Madafferi v MIMA M144/2002

[2003] HCATrans 803

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M137 of 2000

In the matter of -

An application for a Writ of Prohibition or for an Injunction or for orders in the nature of Certiorari against MR LAURIE DUNCAN (IN HIS CAPACITY AS A DELEGATE OF THE SECOND RESPONDENT)

First Respondent

THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Second Respondent

Ex parte –

FRANCESCO MADAFFERI

Applicant/Prosecutor

Office of the Registry
  Melbourne  No M144 of 2002

B e t w e e n -

FRANCESCO MADAFFERI

Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

Application for special leave to appeal

McHUGH J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 20 JUNE 2003, AT 11.18 AM

Copyright in the High Court of Australia

__________________

MR T.V. HURLEY:   If it please your Honours, I appear on behalf of the prosecutor applicant in the first matter and the applicant for special leave in the second.  (instructed by Acquaro & Co)

MS H.M. SYMON, SC:   If the Court pleases, I appear with my learned friend, MR S.G.E. McLEISH, for the respondents.  (instructed by Australian Government Solicitor)

McHUGH J:   Yes, Mr Hurley.

MR HURLEY:   Your Honours, in relation the application for special leave, the applicant seeks special leave asserting that this matter raises four questions which are appropriate for the grant of special leave.  The first, your Honours, is the question of whether or not the decision of the AAT, even on the legislation as twice amended after the decision was made, is an original decision as defined in section 501A(2) of the Migration Act.  The Full Court below, in our submission, erred in its treatment of that point, even on the provision as amended. 

The reasoning of the Full Court, your Honours, is set out in its reasons, critically at page 740 of volume 3 at paragraph 70 at line 6.  If I can precede this, your Honour, the Full Court correctly observed at page 739, the previous page, at paragraph 68 that the Administrative Appeals Tribunal was proceeding under section 43 and at the conclusion of paragraph 68, it concluded in the last sentence that:

The reasoning in Powell led to the conclusion that a decision of the AAT affirming a delegate’s decision was not a judicially reviewable decision under the Migration Act –

because it was made under the AAT Act.

In the following paragraph 69, the Full Court then goes off to construe section 43 of the AAT Act in light of section 501A of the Migration Act before it comes to its conclusion at paragraph 70 over the page at page 740, where the critical sentence is where the Full Court holds that:

Notwithstanding that the matter has to be reconsidered by the delegate, the AAT has, albeit under s 43, declined not to exercise the power conferred by subs 501(1) to refuse to grant a visa.

It is our submission, your Honours, that the AAT was exercising the power under section 43 and not under section 501, which is the definition of “the original decision”, as has subsequently been brought into force by the amendments and is set out at the Court book, amongst other places, in the judgment of the Full Court at page 721 at line 22, where:

This section applies if:

(a) a delegate of the Minister; or

(b) the Administrative Appeals Tribunal;

makes a decision (the original decision):

(c) not to exercise the power conferred by subsection 501(1) to refuse to grant a visa to the person ‑

Our submission is, your Honours, is that the Full Court fell into error by reference to the word “albeit”, that the decision is either made under section 501 or it is made under section 43 of the AAT Act and it is only a decision under section 501(1) which can be an original decision and that the reasoning of the Full Court slides over that.  It would be by analogy, your Honours, if the original delegate of the Minister referred to in section 501A(1)(a) had decided not to decide the matter, but to put it to one side.  That act of deferring the decision would not be an exercise of power under section 501(1) but simply an executive act of deferring the decision.  We submit, your Honours, that that question arises and it is a question of public importance because ‑ ‑ ‑

HAYNE J:   Assume that for the moment, and it may be a large assumption, but assume it.  Where does that then take you in this chain of reasoning?

MR HURLEY:   Your Honour, if we are right on that point, then the Minister did not have jurisdiction to set aside the decision of the AAT.

McHUGH J:   Does it not depend on whether 501A is retrospective? 

MR HURLEY:   Your Honour, we would have to concede 501A in the new form introduced afterwards, which is the form it takes at page 721 - page 721 is the new form.

HAYNE J:   On that new form, the point which you now make would not get you anywhere, would it?

MR HURLEY:   We say it would, your Honour, because at page 721 line 23, the reference is:

makes a decision (the original decision):

(c) not to exercise the power conferred by subsection 501(1) –

We submit the AAT did not make a decision not to exercise the power.  It did not make a decision under section 501.  It only ever made a decision under the AAT Act under section ‑ ‑ ‑

HAYNE J:   That is sliding between two propositions, Mr Hurley.  That is sliding between the proposition of whether they decided not to exercise a power conferred by 501 and the question of where they got the authority not to exercise.

MR HURLEY:   Your Honour, the reasoning of the Full Court, in our submission ‑ ‑ ‑

HAYNE J:   Is it not essential to your argument to demonstrate that the new provisions were not retrospective?

MR HURLEY:   Your Honour, no, the new provisions are intended to be retrospective to 1 June 1999 and, although they themselves were amended to make the amending provisions also retrospective to 1999, we cannot put that.  We can only refer the Court to the current provisions, which we do, which is one at page 721, which is the reference to whether there has been a decision not to exercise the power conferred by subsection 501(1) and I repeat the submission that in construing this issue, the Full Court tacitly recognised ‑ ‑ ‑

McHUGH J:   You have to distinguish Lam’s Case, do you not, on this argument?

MR HURLEY:   Well, we do endeavour to do that in our written submissions, your Honour, by saying that the decision in Lam was a black and white decision, that the criterion was satisfied, go and proceed to the rest of the criteria.  The decision of the AAT here was neutral.

McHUGH J:   You say a decision is not one of deliberate neutrality, is that your argument?

MR HURLEY:   We say it was one of deliberate neutrality.  The AAT ‑ ‑ ‑

McHUGH J:   Yes, you say it was?

MR HURLEY:   Yes.

McHUGH J:   Yes, and therefore it is not within 501?

MR HURLEY:   Yes, your Honour, it is a decision that only the AAT could make under 43(1)(c).  A delegate could either find the criterion satisfied or not.  The AAT can remit it for reconsideration in the middle and we distinguish Lam on that basis because in Lam it was a decision that a criterion was satisfied and a direction that the rest of the application be considered.

HAYNE J:   Does it follow that 501A(1)(c) at 721 on your contention can never operate because there could never validly have been a decision not to exercise the power?

MR HURLEY:   Because the AAT would make a recommendation and it would not be the AAT’s decision, it would be the next decision.  The AAT does not abandon the exercise; the AAT says, “I set the decision aside and recommend that something else happen”.  So, your Honour, it would be the next decision that the Minister could look at and not this decision.

McHUGH J:   But you have to contend that, notwithstanding that the explanatory memorandum made it clear that the Minister intended to have power in respect of such decisions.

MR HURLEY:   Your Honour, the explanatory memorandum says that and Parliament has passed an Act.

McHUGH J:   Yes.

MR HURLEY:   The explanatory memorandum speaks of black and white.  But Parliament must have forgotten that it gave the AAT a middle course.  That is our submission, your Honour.  That is the first of four points in the special leave application.

The second one, your Honours, is the no evidence ground.  The Court recently considered this issue in the decision that it gave in Rajamanikkam which is in our book of authorities at 2.1.  The question that is raised here is whether the Minister made the decision on a fact and that fact did not exist within section 476(4)(b).  The fact that the Minister relied on, your Honours, is found in his reasons at page 655.

McHUGH J:   That is the short point, that the Minister was not advised that in August 2000 the Italian authorities had made an application for the order of extinguishment.  That is the point, is it?

MR HURLEY:   Yes, your Honour, that is the point that while the Minister is trying to enforce - the fact that the Minister finds - as we put in our written submission, there are two facts:  one is, your Honour, that there was a warrant of arrest – the fact that there was a warrant of arrest is a fact, but the second fact is that it required the applicant to serve a consolidated sentence of a certain term which was not the fact because the Italian authorities were in the very process of unravelling it and, as the evidence of the Italian lawyer given below revealed, that could have occurred at any time from a date in 1998, being the tenth anniversary.

McHUGH J:   But there was before the Minister in the issues for consideration statements to the effect that the Italian authorities had known that Mr Madaferri was in Australia and they were not interested in extraditing him.  Did it not also say that he may be able to appeal in relation to some of the sentences or to obtain a new trial?

MR HURLEY:   He had said that, your Honour, at paragraph 7 of the reasons.  There were two issues that were raised.  Before the AAT another Italian lawyer gave evidence, as your Honour has just said, that there could be a retrial in absentia.  The point that was raised as the fact it did not exist is the way Italian criminal law operates, which is that a determination of a criminal court (1) proceeds…..consolidation; and (2) has a process of expiry.  So that that point was not made to the Minister.  The advice that is given there is a reference to the evidence of the Italian lawyer before the AAT that a rehearing of trials in absentia ‑ ‑ ‑

McHUGH J:   What is your answer to the Full Court’s point that it was not the length of the sentence that was really material so far as the Minister was concerned, but the unfinished business?

MR HURLEY:   Because, your Honour, the phrase “unfinished business” is what the Minister’s counsel said.  What the Minister said is at paragraph 12 and the Minister referred to ‑ ‑ ‑

HAYNE J:   Which page?

MR HURLEY:   Page 655, line 12:

I took into account the fact that the Italian authorities have issued a warrant of arrest which required Mr Madafferi to serve a consolidated sentence of 4 years, 8 months and 6 days –

That is the fact that the Minister took into account.  Your Honour Justice McHugh raises the second point, that the way these reasons have been treated in the court below has been very selective, that points adverse to the applicant, the reasons are read generously and points in favour of the applicant are, with the greatest of respect, ignored.  The treatment of reasons is, we submit, one of the reasons why special leave should be granted.  We understand a similar matter is reserved before the Court in the matter of Palme where no reasons were given.  These reasons were not given, we submit, in accordance with 501G.  They were given in the court process; a request was followed by the delivery of the reasons the court has.  So we do not submit that subsection 501G(1)(e) was complied with at the time but we do have reasons, and the reasons are treated in different ways in different contexts.  That point is made in a paragraph in our submission in the special leave application. 

So, your Honours, the special leave point in this ground is that the law in this point is stated by this Court in Rajamanikkam and it is thought that the Court effectively divided on the question with your Honour Justice McHugh and Justice Gaudron concluding that this offered a discrete ground of review and the Chief Justice and Justice Callinan disagreeing and Justice Kirby making a majority, we would submit, with your Honour, but that is the subject of debate.  That issue itself is raised in this matter and is a matter that warrants special leave.  While the Migration Act provisions have been repealed, the same provision exists in the Administrative Decisions (Judicial Review) Act, as your Honours observed in the decision your Honours gave 72 hours ago in S20 of 2003 in relation to the unreasonableness that these codes have been transported into the Act.  So, your Honours, we submit that ground is made out and the fact relied on by the Minister did not exist.

The third ground, your Honours, relates to the treatment of national interest.  We put that two ways.  The first way is that the Minister had the power in 1997 to declare the applicant an excluded person.  That would have prevented him seeking merits review.  The relevant authority or statutory provision, your Honour, is the first document in our book of authorities; it is section 502(1)(a)(ii) that was repealed on 1 June 1999.  The Minister could have done that, but he would have had to tell Parliament.  He did not.  He and the applicant then engage in litigation in the AAT for the next two and a half years.  The Minister loses and at that point the national interest is put against my client as justifying setting aside the decision of the AAT.  The only thing that has changed in the meantime, my client has been in Australia, there is nothing known against him and the Italian authorities ‑ ‑ ‑

McHUGH J:   Yes, but this is really an attack on the merits of the decision, is it not? 

MR HURLEY:   No, your Honour, it is put two ways .  The national interest, that is one.  The second way is the way the Minister used it.  We submit that section 501A(2)(c) requires the Minister to be satisfied that the exercise of power is in the national interest, that the end result is in the national interest.  The way the reasons are structured that the Minister gave at page 654 at paragraph 6, he treats the national interest as just a doorway to be passed through on the way to making the decision.  So at paragraph 6, that is the paragraph that addresses the national interest.

Now, your Honours, any decision to remove anybody from the country is a question which involves a national interest in the sense that that is why the decision is being made.  We submit the proper construction of section 501A(2)(c) requires that the result of the exercise that - that paragraph provides the Minister is satisfied that the refusal or cancellation is in the national interest.  We submit that the “national interest” should appear at the end of the reasons, saying “I have considered all of this and this is such a case that, of all the other cases, this requires a decision in the national interest”.  The Full Court rejected this submission by saying he considered everything and there were a lot of relevant matters and that at page 746, paragraph 84, as the learned primary judge found – I am sorry, your Honours, I have the wrong ‑ ‑ ‑

McHUGH J:   Page 746 deals with the national interest.

MR HURLEY:   The conclusion of that is pages 747, 748, 749.  Again, the way the reasons are structured – this is at the beginning of line 30.  I think it is paragraph 90 of the Full Court’s reasons:

In considering the national interest question in par 6 of his reasons, the Minister made reference to a number of factors –

but that was on the way to start the decision and not whether the final result was, as Parliament has provided, whether the refusal or cancellation is in the national interest. The reference to the national interest should, in our respectful submission, have appeared at the conclusion of his reasons at paragraph 17, which leads me to a fourth point, which is the General Direction 17 point.

McHUGH J:   That is the policy point?

MR HURLEY:   The policy point.  Now, your Honours, it is true that the policy has been repealed and replaced by General Direction 23.  Such benefit as the applicant had of the statute has been repealed and been removed by Parliament and now General Direction 17 has also gone to be replaced by 23. 

McHUGH J:   Just remind me again, where is the passage that you claim shows the Minister took into account General Direction No 17 without regard to the merits of the case?

MR HURLEY:   There are two, your Honour.  At page 654 at line 24, he says:

8.  I also proceeded in accordance with the Government’s view on serious crimes as set out in my General Direction number 17 ‑ ‑ ‑

McHUGH J:   Yes.

MR HURLEY:   Then:

I still consider that my Direction properly indicates how I consider the powers –

If I can take your Honour to paragraph 9, he says:

I gave primary consideration to the protection of the Australian community –

that is primary consideration 1, your Honour.  In paragraph 16 on the next page, he says:

I also gave primary consideration to the expectations of the Australian community.

That is primary consideration two.  In the next paragraph, 17, he says:

I also gave primary consideration to the best interests of his three children –

that is primary factor three.  Over the page to paragraph 21, he says:

I also took into account other considerations –

now, that is other considerations, not primary considerations.  At paragraph 25 he balances it and he says in paragraph 25 in the last line on page 656:

I found that the protection of the Australian community, particularly having regard to the nature and seriousness of the offences –

we interpolate the Minister having decided the man had a low risk of recidivism –

and the expectations of the Australian community –

so those two primary factors –

outweighed the other relevant considerations referred to above.

At which point we observe, your Honour, the primary interest of the children, which is accepted as a primary factor, has disappeared.  It simply merged into a collage of other relevant factors.

So the point of law as to whether that was the correct way to apply a policy, your Honours, has not been resolved in the Federal Court.  The observations of the Full Court in this case are dicta.  It referred to dicta in another Full Court; it is a question that is alive.

McHUGH J:   Now, what about your order nisi?

MR HURLEY:   Your Honour, in relation to that, we say we rely on breach of the grounds of natural justice.  But primarily we ‑ ‑ ‑

HAYNE J:   What is the essence of the failure of natural justice here, do you say?

MR HURLEY:   That, your Honour, in seeking an extension of 14 days to put a submission, the applicant was engaging in a campaign of unusual obfuscation which was directed by some unknown and other persons and that that was unwarranted, gratuitous, is not the fact and the applicant was not told.  More importantly, your Honour, it is what the Minister had in his mind in relation to what I will call the Bastin evidence.  The Minister in the AAT led evidence from a Victorian police officer of a whole lot of allegations ‑ ‑ ‑

HAYNE J:   But strip away all the language that may have been found in the file.  What is the essential complaint you have?

MR HURLEY:   That, your Honour, the decision concerning the applicant was made by the Minister by reference to other persons and allegations concerning other persons and not the applicant.

McHUGH J:   That is not quite correct, is it?  The statement about someone desperate to prevent the applicant from being sent back to Italy appeared in the reasons of the AAT, did it not?

MR HURLEY:   It did, your Honour.

McHUGH J:   Well, the Minister had that before him and your client was aware of that, was he not?

MR HURLEY:   Your Honour, he had that part of the reasons of the AAT before him, yes.  My client was aware of that and I think the submissions on his behalf address it.  But what is unknown, that fact has to be put in light associated with the fact of the Bastin evidence which the Minister led in the AAT as providing and identifying who these other persons were.  It was not the applicant’s wife who was the cause of the unusual campaign of obfuscation, but these other persons that are referred to in the Bastin evidence.  Now ‑ ‑ ‑

McHUGH J:   Your complaint is that independently of the applicant’s own problems in Italy, that he is a victim of guilt by association?

MR HURLEY:   Yes, yes, guilt by association, yes, and it was for that reason that one of the two attachments before the Minister was placed there, that being the fact that there was no criminal record of his brother’s in Australia, was one of the two attachments that went to the Minister.  So we submit it may be a natural justice point or it may be something that is put before the Minister.  In the statement of reasons it is not adverted to and the applicant is left, as we submit, and so is the Court, uncertain of what the Minister had in mind.  The material facts upon which this decision was based have not been expressed.  The other natural justice point relates to a variety of what we say are irrelevant and other matters that were not considered.  But the principal one is that the Minister did not have in front of him the decision or reasons of the AAT.

McHUGH J:   But he had part of it, did he not?

MR HURLEY:   No, your Honour, no.  Sorry, he had extracts from it.

McHUGH J:   He had an extract.  Is that not what appears at 628?

MR HURLEY:   Some of it does, yes, your Honour.

McHUGH J:   Yes.

MR HURLEY:   But more importantly, your Honour, he was not told what the order or decision of the AAT was and that is the point we make in this, that he was told at page 622, line 28:

On 7 June 2000 the AAT overturned the Department’s decision and directed that on reconsideration Mr Madafferi was not to be refused a visa on character grounds.

That statement is repeated at page 624, line 36, the same sentence and:

Deputy President Blow overturned the Department’s decision on 7 June 2000 and directed that on reconsideration Mr Madafferi was not to be refused a visa solely on character grounds.

That is not, with respect, what the AAT decided, which is set out at the appeal book at page 508 where the order is:

is not to be refused a visa on character grounds solely on the basis of information presently available to the respondent.

Now, if the respondent acted on that, we submit, he would have found out the Italian orders are in the process of being set aside.  It may have changed his view of the AAT’s decision completely.  He just was not told what the AAT had done.  Your Honours, the only matters that were before the Minister, in our submission, are the two attachments that are referred to in the reasons. 

McHUGH J:   But how does natural justice come into it?  What is the natural justice point?

MR HURLEY:   I am sorry, your Honour, I have moved.  This is ‑ ‑ ‑

McHUGH J:   Unreasonable exercise of power, is it?

MR HURLEY:   Unreasonable exercise of power and failure to take a relevant consideration into account, being what was the decision of the AAT, and that is not a matter that was brought to the Minister’s attention.  The AAT order that he was setting aside was not correctly communicated to him.  It appears also that he was refusing a visa made in an application without itself having been brought before him either.

Your Honours, while there is reference at paragraph 2 at Court book 625, line 29, “Departmental files 96/300771 and 97/300915” which are said to “contain evidence of Mr Madafferi’s criminal conduct and general conduct” and we interpolate, the conduct of other persons, those files were placed before him as attachment C and nor was the decision of the AAT.  So the Minister is setting aside a decision of the AAT which is incorrectly described and he is refusing an application for a visa, the details of which are not placed before him.

In the recent decision of S20 that your Honours’ judgment was given on Tuesday, your Honours accepted at paragraph 35, it being decision 2.6 in our authorities, that jurisdictional error, which is what we assert has happened here, can arise to:

review of factual determinations for taint by “gross error, manifest illogicality and unreasoned perversity”.

We submit that the decision here is in terms of seeking an order nisi of that nature.  The Minister did have the reasons of the AAT before him, did not have the application before him.  He gave the applicant 14 days after two and a half years to respond and when he is obliged to give reasons by section 501G(1)(e) he sets out the issues paper.  Unlike the issues paper considered by Justice Hayne in Truong or the transcript of it that is reported, this issues paper was a true issues paper.  Like the AAT’s decision, it was an exercise of studied neutrality.  It did not make a recommendation.  It just said it painted the picture for the Minister.  It did not give the matters weight.

Your Honours, we rely on the written submissions and we do seek that special leave be granted.  We seek an order nisi so that we may get the decision of the Minister set aside and have the application for the spouse visa determined according to law.

McHUGH J:   Yes, Ms Symon.

MS SYMON:   If the Court pleases.  If I could deal firstly with the special leave matter.  The first matter raised by my learned friend this morning was the jurisdiction matter.  As I understand it, my learned friend concedes that the amended section 501A did have retrospective operation and, in our submission, that is the end of the matter.

On the no evidence ground, we say that the Full Court was correct and it was correct in its finding that the critical matter as far as the Minister was concerned was not the length of the sentence which might have been outstanding in respect of the applicant, but the fact of the warrant and the question of the unfinished business itself.

McHUGH J:   Mr Hurley puts the point against you that you put a gloss on the Minister’s reasons if you look at what the Minister said as opposed to what his counsel says.

MS SYMON:   Can I take the Court to the summary of the Minister’s reasons which we say is accurate, as set out by the Full Court.  The Full Court ‑ ‑ ‑

McHUGH J:   Why do you not take us to the Minister’s reasons?

MS SYMON:   Certainly, your Honour.  In our submissions we have referred to the relevant passages of the Minister’s reasons.  Mr Hurley refers the Court to the Minister’s reasons at paragraph 6 and the Minister there referred – I am sorry, paragraph 3 firstly.  At the end of paragraph 3 of the Minister’s reasons on page 653, the Minister referred to:

a current arrest warrant in Italy –

and in a subclause –

where he faces an outstanding sentence of 4 years 8 months and 6 days.

We say that on that passage, the critical focus is the warrant of arrest itself.

Secondly, at paragraph 6, the warrant is referred to on two occasions.  That is at page 654.  Halfway down paragraph 6, the Minister noted:

that the Italian authorities have issued a warrant of arrest for Mr Madafferi and that Mr Madafferi faces an outstanding sentence of 4 years 8 months and 6 days in Italy.

Again, the warrant of arrest is emphasised first.

McHUGH J:   Yes, I appreciate that but then in the final sentence in that paragraph the Minister says:

On balance . . . due to seriousness of Mr Madafferi’s convictions and his outstanding warrant and sentence in Italy, it would be in the national interests to refuse his visa.

MS SYMON:   But it is the “outstanding” which is critical.  It is not the length of the sentence which in that last passage the Minister emphasises; it is the fact that there is an outstanding sentence.  It is not disputed that there was an outstanding sentence.  The question is, at the time the Minister made his decision it was an outstanding sentence of four years or an outstanding sentence of one year.  The “outstanding”, whether it is four years or one year, is the critical thing as far as the Minister is concerned and that is apparent in both passages at paragraph 6, we say.

McHUGH J:   So, how do you rely on this?  You say that there was evidence to justify the making of the decision, namely, the outstanding warrant and his criminal record and that the length of the sentence was not so critically necessary to the decision that you could say the decision was based on that ‑ ‑ ‑

MS SYMON:   It simply was not material, your Honour.

McHUGH J:   Yes.

MS SYMON:   It cannot be said that the decision was based upon the question of the length of the sentence.  The decision was based upon the fact that there was an outstanding sentence and the length of it was immaterial.  Certainly, it was not critical in the sense required by section 476(4) and the decision in Rajamanikkam.

That also deals with that factual matter.  The same factual matter was relied upon in the order nisi application on the ground of unreasonableness.  We say that the question of unreasonableness, insofar as it concerns that question of the length of the sentence, is also dealt with and the ground disappears once one focuses upon what we say was the real basis of the Minister’s decision, namely the outstanding warrant and not the length of the sentence.

The question of the national interest we say turns upon the construction of section 501(2) and we say when one looks at section 501A(2) there is no doubt that the Minister approached the question of national interest correctly.  There is nothing in section 501A(2) which suggests that the question of national interest is to be given any particular weight or any particular precedence over the other matters which the Minister was to consider as set out in paragraphs (c), (d) and (e) and, of course, at the end of having considered all those matters the Minister is bound to exercise a discretion.

The matters which my learned friend adverted to this morning as matters which might not have been considered are of course matters which were considered in the course of considering the exercise of discretion, the Minister having been satisfied of the three matters which he initially had to be satisfied of which included the national interest.  So, there is no basis for saying that in approaching the question of the national interest the Minister incorrectly interpreted the applicable law.

Then there is the question of whether the Minister conducted himself in accordance with the rule or policy.  The first point to be made there, if the Court pleases, is that in considering the special leave application the Court needs to take into account that direction 17 no longer exists.  Secondly, direction 17 was made under section 499, so it never bound the Minister in the exercise of this particular discretion, of course.  That being the position, there is really nothing to be served in this case by exploring the question of whether the terms of direction 17 result in weight to be given to the three primary considerations that might possibly exclude other matters being given weight which they might otherwise ‑ ‑ ‑

McHUGH J:   Even though the Minister may not be bound by it, the question is whether he just followed it without regard to the merits of the case.

MS SYMON:   We say a correct reading of the reasons indicates that the Minister did properly conduct a balancing exercise and that the Full Court was correct on this ground and one need only look at page 654 and the Minister’s reasons at paragraph 8 to see that.  What the Minister said, having said that he would proceed in accordance with direction 17:

I still consider that my Direction properly indicates how I consider the powers and functions of the kind here under consideration should be exercised.  In accordance with this I gave consideration to three primary considerations and other considerations.

Clearly, the Minister considered how he should go about exercising his discretion.  In answering that question for himself he said, “I think direction 17 is the appropriate way to exercise my discretion”.  In our submission, it is very difficult to say, in light of that passage, that the Minister slavishly followed direction 17.

McHUGH J:   But does it not seem to indicate that the Minister regarded the contents of General Direction No 17 as exhaustive of his powers, of how he considers his powers and functions?

MS SYMON:   No, your Honour, it is more a case of the Minister considering the appropriate exercise of power and we say – if I could take the Court to page 756 and the Full Court’s decision.  The Full Court referred to Justice Hill’s decision in Surinakova and we say that correctly contextualises the approach that the Full Court found the Minister took and we say the Minister did take.  At about line 25 there is the reference to Surinakova and the passage is set out about two‑thirds of the way down the page:

“There can be no challenge to a decision merely because a decision was made in accordance with a policy.  To ensure consistency of administrative decision‑making, it will often be appropriate for a policy to be issued containing guidelines …  However a decision‑maker must take care to ensure that he does not slavishly follow a policy.”

McHUGH J:   But is not that the criticism that can be made of the passage to which you referred us in paragraph 8 at 654?  The Minister said ‑ ‑ ‑

MS SYMON:   Not at all, your Honour.

McHUGH J:   He said:

I still consider that my Direction properly indicates how I consider the powers ‑ ‑ ‑

MS SYMON:   It is precisely because he considered that question that we say it is impossible to say that the Minister slavishly followed a policy.  It is more a case, we say, of ‑ ‑ ‑

HAYNE J:   Do I understand you to be saying he addressed the question of, “How should I set about this task?”

MS SYMON:   Exactly, your Honour.

HAYNE J:   Formed a conclusion that, “The way in which I set about it is sufficiently set out in direction 17”.  Is that the point you put?

MS SYMON:   Exactly, your Honour.  Then it falls into the category of decision‑making that Justice Hill is referring to in Surinakova, the distinction being that the Minister as a responsible decision‑maker refers to a policy which lays down a transparent way of approaching the decision‑making and in the responsible exercise of the power says, “Well, these guidelines adequately contain the content”.

There is a secondary point, as well, your Honours, if the question becomes focused upon direction 17 itself.  We say that the Full Court’s conclusion that the primary considerations are so wide as to encompass everything which ought to be looked at is a correct conclusion.  So that even if one turned to direction 17 to look and see if there was a danger of a slavish following of a policy, one finds that it is so widely expressed, and even the primary considerations themselves are so wide, that the Minister cannot be found to have left anything out because of some slavish following of the policy.

If I might turn to the order nisi questions.  The first question is the question of natural justice.  My learned friend refers to the allegation that Mr Madafferi was a member of a family involved in organised crime.  When one grounds oneself in the fundamental principles related to natural justice one finds four conditions, we say.  We have referred to Kioa in our written submissions.  Firstly, there has to be adverse information.  Secondly, there must be material before the decision-maker, and that material must be relevant or significant to the decision, and it must be a matter upon which the applicant has not had an opportunity to comment.

If I could take the last matter first.  The allegation of possible criminal associations was made by way of the witness statement of Detective Sergeant Bastin which was before the AAT.  Before the Minister made his decision ‑ ‑ ‑

McHUGH J:   Remind me again.  The statement that someone is desperate to prevent the applicant from being sent back to Italy, that was in Mr Blow’s reasons, was it?

MS SYMON:   Yes, it was, your Honour.  It was a reference to a campaign of adjournment applications which Deputy President Blow referred to as a campaign of obfuscation.  We say the applicant puts a gloss on what Deputy President Blow actually said, and in any event my learned friend says it is not just what Deputy President Blow said; it sits with this allegation about this supposed organised crime connection.  So the real crux of the matter is:  did the applicant have an opportunity to answer this organised crime allegation and, to the extent that he did not, ought he to have?  Now, the first point we make is ‑ ‑ ‑

McHUGH J:   If I remember rightly, the applicant’s solicitors, in response to the Minister’s notice, referred to it being unjust to attribute the delays to Mr Madafferi’s character, I think from recollection.  Am I right?

MS SYMON:  Yes, and when one reads Deputy President Blow’s statement, that is what he said.  He referred to this campaign of obfuscation.  He made the comment that it seems that someone is desperate for Mr Madafferi to stay here, but concluded by saying, “I don’t regard these matters as reflecting upon Mr Madafferi’s character.”  So the real thrust of what the AAT was saying was not some idea that there were sinister persons pulling the strings behind the scenes, but more favourable in fact to Mr Madafferi that none of these matters were being held against Mr Madafferi.

In any event, the question of the supposed organised crime connections were also addressed by Mr Madafferi’s solicitor in the submissions made to the Minister, having received a notice of intention.  The Court will find those at page 259 in volume 2 of the application book.  There is a heading “Criminal Intelligence Information” there at about line 25 of page 259, and a page of submissions which take up the Bastin material which was before the AAT.  As your Honour Justice McHugh points out, the question of delay was also taken up and dealt with at pages 262 and 263 of the application book.

That being the case, if the applicant is to have any basis for being afforded natural justice on this ground, there would have to be some nuance or some new allegation that was made before it could be said that Mr Madafferi had to be afforded a fresh opportunity, having already addressed this material, to make submissions.  Of course, the other question is whether this material was before the Minister except to the degree that it was contained in the submissions made by Mr Madafferi’s solicitors.  There is no evidence in the issues paper that it was before the Minister and there is no evidence from the issues paper that this was, to pick up the phrase of Justice Brennan in Kioa, relevant, significant or credible material that had any bearing on the Minister’s decision.  So again, we say there is no basis for the raising of a natural justice ground.

The other thing which is important, we say, is that the allegation itself, in the sense of the allegation floating about, does not raise it to the level of adverse material.  In Kioa, Mr Kioa’s associations were not of themselves the source of the Court’s reasoning and the Court’s concern.  In the Kioa Case there was not only an allegation, that is a factual allegation that Mr Kioa had certain associations, but that those were a matter of serious concern.  So it was an allegation coupled with a comment which was directed to the decision-maker that gave rise to the natural justice ground.  What the applicant does here is refer to nothing more than a factual allegation which nobody has made anything of.  Finally, the question of unreasonableness ‑ ‑ ‑

McHUGH J:   Before you leave that, I know Mr Hurley has not mentioned it in his oral argument here today but in his written submissions he contended that there was a breach in effect of the Teoh point that the Minister did not inform the applicant that he would act otherwise than in accordance with the relevant Convention concerning the children.  Am I right in that or am I wrong?

MS SYMON:  I do not recall it in the submissions.  Yes, it is ‑ ‑ ‑

McHUGH J:   Yes, it is at 397:

(ii)  The Second Respondent made the decision without informing the Prosecutor . . . that the Second Respondent would act other than in conformity with the United Nations Convention.

MS SYMON:   Yes, your Honour.  It is made in an order nisi application.  The difficulty with this case has been the submissions seem to depart from the order nisi application, so it becomes difficult to ascertain precisely what the grounds are.  I am assuming from my learned friend’s submissions today that that ground is no longer pressed.

McHUGH J:   Yes.

MS SYMON:   If my learned friend indicates otherwise, then I will address the Court on it, but we say it is simply not a ground as put today.

McHUGH J:   Yes.  You were going to go on with unreasonableness.

MS SYMON:   Yes.  There is just the question of unreasonableness, your Honour.  There seem to be two bases here.  My learned friend seems to rely on section 501G(1)(e) and a failure of the Minister to give reasons.  We say that, of course, the Minister did give reasons in this case; he gave them subsequent to providing the notice of decision.  We say that makes no difference and it certainly does not ground any jurisdictional error of unreasonableness because where unreasonableness gets up, it gets up because the decision is arbitrary and it cannot be said when the Minister has given reasons that the decision was arbitrary.

At best, the applicant has an argument that there is a breach of statutory duty – and we assume for the moment that the issues paper is not reasons.  If the issues paper was not reasons, if reasons were given subsequently, there is no more than a breach of statutory duty and one cannot ground unreasonableness on that.  I have dealt with the unreasonableness ground as far as this mutability of the applicant’s sentence point is concerned.

McHUGH J:   Yes, you mentioned that.

MS SYMON:   There is one other basis and that is the submission that the Minister was in some way required to conduct himself by reference to the AAT decision.  We say section 501A, when correctly read, raises the fact of the AAT decision as grounding, if you like, triggering, the occasion upon which the Minister may exercise power.  It does not do any more than that.  The Minister is not required to take it into account, consider it, think about it, wonder whether it was right and perhaps he should appeal it.

The submission is supported by a passage in the judgment of this Court in Jia.  If I could take the Court to that.  It is in our folder of authorities at tab 4 and the particular passage that I rely on is at page 535 in the judgment of the Chief Justice and Justice Gummow.  At paragraph 85 their Honours said:

The reasoning of the Full Court of the Federal Court on the appeal in Gunner was correct, and applies to the present case.  The powers conferred upon the Minister by sections 501 and 502 are not to be qualified by an unexpressed limitation to the effect that they may not be exercised in a case where the Tribunal has set aside a decision to cancel a visa, or set aside a deportation order made against a person, unless there has been some material change in circumstances.  Nor does a decision by the Minister to invoke the powers given by sections 501 and 502 where he is dissatisfied with a previous decision by the Tribunal involve an abuse of power.

They then set out a passage from Gunner and if I could take the Court to the last two-thirds of that passage:

“However, the Minister accepted the decision which the [Tribunal] did make.  He did not disobey it and did not proceed with an appeal against it.  Rather, he exercised a separate statutory power which was available to him and the exercise of which was directed towards the purpose for which the power was conferred, namely the removal from Australia of non-citizens who have committed serious crimes or are otherwise not of good character.”

McHUGH J:   But does this argument meet the argument for the applicant, which is that the Minister did not identify why the decision of the AAT was incorrect?

MS SYMON:   We say he does not have to, and we say that passage supports it, your Honour, and a reading of the section supports it.  Section 501A gives the Minister a discrete and separate power to act and it is conditioned on nothing more than the fact of the AAT decision.  The Minister does not have to decide that the AAT decision is flawed in any way.  He is given the power to act and make his own decision.

HAYNE J:   On national interest grounds for which the Minister is politically accountable.

MS SYMON:   We say that is true of section 501A(2), your Honour.  We say that the structure of section 501A(2) suggests that national interest is not to be given any greater weight or more profound consideration, if you like, than the other matters referred to in section 501A(2).  It is one of the matters of which the Minister has to be satisfied before he proceeds to the exercise of his discretion, but it does not take greater precedence than the other matters.

There are a number of other matters which the order nisi application raises.  We say, apart from the question of relevant consideration ‑ ‑ ‑

McHUGH J:   Well, Mr Hurley referred to the failure to take into account some matters.

MS SYMON:   Yes.  We say there is a short answer to that, if the Court pleases, and it lies in the statement of principle in Peko-Wallsend made by Justice Mason.  I will not take the Court to it, but ‑ ‑ ‑

McHUGH J:   No, we are familiar with it.

MS SYMON:   Yes, I thought you might be.  What the applicant here has failed to do is explain to the Court how any of the matters which he says were relevant are matters which the Minister was bound to take into account and unless the Minister was bound to take into account these matters, then they do not raise the ground.

The other matters, bad faith, abuse of power, irrationality, we say, if they are sufficient to ground jurisdictional error, which is still a question, none of the content of what the applicant has said is sufficient to come anywhere near the mark of raising any such matters, and the content of what is said really rehearses matters which are covered under other heads.  If the Court pleases.

McHUGH J:   Thank you, Ms Symon.  Yes, Mr Hurley.

MR HURLEY:   Your Honours, taking the matters which my learned friend dealt with, the length of the sentence is made relevant because the Minister keeps referring to it, and he refers to it repeatedly.  He does not simply refer to the warrant; he refers to the warrant and what he thinks are its consequences.  So, in our submission, that fact is made.  He takes that fact into account, being the consequence of the warrant, the warrant being for a combined consolidated sentence.

HAYNE J:   And at the time the statement is made and acted upon, that was or was not the effect of the warrant?

MR HURLEY:   We say it was not, your Honour.  The Italian authorities were in the very process of starting the system to ‑ ‑ ‑

HAYNE J:   In process of?

MR HURLEY:   In process of taking the 10-year-old sentences off.

HAYNE J:   Yes, but that process had not then completed.

MR HURLEY:   It had not then completed, but your Honour is aware of our other point that is made in the written submissions that there is no inquiry of the Italian authorities between 1996 and the date of the decision in October 2000.  Having been a flurry initially, there is no inquiry at all in the four years that follow.  So, to the extent that the Minister - we submit the fact is relevant because the Minister refers to it and refers to it repeatedly, the fact being the consequence of the warrant, that fact being in the process of being undone by the Italian authorities at the very time the Minister is seeking to rely on it.

Your Honours, my learned friend twice said that section 501A(2)(e) has no greater precedence than paragraphs (c) and (d) that precede it.  As your Honours observed in Re Patterson, paragraphs (c) and (d) are, in a case such as this, given.  In other words, the man fails the character test because he suffered a term of imprisonment of 12 months, which is (c), he cannot satisfy the Minister otherwise, which is (d), so the only issue is paragraph (e).  It is just a given, so the whole thing revolves and devolves down to the national interest.  Therefore, they must have must have greater precedence because (c) and (d) are mechanical.

Your Honours, the question of policy.  The policy the Minister applied, following from what I just said, was a policy that applied to section 501.  A general direction was made, as it suggests, for section 501, not for section 501A, and we submit that the Minister did apply the policy or he tried to apply the policy, he did blinker his view of it by applying the policy, it was not a policy that applied to section 501A but 501(1) and (2), and for that reason we repeat the submission in relation to national interest.  It becomes the critical question as to why a process mandated by Parliament of AAT review or a delegate’s decision, why that should be overturned where the Minister would not normally have the power to do it.

HAYNE J:   He is given statutory power to do it, is he not?

MR HURLEY:   Yes, your Honour, according to section 501A but not according to a policy that is generated for another provision, which is section 501(1) and (2).  So he has applied the 501(1) policy for the section 501A question and then failed, in our submission, to appreciate that, on our construction, it is the national interest which informs and motivates the entire decision.  It is not the threshold that he passes on the way in; it is the result achieved at the end.

The policy or the.….something and the Minister applied it or the Minister says here now that the matter has come to the High Court, the policy is meaningless.  The Minister wants to have it both ways.  Either it is a policy and all those Federal Court decisions are to some point, or it is not a policy because it is meaningless.  That question is one that we submit should be considered.

Your Honour Justice McHugh asked who was desperate.  Can I take your Honours to the AAT decision at page 516, point 25.  This part of the AAT decision was not in front of the Minister, but the AAT sets out the two paragraphs in Sergeant Bastin’s statement filed in the AAT on behalf of the Minister, the two paragraphs that concern the applicant.  The first one is that an informer, who the AAT subsequently did not put any weight on, is:

A informed me –

that is Sergeant Bastin –

that once MADAFFERI was out of the country he would come forward with information relating to MADAFERRI’S involvement in two unsolved murders that have been committed in the State of Victoria.

Your Honours, the comment of the AAT about people being excited about the applicant’s presence, we submit, has to be viewed in the context of this evidence, that the Minister chose to place before the AAT, that the Minister has not at all either affirmed or eschewed and it just exists in some ether, we submit, in the back of his mind, because he placed it before the AAT in May 1998 – that is at application book 135 – and the AAT has repeated it, it was not before the Minister.  The facts that were in Sergeant Bastin’s statements, we submit, form the decision under review and the reasons just simply do not refer to it.  It is there but the - so that the Minister accepted it or disagreed with it.

My friend says that section 501A is to be construed as though the AAT decision is simply a piece of paper that is on the way to authorise the respondent to make the decision.  We submit that construction simply makes a mockery of the whole process of merits review.  Justice Hayne observed that the Minister would be politically responsible.  Your Honour, we submit that the Court here can conclude the Minister chose not to make the man an excluded person in 1997 because the Minister would have had to have told Parliament that and he chose not to and he has waited until the law has changed and then he has exercised this power.  He does not have to tell Parliament about this decision, he does not have to tell anybody about this decision except the applicant and he is meant to give the applicant reasons, and that did not happen on this occasion.  So, as was expressed in the Palme transcript, the only accountability that the respondent has when he makes this decision now is to the courts and the political accountability is, with respect, theoretical and not practical.

The other point, your Honour, Teoh, put one way in the order nisi, we do seek to rely on it.  The point we made in the written submissions is that the Minister has made this decision.  The reasons for decision are of a level of abstraction and generality that means they are vacuous.

McHUGH J:   You did refer to clause 23.1, did you not?

MR HURLEY:   We did in the order nisi, your Honour, I believe at page 397.  But the Minister himself says that if he had applied his policy, then the interests of the children are a primary consideration.  The issue we say is raised with the reasons in paragraph 25 in the balancing exercise is that the existence of the children as a primary factor has evaporated.  They are simply one of the other considerations or, as the Minister so elegantly put it in one of his reasons, that the view that children should grow up with their parents is noted.  With respect, that view is one that we submit is applied in all the laws in this country.  Paragraph 20, your Honour, on page 656:

While in the normal course it is in the best interests of the child to be brought up in a stable household with both parents, I have balanced this view with the need to protect the Australian community from persons who commit serious offences.

We submit the dismissive use of the word “view” shows that this was not a decision – if these are the reasons for it, the decision does not do justice to the legitimate interests of the children in the family, which we submit Parliament intended to be given ‑ ‑ ‑

McHUGH J:   That is not the point, is it?  You cannot consider the merits here.  You have to make good a natural justice point, that the Minister did not take into account the Convention.  That paragraph indicates that he did.

MR HURLEY:   Well, he took into account a view, your Honour.  The point we – in answer to my friend’s point, we say that the Minister failed to

consider the circumstances of the family as a matter of reality.  What was going to happen?  The reasons given are at a level of abstraction, which means that that did not happen.  Therefore, whether it be put on the basis that the Convention has not been breached, a relevant matter has not been considered or it is an error of law because that is the law of the land, that generally families are to be supported, the error is made out.

To conclude, your Honours, we put before this Court Justice French’s comments as a single judge in the Federal Court about a decision that is unjustified.  We submit the observations of your Honours in S20 on Tuesday support that.  The gross error and the observation of Justice Kirby where he said that a decision is below the standard mandated, I think, by Parliament is the basis upon which we can say the decision is unjustified.  If your Honours please.

McHUGH J:   Despite the earnest arguments of Mr Hurley, we are of the view that an appeal from the decision of the Full Court of the Federal Court would enjoy insufficient prospects of success to warrant the grant of special leave.  On the application for orders nisi, constitutional writs and other relief, we are of the view that the grounds proposed have insufficient prospects of success to warrant the grant of an order nisi.  It is not arguable in our view that there was jurisdictional error on the grounds contended.

Accordingly, both applications are dismissed and must be dismissed with costs.

AT 12.31 PM THE MATTERS WERE CONCLUDED