse under section 501A.

There is a further point. Let it be assumed, again favourably to the plaintiff, that the section 501 decision was invalid. It does not follow that the Tribunal decision favourable to the plaintiff was also invalid. In fact, to the contrary, the authorities starting from Brian Lawlor emphasise that the Tribunal’s power to review decisions extends to decisions in fact, not merely valid decisions. So, even if the section 501 decision was invalid, the Tribunal’s decision would have been valid and then, again a fortiori, the section 501A decision would have been valid.

Assume even more favourably to the plaintiff that the Tribunal decision was invalid.  It does not follow that the 501A decision was invalid because again 501A must permit the Minister to overturn a Tribunal decision even if the Tribunal decision is invalid, otherwise you would have the situation where, even though the Minister’s exercise of power was perfectly regular, the Minister’s decision could be set aside because the plaintiff attacks the validity of a Tribunal decision which was favourable to the plaintiff and which the Minister was trying to overturn. 

So it is entirely unclear on the plain text of the Act how the plaintiff says that the power, one, under section 501(1) evaporates before the grant of the visa, but even if that were so ‑ ‑ ‑

HIS HONOUR:   I think it was reasonably clear.  It is just that the plaintiff says that the Brian Lawlor‑type argument does not work at stages 1, 2 or 3.

MR HERZFELD: It is a bit more than that. We do not understand how it can be said that simply because a visa ought to have been granted earlier, that means that on reading section 501 all of a sudden there is no power to refuse under 501. That proposition just does not emerge from the text of the Act. Section 501 permits refusal of a visa application that has not been determined. In fact, the proposition that it ought to have been determined earlier just does not intercept with the text of 501 at all.

The submission that seems to be made in the plaintiff’s reply submissions at paragraphs 12 to 14 is that the Court could by analogy with its power to make orders nunc pro tunc set aside the section 501A decision as a consequence of a finding that the plaintiff ought to have been granted a visa at an earlier time but, with respect, that is to reason backwards. If the Act does not deny validity to the section 501A decision simply because a visa ought to have been granted earlier, there would simply be no basis to set aside the 501A decision.

Contrary to the proposition advanced by the plaintiff, the making of the section 501A decision here does not proceed on the basis of any fiction. It proceeds on the basis of the fact that a visa had not been granted at an earlier time, and that remains the fact even if the visa ought to have been granted at an earlier time. Nor is there any freestanding basis for this Court to set aside the section 501A decision simply because it was the consequence of wrongdoing, to use the plaintiff’s word, comprised in not granting the visa when it ought to have been granted.

Unless on a proper construction of the Act section 501A renders the decisions under it invalid because visas should have been granted earlier, the Court simply cannot set aside that decision in some sort of freewheeling exercise in restorative justice. We also say, as your Honour knows, that any challenge in this proceeding to the decision under 501A is precluded by an Anshun estoppel.  I do not propose to develop that submission orally. We have set it out in writing.

HIS HONOUR:   Could I just ask you one question about that?  In light of the evidence that the plaintiff has put on, on what basis would it be unreasonable for the plaintiff not to have raised these issues at first instance in the Federal Court?

MR HERZFELD: Yes, without taking your Honour to it, I will just give your Honour the relevant references. In Ms Pfeiffer’s affidavit, which was dated 10 May 2019, at paragraph 8 there is a reference to the delegate being satisfied that “there was a real risk of significant harm”, and at paragraph 9 Ms Pfeiffer explained that the application was then “referred for character consideration under s 501”. At that point the plaintiff could have taken steps to obtain production of documents concerning that process and could have sought to cross‑examine Ms Pfeiffer about that process.

Further, it is apparent from Ms Abraham’s first affidavit that the policy documents on which the plaintiff now relies could have been accessed at any time.  That is apparent from paragraph 33 and following of Ms Abraham’s affidavit.  So the challenge which the plaintiff now seeks to bring could have been made on the basis of Ms Pfeiffer’s affidavit and production of documents, including available policy documents in those Federal Court proceedings, and it is not an answer to that for the plaintiff to say that his lawyers only became aware of the referral process from a Tribunal decision which was handed down on 11 March 2020.

Anshun estoppel does not turn solely on the basis of what people knew at the time.  It turns on the basis of what ought to have been known acting reasonably and what ought to have been done acting reasonably and, having regard to the matters that I have taken your Honour to orally which are developed more in our written submissions, we do say that all of the 501A challenge and the policy documents and so on could and should have been brought forward in that Federal Court proceeding.

If what I have said so far is right it follows that, quite apart from any factual and other legal complexities, the Court should reject the plaintiff’s challenge to the 501A(2) decision, reject the claim for an injunction and then all of the declaratory relief is entirely inutile, save for the contention that the plaintiff’s detention was unlawful since 18 November 2016, but that is not a contention which was substantially developed in writing or orally and so in answer to it we would simply rely on our written submissions at paragraphs 25 to 29.  But the result of all of that is that, quite apart from any of the more complex issues underlying grounds 1 to 4, ground 5 should be rejected and then all of the relief falls with it. 

I should have said, your Honour, when I was addressing your Honour about the Anshun point, obviously your Honour will see that quite a number of the points that I have just made also track into some of the points we made in opposition to the amendments relating to 501A.

HIS HONOUR:   When you say “quite a number”, is that all of them or are there aspects of the amendment that you accept could not have been raised reasonably at the time?

MR HERZFELD:   No, there is no aspect of the new challenge to 501A which we accept could not have been raised in the Federal Court proceeding and your Honour will I think now understand that the argument that I have just made about the application being dismissed because the 501A decision remains on foot, that argument will not work if the plaintiff is given leave to raise ground 6 which raises a new challenge to the 501A decision which the plaintiff then wants remitted.  That stymies the conclusion for which we contend that the 501A decision is valid and therefore ‑ ‑ ‑

HIS HONOUR:   It only stymies it in the sense that it is an alternative ground for the core of the relief that the plaintiff seeks.

MR HERZFELD:   But it has the consequence that your Honour then cannot dispose of the application in the way I have just explained because your Honour could not proceed on the basis that the 501A decision was valid because your Honour would have permitted a challenge to it and then been asked not to determine that challenge.

HIS HONOUR:   That is one of the benefits of alternative submissions.

MR HERZFELD:   Yes, but it might be why alternative submissions need to be made in a timely fashion, not at 2.04 pm the day before a hearing in front of a High Court judge.  Can I then turn to ground 1.  Ground 1 involves two submissions.  The first is to seek from your Honour a factual finding that on 18 November 2016 a delegate of the Minister was satisfied that all the criteria for the grant of the plaintiff’s visa were met.  Secondly, it involves a legal proposition that in light of that factual finding the delegate was thereupon under a duty to grant the visa but failed to grant it. 

We contest both the factual finding and the legal proposition, but can I address the legal proposition first because it will help to situate the policy documents and diffuse the attack on that policy which is then made in ground 2.  So the legal proposition underlying ground 1 is that if the first delegate was satisfied of all the criteria as at 18 November 2016, she came there immediately under a duty to grant the visa, but failed to do so.  That legal proposition, in our submission, is wrong.  Could your Honour take up section 65 of the Act, please?

HIS HONOUR:   Is this in your bundle, Mr Herzfeld?

MR HERZFELD:   I think it is probably in a number of places.  I am not sure what your Honour is working from.  It was attached to the applicant’s ‑ ‑ ‑

HIS HONOUR:   I have the bundle but in the two bundles that I have – I have section 65 which I do not think has been amended, but I have two different versions of dates for the relevant legislation.

MR HERZFELD:   I do not think section 65 has been amended, so I do not think it is going to matter.

HIS HONOUR:   All right.

MR HERZFELD: Your Honour would notice in section 65 the presence of (iii) within (1)(a) and in particular the reference there to the grant of a visa not being prevented by section, relevantly, 501 or any other provision of the Act which would pick up 501A. Your Honour knows that section 501 is a discretionary power to refuse a visa and it is able to be relied upon in relation to the applicant’s visa class and, as I have already said, it is able to be relied upon even where all other visa criteria are met.

There is a question of construction in relation to (iii). On one view, the grant of the visa is prevented by section 501 only if a decision has actually been made under section 501 to refuse the visa. Now, that, if it is right, does not really give (iii) any independent work to do because once the visa is refused under 501 there is no occasion to consider whether the criteria in (iii) is met, or the criterion is met, because the visa would have already been refused. That is one view.

HIS HONOUR:   Well, it would certainly give it work to do because the Minister in exercising section 65 needs to consider at the very least whether or not there had been an exercise of power under section 501 because, even if you say that subsection (3) is only concerned with actual exercises, it is necessary for the Minister before making a decision to consider whether there has been an actual exercise.

MR HERZFELD: That is true, and certainly if there are two different delegates involved one can see how that might readily be so. So perhaps what I said earlier was not quite right. In any event, the other view ‑ the construction potentially is that the words “prevented by” need to be understood more broadly to encompass the circumstance where consideration is being given to refusal under section 501. But, in our submission, it is not necessary to resolve that question on this application. Let it be assumed, again favourably to the ‑ ‑ ‑

HIS HONOUR:   What would “prevented by” mean then?  It would not mean prevented by, it would mean something else.

MR HERZFELD: Yes, it would not be a literal construction, I accept that, but in any event it is not necessary to resolve that. I am going to make the assumption favourable to the plaintiff that for the purposes of (iii) the grant of a visa prevented by section 501 only if a decision has actually been made under section 501 to refuse the visa; make that assumption. It does not follow that a delegate who has considered all visa criteria is thereupon under an immediate duty to grant the visa irrespective of what might be done under section 501. Let me explain that. The provisions of the Act do not say how long the Minister or a delegate has to determine a visa application. Accordingly, the implication is that any visa application must be determined within a reasonable time. Could your Honour take up, please, the first Plaintiff S297 255 CLR 179.

HIS HONOUR:   Yes.

MR HERZFELD:   If your Honour turns to paragraph 37 of that decision, that explains the implied obligation to determine an application within a reasonable time.

HIS HONOUR:   Yes.

MR HERZFELD:   Then the Court explained that what amounts to a reasonable time is ultimately for determination by a court, having regard to the circumstances of the particular case within the context of the decision‑making framework established by the Act.

HIS HONOUR:   Your submission is just basically that a reasonable time for the exercise of the power under section 65(1) must include a reasonable time for the Minister to be able to consider any exercise of power under section 501.

MR HERZFELD:   Yes.

HIS HONOUR:   Otherwise section 501 could be stultified.

MR HERZFELD: Yes. Because of that it follows that, even if all visa criteria are met, that does not answer the question of has a reasonable time expired? You can take an extreme case. It might be obvious within four hours that all of the visa criteria are met but equally there might be a real prospect that the visa might be refused under section 501. It does not follow that a reasonable time expires after four hours just because all of the criteria can be seen to be satisfied after four hours because of the statutory scheme, including the express reference to section 501 in section 65, having regard, as the Court said in S297, to the decision‑making framework established by the Act. What is a reasonable time includes time to consider and determine whether to refuse under section 501.

Now, that does not mean that period can extend forever. The time to determine the visa application must not exceed that which is reasonable. So, in practice, there will be a limit to how long can be taken to consider an exercise of power under section 501. But the significant point for present purposes is that the mere fact that all visa criteria are satisfied at a particular point does not mean that a reasonable time for considering the visa has expired and therefore does not mean that there is there and then a duty to grant the visa.

Now, that analysis is entirely in accord with the reasons of Justice Lindgren in SZLDG subject to the fact that at that time there was a time limit imposed by the Act for the determination of protection visa decisions.  There was a 90‑day time limit.  So his Honour’s reasons are even more clearly applicable now when there is not a fixed time limit.

In this case, the plaintiff’s visa application was made on 9 August 2016. So, even if by 18 November 2016 a delegate was satisfied that all visa criteria were met, given the plaintiff’s offending it would not have been unreasonable for consideration then to be given to the exercise of power under section 501(1). It must have been open to the first delegate to refer the case to the VACCU for appropriately delegated decision‑makers to determine whether to exercise the section 501(1) power.

It is not alleged, and could not be alleged, that between 9 August 2016 and 18 November 2016 a reasonable time expired and therefore the first delegate was under a duty to grant the visa.  What is alleged is that, because she was satisfied of all criteria, it follows inexorably that she was thereupon under a duty to grant the visa, and that is legally wrong, given the decision‑making framework under the Act.

That is, one, to undermine the legal proposition upon which ground 1 depends but, two, it is also an answer to the submission made in ground 2 that the policy is unlawful because it permits deferral of a visa grant even after all criteria are satisfied in order to allow consideration under section 501. But there is nothing unlawful about such a process. In fact, it coheres with the scheme of the Act.

HIS HONOUR:   Well, subject to one point.  One submission that was made by Ms De Ferrari is that section 65 contemplates one decision, not two or three. 

MR HERZFELD: We accept that, and I will explain why in a moment. But at the moment I am just addressing the question of whether, even assuming all criteria were satisfied, there is something problematic about not granting the visa at that point, but instead considering the exercise of section 501, and there is nothing per se problematic about that given the scheme of the Act. I understand the question about one decision‑maker, and I will come back to that.

In terms of sections 65 and 501, there is nothing to stop the Minister from considering all visa criteria first and then considering section 501. Conversely, there is nothing to stop the Minister considering no visa criteria and jumping straight to section 501. There is equally nothing stopping the Minister from considering some but not all criteria, then going to section 501, and then if 501 is not engaged coming back to make an actual decision on the grant of a visa and any outstanding criteria. That being so, there is nothing inconsistent with the scheme of the Act having a policy structure which directs delegates to consider some but not all criteria and then section 501.

In all cases, the remedy is mandamus to compel the determination of a visa application if the consideration has extended beyond a reasonable time. That is a remedy particular to the individual visa. But there is nothing inconsistent with the Act to have a policy structure which proceeds on the basis that you can consider criteria and then consider section 501. That coheres entirely with the scheme of the Act.

Can I then come to the factual proposition underlying ground 1 and in the course of doing so address your Honour’s question about a single decision‑maker.  Now, your Honour, at the time of the valid application – 9 August 2016 – the criteria for the grant of the visa are relevantly summarised in paragraph 34 of our written submissions and, as your Honour knows, one of those is PIC 4001 which we have set out in the written submissions and which your Honour has now seen.

The way in which at the relevant time the Department processed visa applications was set out in a number of policy documents.  Your Honour was taken to versions of those documents by Ms De Ferrari.  They were not the versions current as at 16 February 2017.  I mention that date because that is the date when the application was referred for character consideration.  But they were substantively similar.  We have summarised them in our written submissions at paragraphs 38 and following and we have given your Honour references there to the policies as they stood at that time.  I am afraid those references are by reference to application book pages rather than the pages that your Honour is working from.  We can, if your Honour wishes it, subsequently give your Honour different references.

HIS HONOUR:   I think I can track them down myself, Mr Herzfeld.

MR HERZFELD: All right. If there is a difficulty we can, of course, alter the references, it is just we were working from the application books. But can we without going to the provisions re‑emphasise these points. First, cases where a visa applicant potentially did not pass the character test were to be referred by visa processing officers to the Character Consideration Unit to undertake character checks and submit the case to an officer who held the delegation under section 501. For that to happen, the visa processing areas were required to undertake sufficient inquiries to be able to establish a reasonable suspicion as to whether the character test might be engaged. Your Honour can see the good administrative sense in that which is that if there are potential character concerns the matter gets referred to a specialised team who have expertise and processes in that area, and that is different to the expertise and processes that will be relevant to assessing protection obligations, for instance.

HIS HONOUR:   But the policy goes a bit further than that. The policy prevents a section 65 delegate who has the power to make a decision under section 501 from exercising that power or from considering whether that power would be exercised and then considering therefore whether a reasonable time has expired under section 65(1)(a)(iii).

MR HERZFELD:   That is so, but of course a decision under section 65 and a decision under 501 is a different thing, so that certainly does not have to be done by the same delegate.  So there is nothing per se problematic with ‑ ‑ ‑

HIS HONOUR:   Well, it does not have to be done by the same delegate, but the policies that Ms De Ferrari took the Court to this morning prevent a process of reasoning, it appears to me, that goes something like this. The section 65 delegate looks at the considerations, takes them all into account, as you said is entirely proper to do, reaches the conclusion that all of the criteria have been met, then needs to consider whether or not the grant of a visa is prevented by section 501. If you have a section 65 delegate who also has a delegation under section 501, the 65 delegate might have the power to say, well, I do not think this ever will be prevented because I do not think the section 501 power should be exercised, therefore I will grant the visa. Now, the policy seems to prevent that.

MR HERZFELD: This particular section 65 delegate did not have a delegation under section 501, so that particular issue does not arise in this case. But secondly, in any event, there is nothing problematic about that provided that the overriding consideration is that the visa must be determined within a reasonable time and, if it is not, that is compellable by the Court. There is nothing in the Act which precludes as a matter of administrative practice the separation of people into those whose function it is to consider section 65 and those whose function it is to consider section 501. Even if they could consider something else, there is nothing under the Act which precludes as a matter of administrative structuring that division of responsibility. The only issue, as I say, is whether the visa is determined within a reasonable time and that is compellable by the Court. Here it is not alleged ‑ ‑ ‑

HIS HONOUR:   Do you accept that the section 65 delegate has to also consider the PIC 4001 criteria and that those criteria cannot be considered by somebody else?

MR HERZFELD:   Yes.  It does not tell you when they have to be considered, but in terms of the determination of the grant of the visa, that has to be done by the section 65 delegate. 

HIS HONOUR:   You say there is nothing in the policy which prevents the section 65 delegate taking all criteria into account other than perhaps the section 501 special power?

MR HERZFELD:   And the way in practice that that is done with respect to PIC 4001 is that the visa processing areas consider paragraphs (a) and (b).  In practice, if there is no information suggesting that the applicant fails the character test, the applicant then satisfies PIC 4001 on the basis of (a) and(b).  If the applicant potentially did not pass the character test, they get referred to the Character Consideration Unit.  And if after such a referral they are refused under 501, that is the end of the application; no occasion to consider 4001 further because the application has been refused. 

If the application is not refused under 501, then it goes back to the processing area and what the policy says is that by reason of the 501 delegate’s determination the applicant will satisfy either paragraph (c) or (d) of PIC 4001.  That is still a matter to be notionally determined by the section 65 delegate, but it is inevitable that it will be determined favourably to the applicant because of what has been done under the 501 process, and that is all the policy is saying.  Can I then come to the third feature of the policy, which is that in order for a decision‑maker, whether it is the Minister ‑ ‑ ‑

HIS HONOUR:   Mr Herzfeld, it may not be a matter which goes anywhere, but my recollection of the wording of the policy was a direction to the section 65 delegate not to consider (c) and (d).  In other words, it is not a matter where the section 65 delegate would consider (c) and (d) in PIC 4001 and basically inevitably reach a conclusion.  But my recollection of the policy was that it was effectively a direction that somebody else should make that decision.

MR HERZFELD: The direction is do not consider (c) or (d) first. If there is a character issue, it goes to section 501. Then a 501 delegate will determine the matter and the application will be referred back to the processing officer and the applicant will have satisfied PIC 4001(c) or (d), whichever is applicable. That is because if your Honour looks at the terms of PIC 4001 – does your Honour have that?

HIS HONOUR:   Yes, I do.

MR HERZFELD:   So if your Honour looks at (c) and (d), the criteria is:

(c)      the Minister has decided not to refuse ‑

. . . 

(d)      the Minister has decided not to refuse –

So if there has been a decision by a section 501 delegate not to refuse under 501, it will mean that (c) and (d) are satisfied.

HIS HONOUR:   Yes, I see.

MR HERZFELD:   That is how it fits together.  The third feature of the practice to which we draw attention is this.  In order for a decision‑maker – and that is a single decision‑maker – whether it is the Minister or a delegate to grant a visa, the decision‑maker has to be satisfied that the relevant criteria are satisfied at the time of their decision.  But it is obvious that amassing and assessing the information relevant to the determination of a visa might take time. 

Further, the Department’s practice, as your Honour has seen, is that cases only get referred for section 501 consideration if the applicant satisfies the visa criteria for grant. So, depending on how long the section 501 consideration takes, there may be quite some time between the initial consideration of whether the applicant satisfies the criteria and any return of the matter from the Character Consideration Unit. So, as a matter of practice, what is done is the making of preliminary or indicative assessments of criteria and those are the assessments which are relied upon to decide whether to send the matter for character consideration.

Your Honour has seen from Mr Arnold’s evidence that those indicative assessments or preliminary assessments might be made by different officers who may or may not hold delegations under section 65.  But critically, if the matter is then referred back after character consideration ‑ so we are dealing with a case where 501 has not been relied upon to refuse the visa – if the matter is referred back then a delegate will actually come to make a decision under section 65, a single delegate, and while they might have regard to those previous assessments, they must make their own decision. 

The evidence is that if they do not agree with those previous assessments, further assessments may be undertaken.  So there is no divvying up of the decision‑making.  The ultimate decision whether to grant or refuse a visa will be made by a single person, whether it is the Minister or a delegate, but the delegate may well have regard to a whole range of information, including the preliminary assessments which have been done by others.  That structure is quite similar to that considered in a number of Federal Court cases in the early 2000s where delegates had prepared draft decision records or other internal records of their thinking on visa criteria, but the decisions had not been finalised. 

May we give your Honour two references, please.  The first is VMOZ [2003] FCA 188, and the second is SGNB (2003) 132 FCR 192. The contentions in those cases was that because draft decision records or other internal records had been prepared, that actually evidenced a decision to grant the visa. Those claims were rejected because the preparation of a draft decision record or an internal record did not actually evidence the making of a decision by a delegate as to whether to grant the visa. It simply involved the thought process of a particular person at a particular time which was not irrevocable ‑ ‑ ‑

HIS HONOUR:   The short point really, Mr Herzfeld, is that, as those of us on this side of the Bench well know, decision‑makers can change their minds right up to the very last moment or, as in this case, there could be very unfortunate circumstances where a decision‑maker has reached perhaps even a very strong preliminary view and then passes away.

MR HERZFELD: Yes, that is so, and that is the kind of matter which was considered in those cases to explain why, even though there is an internal record which looks rather definitive, it does not involve a conclusion that there is an actual decision on the visa criteria. None of this is altered by the extended definition of “decision” in section 474 as including preliminary conduct. The point of that definition of course is to provide a broad scope for the privative clause, but that is not to suggest that every thought process of every person which is part of reaching a final decision whether or not to grant a visa is itself a final and irrevocable determination of satisfaction of particular criteria.

So, in light of that practice, can I come then to the factual record here. It is common ground that the plaintiff’s application was considered by a delegate of the Minister ‑ that is Ms Marie‑Nelly ‑ on 18 November 2016. Your Honour has seen a record of her view as to Australian protection obligations. There is a former record, if I can just give your Honour the reference in Ms Tattersall’s affidavit at page 11. That record was headed “Indicatively Met”, and that fits with the departmental practice that I have explained. It is common ground, as I say, that she held the delegation under section 65 but did not hold the delegation under section 501, and it is common ground, as your Honour has just observed, that the delegate retired from her employment with the Department on 1 April 2017 and is now deceased.

We accept there were also preliminary or indicative assessments of the plaintiff against a number of other criteria. What happened then was that on 16 February 2017 the application was referred to another officer in the Department for section 501 consideration and that delegate decided on 21 July 2017 to refuse the visa under section 501. There is no record of any assessment having been undertaken of PIC 4001 or the national interest criterion, but there is evidence of a waiver of the Iran penal check for the offshore component but nothing else.

May we say this, it is not to the point that PIC 4001 does not state in terms that it has an offshore and onshore component. PIC 4001 covers character concerns arising from overseas and those arising onshore; it is entirely neutral. Hence, as an administrative process there are processes to investigate both the onshore and offshore sources of character concern. But relevantly there is no record of a delegate considering at a preliminary level or a final level 4001 and there is no record of the delegate or the Minister having assessed the national interest criterion and there is no record of a delegate or a Minister having finally assessed whether all the criteria were met for the purposes of considering whether to grant the visa, and that is of course because the process was interrupted by the section 501 refusal.

So therefore when your Honour is asked to make a factual finding that on 18 November 2016 the first delegate or indeed anyone else was satisfied that all criteria for a visa were met, there is just no basis for your Honour to make that finding.  In the first place, consistently with the practice that I have explained, each of the assessments which are evidenced in the record were preliminary or indicative.  They do not evidence the formation of a state of satisfaction of an individual delegate focusing on the question should this visa be granted? 

Those criteria needed to come together in the mind of an individual to decide whether to grant a visa, and that just never occurred because, in light of the character concerns, the matter went to the Character Unit and was then refused under section 501. Secondly, as I have said, there is no record of any assessment of PIC 4001 and, thirdly, there is no record of any assessment of the national interest criterion. So the factual finding upon which ground 1 depends must fail as well. In the course of those submissions, your Honour, that really addresses both ground 1A which we have elaborated on in our written submissions and ground 2.

Can I turn to ground 3 briefly, please. By ground 3, the plaintiff attacks the validity of PIC 4001 and there are two grounds of that attack. The first is to say that it is void for uncertainty because if refers to the character test, but that expression is not defined in PIC 4001. Now, the obvious meaning of that expression is the thing defined in section 501(6) as the character test. That is consistent with the presumption in the Legislation Act that words defined in regulations have the same meaning as they have in the Act. You cannot divine a contrary intention from the fact that section 501(6) defines the character test for the purposes of that section. That does not stop a regulation then from picking up and applying that definition.

If we were wrong about that, if there was a constructional choice, there would be two reasons why your Honour would favour the construction for which we contend. The first is at the very least PIC 4001 would be of uncertain meaning and that would be productive at the least of inconvenience, and of course your Honour would favour a construction which is productive of convenience rather than inconvenience. But there is a more powerful point. If the plaintiff is right that PIC 4001 is void for uncertainty if “character test” has no defined meaning, that would attract the ut res presumption, that is, there is a strong presumption against invalidity and your Honour would strive with more than usual earnestness to avoid the invalidity which the plaintiff says arises, and the easy way to do that is for “character test” to have frankly the obvious meaning, which is the meaning in section 501(6).

That proposition is supported by authority, by four members of this Court in Plaintiff M47. I will give your Honour the references: in the reasons of Justice Gummow at paragraph 92, the reasons of Justice Hayne at paragraphs 188 to 189, the reasons of Justice Heydon at paragraph 266 and the reasons of Justice Kiefel at paragraph 431. Now, we do not say that that forms the ratio of the decision. I think some of those judges were in dissent. The question which is now raised was not in issue in that case, so we do not say it is binding upon your Honour, but there is clear dicta of four members of this Court reaching the, with respect, obvious conclusion that “character test” in PIC 4001 means the thing defined in section 501(6). That was the same conclusion reached by Justice Lindgren in SZLDG at paragraph 86. 

Your Honour, the plaintiff’s second ground of attack on PIC 4001 is based on a contention that it makes the assessment of the character test a mandatory requirement for the grant of a visa while the power to refuse under section 501 is discretionary, and it is said that subordinate legislation cannot make assessment of the character test a mandatory requirement when the power to refuse the grant of a visa under section 501 is discretionary. But that argument must fail when one looks at PIC 4001 itself. If your Honour takes that up again, please, your Honour can see that it is satisfied in a number of different ways ‑ (a), (b), (c), (d) – and in substance because of the different ways in which PIC 4001 can be satisfied, including (d):

the Minister has decided not to refuse to grant a visa to the person despite not being satisfied that the person passes the character test.

And (c):

the Minister has decided not to refuse to grant a visa to the person despite reasonably suspecting that the person does not pass the character test –

Those limbs, (c) and (d), reflect the discretionary aspect of section 501. So there is no occasion to consider whether the character test could be made a mandatory requirement of a visa. That might be an interesting question. PIC 4001 does not seek to do so. It does not change the discretionary nature of the character test. In fact, as your Honour knows, the way in which it operates in practice is that it follows from a determination of section 501 in any event and so, for that reason also, there is no attempted transformation of a discretionary refusal power into a mandatory refusal criterion. So that issue simply does not arise.

Your Honour, that only leaves ground 4. By ground 4, the plaintiff contends that the decision made under section 501 was beyond power because by that time he met all of the criteria for the grant of a visa. That falls ‑ for all of the reasons that I have already covered, it is based on a factually wrong premise, it is based on a legally wrong contention about the way the provisions work and, even if the legal and factual contentions were established, it does not follow from the fact that a visa ought to have been granted that the power in section 501 evaporates. To the contrary, on the plain text of the Act, the power in section 501 remains until a visa is in fact refused, and that did not occur here.

Would your Honour just excuse me for one moment.  Your Honour, unless there are any matters that we can assist your Honour with further, those are the oral submissions that we would seek to make.

HIS HONOUR:   Thank you, Mr Herzfeld.  You finished with 30 seconds to go.

MR HERZFELD:   I think actually I finished about 15 minutes earlier than I planned, which is just extraordinary on my part and probably unprecedented in the history of the New South Wales Bar.  I am trusting that Ms De Ferrari as a result will not reply for 20 minutes, otherwise I will feel extremely hardly done by.  Thank you, your Honour.

HIS HONOUR:   Ms De Ferrari, you can take as long as you need.

MS DE FERRARI: Your Honour, I think I have about eight points, if I have counted them correctly. The first point arises in response to the issue about the decision of the AAT. The simple fact of the matter is that had the plaintiff known ‑ had he known because the Minister had told him what he was doing, that he was waiting and deciding to consider section 501, had he known that on 1 January 2017, and as we said, he would have been able to obtain mandamus, there simply would have been no application to review made by him to the AAT because there would have been no reason to, and so there simply would not have been any decision of the AAT.

The whole reason why this cascading sequence of events has happened, including him having to take the step of going to the AAT for review, starts from the fact that, wrongly, something did not occur on – say, take 1 January 2017 – when it should have occurred and had it occurred none of the subsequent events would have happened, including a 501 decision, including him then applying for review at the AAT.  That brings really the second point, this decision about ‑ ‑ ‑

HIS HONOUR:   Just before you move on to the second point, Ms De Ferrari, do you say then that a section 65 decision‑maker should not, or in fact must not, delay or wait for any section 501 decision that might be pending?

MS DE FERRARI: Well, the question is, as I say, in a sense a little pregnant with the answer because it is predicated upon “might be pending”. Can I put it another way. The question was – I think your Honour referred to this as well, your submission is otherwise that section 501 would be stultified. The conceptual problem, your Honour, is this. It assumes that there must be consideration of section 501 in every case. That is plainly not so, and that is plainly ‑ ‑ ‑

HIS HONOUR:   I think what Mr Herzfeld’s submission is, is not that there must be consideration of 501 in every case, but there must be at least a reasonable period of time for the Minister to be able to consider the exercise of section 501 and to exercise the power under section 501 in any particular case that he may need to.

MS DE FERRARI:  Why?  There is nothing in the Act that provides to that effect at all.  Your Honour must remember that there is actually a whole raft of other powers that the Minister has at his disposal, including personal powers, to cancel a visa, including on character grounds, subsequent – some of them – you know, there are limits to when it applies, or conditions, precedents or whatever it might be, but they are all separately independent to the question that arises for the section 65 delegate which is – it only arises there – whether the visa should be granted.  What is it in the Act – the only limb to this is “not prevented by”.  That is the only limb to it.  There is nothing at all in the Act that assumes that the Minister must have an opportunity ‑ ‑ ‑

HIS HONOUR:   Do you accept that the words “not prevented by” must mean that the Minister must have an opportunity in a particular case to be able to exercise the power under section 501?

MS DE FERRARI:   No, we do not accept that at all, your Honour.

HIS HONOUR:   So the “not prevented by” should read “not prevented by (because the Minister might never even have the opportunity to exercise ‑ ‑ ‑

MS DE FERRARI:   No, “not prevented” means there has not actually been a decision that in fact refuses, which is exactly the same way in which 91W operates, exactly the same way as 91WA and 91WB.  That is exactly the same way.  It is also the same way in which section 40 operates, because section 40, when one goes back and looks at it, does not actually, of itself, prevent, it makes applicable in certain circumstances, circumstances when the visa might be refused.

So they all operate consistently, and all they ask, exactly how, as Justice Rares analysed it, at the particular point in time that you are looking at how to discharge the duty in section 65 coupled with the duty in section 47, is you look at, has there been a decision to refuse, or, in the case of section 40, circumstances which prevent the grant of the visa that exist, in fact, at the point in time when you are considering that particular part of section 56?

The whole problem, and it is a construction that only arises because the Minister continues to make the decision in this way, is an assumption that section 501 must be considered, which is plainly stated in those policy documents. You must consider section 501. You must consider character concerns. And then, must consider character concerns and you must be able to do it under section 501? But why? Parliament has not made it a mandatory ‑ ‑ ‑

HIS HONOUR:   No, it is the assumption that the Minister must be given a reasonable opportunity to consider 501, but I understand your submission, the Minister does not need to have a reasonable opportunity to consider that.

MS DE FERRARI: And, your Honour, the Act in fact provides to the contrary, because PIC 4001 ‑ and I should answer that as well, in terms of whether PIC 4001 is discretionary ‑ it is actually not PIC 4001, we refer to PIC 4001 by way of a shorthand, the relevant criterion, which is mandatory for the section 65 delegate to consider is relevantly in this case clause 790.226(a). That is mandatory. It is not discretionary, it is not suspendable, to allow someone else to do the same job under section 501, it is mandatory. So there is a mandatory requirement, if it is valid, to consider the character test, and the Minister just erected this structure to say, no, no, no, I want to have the opportunity in every case to consider refusal under section 501, when the Act does not give him that at all.

So that is how we have put it.  In terms of this decision in fact, and invalidity or void, I suppose, the point we make is that if there had been a grant of the visa, as of that particular date, which there would have been, if we are right but for the failure to discharge the duty, then what is said by this Court in Bhardwaj at 51 in particular, and what is said by this Court in Hossain at 64 in particular, that is, that certiorari operates to remove the purported legal consequence:

which has, at the date of the order, a discernible or apparent legal effect upon rights”.

So it removes the purported legal consequences that the section 501A decision is meant to have, operate. And the distinction, here, in terms of something in fact, is with what, for example, Justice Gageler referred to in State of New South Wales v Kable at 52.  It explains, that paragraph explains decisions in fact that actually have consequences that are not put by what this Court has said in Bhardwaj and Hossain, it is cases like there has been a sale of the property.  It might have been under invalid law, it might have been under invalid purported exercise of the power, but there has been.  So you cannot undo that, in terms of certiorari.  That is the kind of “in fact” that applies.

It does not apply to this “in fact” decision under section 501A(2) which the Minister reads as a response to everything. It is an illusory

response.  It is a response that purports to say to this Court, and to my client, we have made all of these errors, which are actually jurisdictional errors, but you cannot do anything about it.  That cannot be right, it just cannot be constitutionally right, under section 75(v).

Now, the other point that my learned friend has made is that ‑ I see that I am obviously now becoming amusing ‑ the other point is that it is not unreasonable to decide to wait until consideration applied by someone else, by the section 501 delegate, but again, what is the basis for saying it is not unreasonable to decide to wait?

There is nothing in the Act that requires it.  In fact, there is a duty, under section 65, to proceed to consider immediately clause 790.226, which picks up PIC 4001.  So this whole idea, this whole structure that has been erected, is in fact completely inconsistent with the Act, is only given effect by a policy that is plainly unlawful.  There is no basis at all for any policy that purports to cut across the mandatory duty that is imposed upon the delegate by the Act, which is to consider everything.

And if the character test in PIC 4001, as picked up by clause 790.226, has the same meaning as in section 501(6), then the section 65 delegate is under duty to refuse there and then. That is the simple answer, none of this special team or specialist skilled people to specially draft specially‑confected section 501 reasons for decisions which then allow the Minister to go on and make section 501A(2) decisions. Unless there is anything further, your Honour, those are the submissions in reply.

HIS HONOUR:   Yes.  Thank you, Ms De Ferrari.  I will reserve my decision and the Court will adjourn.

AT 4.07 PM THE MATTER WAS ADJOURNED