Minister for Immigration and Border Protection & Anor v SZSSJ & Anor; Minister for Immigration and Border Protection & Ors v SZTZI

[2016] HCATrans 55

[2016] HCATrans 055

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S206 of 2015

B e t w e e n -

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Applicant

SECRETARY OF THE DEPARTMENT OF IMMIGRATION AND BORDER PROTECTION

Second Applicant

and

SZSSJ

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

Office of the Registry
  Sydney  No S207 of 2015

B e t w e e n -

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Applicant

SECRETARY OF THE DEPARTMENT OF IMMIGRATION AND BORDER PROTECTION

Second Applicant

KATHY BACKHOUSE, IMA PROTECTION NSW, DEPARTMENT OF IMMIGRATION AND BORDER PROTECTION

Third Applicant

and

SZTZI

Respondent

Applications for special leave to appeal

BELL J
GORDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 11 MARCH 2016, AT 12.07 PM

Copyright in the High Court of Australia

____________________

MR S.B. LLOYD, SC:   May it please the Court, I appear in both matters for the Minister, with MS J.E. DAVIDSON.  (instructed by Australian Government Solicitor)

MS N.L. SHARP:   May it please the Court, I appear for the first respondent in the matter of SZSSJ, with my learned friend, MR A.M. HOCHROTH.  (instructed by the applicant)

MR M.J. FINNANE, QC:   If the Court pleases, I appear for SZTZI, with my learned friends, MR S.E.J. PRINCE and MR P.W. BODISCO.  (instructed by Michaela Byers)

BELL J:   Mr Lloyd, each application raises essentially the same matters, bar there is one point of distinction, is that so?  Were you proposing to address each ‑ ‑ ‑

MR LLOYD:   All together.

BELL J:   All together, yes, yes.

MR LLOYD:   If that is convenient.

BELL J:   I think that is convenient.  Any difficulty with that, Ms Sharp and Mr Finnane?

MR FINNANE:   No, your Honour.

BELL J:   Yes.  Very well.

MR LLOYD:   In these matters, in order for the Minister to succeed on any appeal, one of three things would need to be established.  Either one, that there was error in the court in relation to the jurisdiction of the circuit court, if that was made out, obviously the appeals would be successful.  Secondly, if the court below erred in holding that procedural fairness obligations were attracted, and there are three bases upon which one could get to there.  The third way that my clients could succeed is if the court below erred in its understanding of the content of procedural fairness.  I will deal, first of all, with the jurisdictional point.  In relation to this point, I should note that we do place some reliance or draw the Court’s attention to the affidavit, that is using the SZSSJ book, is on page 127 and paragraph 5 ‑ ‑ ‑

BELL J:   This is Ms Cassidy’s affidavit concerning the number of proceedings that might be affected.

MR LLOYD:   Yes, and focusing upon paragraph 5, which is the only paragraph I will rely upon, is that there are 86 proceedings that are currently in abeyance while this matter is being heard, either all or at least overwhelmingly in the Federal Circuit Court.  They are all, on my instructions, analogous to the SZTZI situation where there has been an ITOA carried out and a refusal.  They are not in the SZSSJ situation of the ITOA being incomplete.

GORDON J:   Does that mean that in that latter category that case is on its own?

MR LLOYD:   Yes.  Now, in that respect, the jurisdictional point in the court below, my client relied upon a line of cases starting with the Full Federal Court decision in Ozmanian, then going to a decision of Justice Moore in S1083, which this Court refused special leave on, and then a decision of Justice Lindgren in Raikua.  All of those are cases in which an officer of the Department was making an assessment on behalf of the Minister in relation to section 417 and the court held that the court – first of all, the Federal Court and then when the law changed the circuit court ‑ did not have jurisdiction in respect of such matters.  Now, those cases were all put to the court below, the court below did not refer to or consider any of the cases going to the jurisdictional point.

Now, it is important to note that the court does address the jurisdictional point in relation to the matter of SZSSJ, and I draw the Court’s attention to where that is done.  It begins on page 57 of the SZSSJ book, paragraphs 60 through 63 really just set out the legislation.  Paragraph 64 indicates three reasons but only provides two reasons for why the point is not a good one.  The first one is that an application for an injunction, which was an injunction to prevent removal, did not relate to the decision not to exercise the power, and then the second point is that there had, in any event, not been any decision yet.

Now, the point we make is in SZTZI neither of those things are true.  So, putting aside whether they are good or bad points of distinction in relation to SZSSJ, in SZTZI there was a decision made on the ITOA and there was not an application for an injunction to prevent removal that was pressed.  So those two points of distinction are absent.  Then apart from that, you have absolutely nothing in the judgment which addresses the jurisdictional point.  So, in each of these 86 matters, my client is faced with a situation where it has what it thinks is binding authority saying that the Federal Circuit Court does not have jurisdiction, it has this decision of this Court which is inconsistent with that result but with no actual explanation.  The Court did not overrule the earlier cases, and we say that that in itself is enough for SZTZI to get a grant of special leave.

BELL J:   Yes.

MR LLOYD:   In relation to SZSSJ, no doubt it will be put against us, and is put against us, that their case is different because they have not yet made a decision.  In the original case that I have referred to, Ozmanian, Justice Sackville, with whom Justices Jenkinson and Kiefel agreed, noted that it would be an incongruous result if the Minister’s decision is not subject to review in that court but people assisting the Minister’s decision is.

BELL J:   Yes.

MR LLOYD:   So we say that that is not even a worthwhile point of distinction, so we would say that the court below erred in SZSSJ as well. 

BELL J:   Yes.

MR LLOYD:   That is all I want to say about jurisdiction.  There are three bases upon which natural justice can arise, if I first introduce them.  The first is there is a case called SZQRB in which the Full Federal Court held that in certain circumstances where an ITOA process was being undertaken it had to be undertaken lawfully and fairly before the person could be removed.  That is the first issue, and we said that that decision was overturned by – not overturned but, in effect, overruled by the Parliament in enacting section 197C where in the extrinsic material they said the intention was that that would no longer be good law and it was done in an Act called Resolving the Asylum Legacy Caseload and the construction of the court below is to construe it so it does not apply at all to the Asylum Legacy Caseload.  So that is the first issue.  I will return to that.

The second way that procedural fairness is said to arise is because the officers undertaking the ITOA are doing it, as it were, in consultation or in conjunction with a decision of the Minister to have started the process of considering the exercise of one of his intervention powers, and by that I mean 417, 48B, 195A, and they relied on M61.  My client relied upon S10 which actually dealt with those powers – M61 dealt with 46A – and we said that there is binding authority that says that the Act has a necessary intendment to exclude procedural fairness and the court distinguished that and we say wrongly.

Then the third point is – in correspondent from his Department, there was representations that procedural fairness would be accorded in the ITOA process, and so their Honours said, relying upon NAFF and one or two other cases, that the making of a statement can generate an obligation to give procedural fairness.  In short, our response to that is that all of the cases that the court relies upon are not cases at all where it was about generating an obligation to accord procedural fairness.  It was affecting the content of a pre‑existing obligation to give procedural fairness. 

This was a unique situation which the court below did not appear to appreciate that on this assumption if it got to this point – so that you only really get to this point if we win on S10, but if we win on the S10 point, then the situation is that the legislature has excluded procedural fairness.  So the question is in circumstances where through words of necessary intendment the legislature has excluded procedural fairness and does a policy document or a letter that says we will accord procedural fairness give rise to binding procedural fairness obligations which raises again, perhaps more astutely, this issue of where procedural fairness comes from.  If it does not come from the statute, if it comes from the common law, what is the impact of the law having excluded it?  We say all of that is worthy of a grant of special leave.

BELL J:   Yes.

MR LLOYD:   If I can just add in relation to the first of those points, which is the section 197C issue.  Apart from a construction which means that the provision wholly fails to achieve what was said to be its purpose, we say there are errors in the way section 7(2) is applied.  The first is we say that SZQRB was a case in which the process of removal had begun and the question of the unlawfulness of removal was done or assessed, at a time, and to quote the court, “when it is sought to exercise the power of removal”.  The Full Court had said that a right accrues ‑ ‑ ‑

BELL J:   There was an accrued right ‑ ‑ ‑

MR LLOYD:   ‑ ‑ ‑ from the point in time someone first claims to be owed a protection obligation which could be years before any issue of removal ever arises, it is accrued.  Now, we say that is wrong as a question of principle.  We then say even if it could be right, so assuming against us that there could be an accrued right, the accrued right could not be more than a right not to be removed unlawfully, and if Parliament in the meantime changes the law about what is lawful or unlawful, then the accrued right naturally is adjusted by that.

Our third point is, we say, that there is in any event ‑ so this is our further fall‑back position ‑ sufficient contrary intention in relation to the application of section 7(2).  Apart from the name of the Act, which gives an indication of purpose, section 197C itself expressly states that it is to operate “irrespective of whether there has been” one of these assessments.  So it is reflecting back into the past and the transitional provision says that it applies to removals on or after 16 December.

BELL J:   And that is the provision that was not noted, I think, in the reasons of the court below, is that ‑ ‑ ‑

MR LLOYD:   I think that is so.

GORDON J:   Well, they identified that it came into effect on the 16th, did they not?

MR LLOYD:   That is so.  No particular attention was given to the terms of the transitional provision is my recollection.  So we say that it is important in relation to 7(2) and important in relation to all the people who potentially have these ongoing SZQRB rights to not be removed.  In relation to the M61, S10 point, this is dealt with by the court below principally at page 60.  After referring to M61, and it is not in dispute that in M61 as a fact the Court had found that the Minister had entered into the process of considering, then the issue was how to deal with the perceived tension between M61 and S10. 

Now, in paragraph 71, the Court says that the decision of the Chief Justice and Justice Kiefel can be explained by reference to the fact that a similar step was not taken in the S10 situation and their Honours in the opening words to 71 say that that means there was “no right or interest”, in effect, which gave rise to procedural fairness obligations.  Now, in the court below their Honours say that the plurality judgment, in effect, in 72 and 73 did the same thing.  We say that is wrong.  At paragraph 70, the plurality rejected the idea that these people would not have had a sufficient interest and rather construed the Act as expressly excluding procedural fairness.

BELL J:   So the court below says it is a factual question, you say it is a question of the construction of the provision.

MR LLOYD:   Indeed, and certainly we say that the factual question that they treated as “critical” at the top of page 62, it is not critical in terms of distinguishing between when the M61 outcome and the S10 outcome applies, and we say that this Court should give a different and we would say better explanation of how M61 and S10 sit together.  In relation to the third issue in relation to procedural fairness arising, I think I have probably said all that I need to say in that. 

We say the cases that are relied upon, and they are mentioned in paragraphs 90 to 92, are cases at least with sort of a modern understanding, are all cases where procedural fairness would have been understood to exist and the statements or conduct adjusted the content of procedural fairness.  None of them certainly are cases where it had been held and determined that procedural fairness had been specifically excluded by statute, and yet conduct gave rise to an obligation.  We are not saying that it is unarguable that that might be an outcome but it is an important step that this Court should consider.

BELL J:   Yes.

MR LLOYD:   That then brings me to the content of procedural fairness issues.  There are probably many of those but I will address only two.  There is the notion that the Department was obliged to reveal its full hand or the full circumstances relating to the data breach which at the very least includes the release of the unabridged KPMG report.  Now, the court made it clear that that obligation did not arise because their Honours were satisfied that it contained adverse credible relevant significance, nor even that it contained corroborative material that might have helped them, but it was ‑ ‑ ‑

BELL J:   Their Honours had in mind that all of this flowed from the Department’s own default and some concept of conflict of interest feeding into this area.

MR LLOYD:   That is so, and what we say about that is that is again a novel proposition.  Their Honours, to be fair to them, do not cite any authority in support of that notion.  We say that it is – there is certainly not a factual basis to suggest that any of the people undertaking the ITOA assessments were in any way involved with or considered to be blameworthy in respect of the data breach.

So we say that that is a matter as to whether or not a conflict existed and, if it did, what it would give rise to in respect of an actual person undertaking an actual statutory function is an important matter.  Related to that is the rejection of the argument which appears at paragraph 122 and 123.  The Minister had argued that in a sense it was all by the by because the claimants having known what is the nature of their private information that was released were told that ‑ or the position was that an assumption in their favour would be made that the authorities of their countries may have accessed it. 

So they would not have to prove it, they would not have to show it was likely, they would not have to show it was a real chance, it would proceed on the basis that it may have been accessed.  We said that was, in any event, a favourable outcome on that issue and the court in 123, with respect, I find it difficult to understand the reasoning that they say that that somehow was a negative and guaranteed failure when it was – that is how they put it in the last sentence – and that “It is not fair” to have done that.  We say that it was, in effect, something which relieved them of the burden of having to show anyone who they feared – if the fact that they were in detention would lead to them being refugees ‑ ‑ ‑

BELL J:   Is not the point that the court is there making that as high as the Minister put it, the assessment would be made on the basis that the information may have been accessed.  The question for the reviewer would

be, as a necessary and foreseeable consequences, did there exist a real risk of significant harm?  Now, if you can show by reference to the material that it has been accessed by the security agency of a state to which you are about to be returned, you might persuade the reviewer you are over that hurdle, whereas if the reviewer understands there may have been someone in a position of authority in your home state, a different view might be taken.  Is that not all that is being said in 123, and if it is, is there anything wrong with that?

MR LLOYD:   If that is all that is being said, we would say there is something wrong with it, which is when the real chance test is a 10 per cent test there is no way of reading the words that their authorities may have accessed it as suggesting that the prospect is less than 10 per cent.  It is an assumption in their favour.  If they want to say “I will be a refugee if the security services of my country accessed it” then this ticks that box.  The decision‑maker is to proceed on the basis that they may have accessed it, so they will not be rejected on the basis that it is unlikely or there is no real chance that they accessed it.  It was something which was done entirely in their favour and we say that ‑ ‑ ‑

GORDON J:   I think the problem, Mr Lloyd, is that the concession – if it is a concession – all the court is saying is it just did not go far enough, i.e. the concession was made that they should approach it on the basis that there was access.  The second question was, well, what is the consequence of that, and all they are saying in that second paragraph is we are going to assume that the consequence was great, i.e. 10 per cent.  If you look at the direction given to the reviewers, it does not carry the second limb you have just put to us, that is all the court is saying, is it not?

MR LLOYD:   Well, that is so.  I mean, in the end, this point is not one of our grounds of appeal.  I only pointed it out because we thought that that was a separate additional answer to the earlier point that is our ground which relates to the conflict point.  I sense the Court does not see it the way we do, but I note the time so I will ‑ ‑ ‑

BELL J:   Thank you, Mr Lloyd.  Now, is it proposed that we will deal with them in list order or, Mr Finnane and Ms Sharp, do you have a different order proposed?

MS SHARP:   Your Honour, I have had some discussions with Mr Finnane.  It was proposed that I would go first ‑ ‑ ‑

BELL J:   Yes, very well.

MS SHARP:   ‑ ‑ ‑ and Mr Finnane would make any supplementary submissions that are necessary.

BELL J:   Yes.

MS SHARP:   Your Honours, this matter arises out of an extraordinary factual situation where the applicant has wrongly published personal identifying data on the internet of some 9,000 asylum seekers which gave rise to a prospect that they could be made refugees sur place.  The applicants then invited the detainees to explain to them how the so‑called data breach could have personally affected them without providing them full details of what the data breach actually involved.

Your Honours, special leave ought not be granted in this case because the appeal enjoys insufficient prospects of success.  This was a unanimous Full Court decision.  The court held that the obligation to afford procedural fairness attached on three separate and independent bases.  To succeed so far as the obligation is concerned, the applicants would have to show that the Full Court was incorrect on all three counts.

Your Honours, so far as the content of the obligation is concerned, the Full Court – again the unanimous Full Court – found against the applicants in two separate respects and, again, to succeed the applicants would need to show that in both of those respects the Full Court was wrong.  I will come back to the jurisdictional point so far as my client is concerned.  It is not a particularly powerful point in respect of our particular client.  Your Honours, one of the problems in this case was the fact that the Minister was so opaque about what was actually being done.  In considering what the implications of the data breach may have been for the first respondent, what was the normal process and what decision was being made?

In fact, it has been ascertained that the process had a dual function in the case of the first respondent; firstly, to consider non‑refoulement obligations in the context of a removal pursuant to section 198(6), and secondly, to assist the Minister to consider the exercise of his personal dispensing powers.  The fact that there was this dual function occurring is what was referred to in the M61 case as the accommodation, and that is the accommodation between taking steps to remove and at the same time, in the second stage of the dispensing powers, to see whether those powers should be exercised.

What, your Honours, we wish to emphasise in this case is that there was a question about whether the first respondent’s detention was lawful in the circumstances of this case.  That lawfulness of detention could only be established if it was accepted that the normal process that was being followed was the Minister actually considering the exercise of one of his personal dispensing powers.

BELL J:   Yes.

MS SHARP:   That is the second step in the two stage M61 stage.  That case, M61, of course established that there were two discrete steps under the personal dispensing power there in issue, being whether to consider the exercise of the power and then exercising the power.  It is important, your Honour, that in this case the Full Court found as a fact, and it is not challenged on appeal, that what was happening with respect to the first respondent was happening within the second step.  That is the only way ‑ ‑ ‑

BELL J:   The process had been embarked upon and that is not challenged.

MS SHARP:   Yes.  That is the only way his detention could have been lawful, your Honours, and that is an important point for the first respondent in this case.  With that in mind, if it is convenient to your Honours, may I address ground 3 first of all?  That is the M16 versus the S10 decision. 

BELL J:   Yes.

MS SHARP:   Contrary to my learned friend’s submissions, we say that the Full Court did correctly hold that this case is on all fours with M61 and it was to be distinguished from S10.  At 68, if I could take your Honours to paragraph 68 at application book, page 59, their Honours correctly identified that M61 governed the circumstances of this case.  With respect to my learned friends, they have overstated the ratio of S10, and can I take you to the clear indication of that overstatement?  If I could take your Honours to the applicant’s written submissions in‑chief at paragraph 22 which your Honours will find at application book 98.

Now, there your Honours will see that the applicants submit that the ratio of S10 is that those dispensing powers “are not conditioned on observance of the principles of procedural fairness”.  That puts the matter too widely, with respect.  S10 is properly to be understood as standing for the proposition that so far as the first decision called for in the exercise of the dispensing powers is concerned, there is a legislative intention to exclude procedural fairness.  That is the ratio of S10.  The ratio of M61 which ‑ ‑ ‑

GORDON J:   This deals with the second limb.

MS SHARP:   Yes, precisely, your Honour.  So that is where, with respect ‑ ‑ ‑

BELL J:   The point that the Minister takes against you on that is the suggestion that the analysis – your analysis which finds support in the reasons of the Chief Justice and Justice Kiefel, the Minister contends is less clear in the plurality reasons and he says that in itself might be thought to be a good reason for the grant.

MS SHARP:   Yes, your Honour.  While it is not as abundantly clear as it is in respect of the joint judgment of the Chief Justice and Justice Kiefel, it is sufficiently clear, your Honours, and could I take you directly to that point.  Looking at the plurality’s judgment in S10, it is important to understand, in our respectful submission, that the plurality identified a particular interest that was affected in step 1 of the decision, and can I take your Honours to that?  Do your Honours have M61 handy? 

In fact, I do not need to take your Honours.  What the plurality said was that the interest was a measure of relaxation in the application of the visa system and that was the interest that was identified as prima facie attracting an obligation of procedural fairness, but their Honours then went on to say, well, at that stage 1, at that first decision, they discerned a legislative intention to exclude because of the non‑compellability of the power and the like.  That may be contrasted with the situation in M61 which identified a very different interest being affected at the second stage or the second decision to be called upon, and that was the interest of prolonging the asylum seekers’ time in detention.

BELL J:   Detention, yes.

MS SHARP:   And in the context of that second interest, the joint judgment in S10 has nothing to say, and nothing to say about whether there was an intention to exclude the obligation of procedural fairness.  That is made clear, in our submission, in the very particular language that was used in the joint judgment at S10 at page 668, paragraph 100.  Their Honours said:

Upon their proper construction and in their application to the present cases, the dispensing provisions are not conditioned on observance of the principles of procedural fairness.

We place particular weight on those words “and in their application to the present cases”.  In view of the discussion that the joint judgment engaged in prior to that about what the particular interest was that it attracted the obligation of procedural fairness, it was clear enough in that context that their Honours were stating a conclusion as to statutory construction that applied in the context of the step 1 decision and not the step 2 decision.

So, your Honours, that is our answer to the so‑called M61, S10 conundrum.  The cases can be happily reconciled and were happily reconciled by the Full Court.  If, however, the Court were against us on that argument, there is nevertheless the fact that the Full Court found that there was a separate basis for attracting the obligation of procedural fairness, and that was what I might call the argument that relates to section 197C.  We say that the Full Court was correct to find that section 197C did not apply in the circumstances of this case.  It was only enacted, your Honours, on 16 December 2014 and did not have a retrospective effect, in our submission.  That conclusion follows from an orthodox application, your Honours, of section 7(2) of the Acts Interpretation Act. 

Now, my learned friend has challenged the proposition that section 7(2) of the Acts Interpretation Act applies in this case and say there was no accrued right to which section 7(2) attached.  Can I say this in response to that proposition?  That argument turns upon the premise that the lawfulness of removal only falls to be determined at the time of removal.  That is the wrong premise.  At the time of the data breach, the first respondent was told that the implications of that data breach would be personally assessed for him. 

At that time – this is back in March 2014 – that meant that his non‑refoulement obligations had to be considered and that is what falls from the Full Court’s decision in SZQRB.  And what also fell from that case was, in considering those non‑refoulement obligations, the decision‑maker was obliged to accord procedural fairness.  That right to accord procedural fairness accrued at the time the commencement of the consideration of non‑refoulement obligations occurred and that is the right to which section 7(2) of the Acts Interpretation Act attaches. 

So that is the first answer to my friend’s objection.  It is really the second answer to my friend’s objection as well which is based upon item 27 of Schedule 5 of the amending Act which said that section 197C is to apply when it was enacted.  That really just restates the ordinary position and diverts attention back to the question of whether there is an accrued right.

BELL J:   And what of the Minister’s submission that the right, putting to one side his temporal argument, is a right not to be removed unlawfully.

MS SHARP:   Yes.  Your Honour, there the answer is that the right that sat underneath that that was activated relevantly was the right to have a procedurally fair process in the consideration of non‑refoulement obligations.  That right arose, crystallised at the very time consideration of that obligation commenced, and according to the letter from the Secretary on 12 March 2014, the implications for the first respondent were being considered according to normal processes from that time.  So, your Honours – I beg your pardon, your Honour.

BELL J:   I was just going to raise with you, Ms Sharp, that accepting the force of the submissions that you put, the Minister points to the large number of proceedings where like issues are raised and to the significance of the three principal issues that he seeks to agitate.

MS SHARP:   Can I answer that this way? 

BELL J:   Yes.

MS SHARP:   My client stands in somewhat of a different position because the ITOA process is not yet complete with respect to my client, but the more fundamental point, your Honours, is this.  We say that there are insufficient prospects of success for the applicants in establishing that there was no obligation of procedural fairness because of M61, and further, because section 197C did not have the effect that my friend say they did.  So we say if this appeal goes up, it will fail at that point.  It may be an interesting matter to test as a question of principle what the Full Court found as the third independent ground for attaching an obligation of procedural fairness and the ‑ ‑ ‑

GORDON J:   Your submission is you never get to it.

MS SHARP:   Precisely, your Honour, we never get to it.  But, in addition to that, it must be recalled that the first respondent sits in detention.  He has been in detention for two years since this process commenced.  He was told on 12 March 2014 that the implications of this data breach would be assessed in him.  It has been accepted by the applicants that the Minister is now in the second stage of the exercise of the personal dispensing powers and it is that consideration which continues to prolong my client’s detention.

In the circumstances of the justice in his individual case, it is not, in our respectful submission, an appropriate ground of leave to test a point of principle when there are two very good reasons why the obligation of procedural fairness does attach here.  Your Honours, just very quickly on the jurisdiction point.

BELL J:   Yes.

MS SHARP:   Again, my client stands in a somewhat different position because the ITOA process is not complete.  In addition, we say that the claim for injunctive relief, so far as it is related to the removal, is not affected by section 474(7)(a), but even so far as that relates to the personal dispensing powers, it is important simply to look at the text of the provision.  It attaches only where a decision has been made by the Minister not to do something, and here the first relevant decision has been to do something and we have accepted we are in that second stage now where no

decision has been made, so it cannot be said that there is a decision not to do something.

That is also the answer to the three Federal Court authorities that my friend referred to.  To take Raikua as one example, that was a situation where by the issue of ministerial guidelines, the Minister had been taken as making a decision not to consider the exercise of his personal dispensing powers.  That is why those decisions fall within the language of section 474(7)(a) and ours do not.  Your Honours, I am mindful of the time.  May I say one or two things just quickly about the content of the obligation?  I could say this only.  What procedural fairness requires will depend very much on the circumstances of the case.  This is a unique and rare case and that was expressly acknowledged by the court.  If it pleases the Court.

BELL J:   Thank you, Ms Sharp.  Mr Finnane.

MR FINNANE:   Your Honours, we accept, with respect, all the submissions that have been put on behalf of SZSSJ.  Our case is basically similar except that the ITOA process had completed, however the Minister had not made a decision in any way whatsoever.  We did seek an injunction against removal before the matter commenced in the circuit court.  That was changed to an injunction against the ITOA process.

BELL J:   Yes.

MR FINNANE:   The judge at the court regarded that as colourable.  Their Honours in the Federal Court did not agree with him and considered that there was jurisdiction.  In every other respect, everything said by Ms Sharp is something we would want to say and I do not want to say it again. 

BELL J:   Thank you.

MR FINNANE:   The only other thing I did want to say because Ms Sharp did not say it is we would say if leave were to be granted, although it is appearing in her submissions, the applicant should get leave on the basis that it pays the costs that were awarded against it in the court below and the costs of the appeal.

BELL J:   Yes.  Thank you, Mr Finnane.  Yes, we do not need to hear from you in reply, Mr Lloyd.  There will be a grant of special leave in each of these matters.  What is the likely estimate, Mr Lloyd?

MR LLOYD:   I would have thought half day each, one day should cover it.

BELL J:   Do you agree with that, Ms Sharp and Mr Finnane?

MS SHARP:   Yes, your Honour.

MR FINNANE:   We agree, your Honour.

MR LLOYD:   Could I indicate to the Court that my client has given me instructions that he will not seek to disturb the costs orders in the court below and he will pay sort of reasonable party/party costs.

BELL J:   Yes.  That is noted and the grant is on the understanding that the Minister will not seek to interfere with the costs orders made below; if your instructors would get the list of standard directions, and I remind the parties of the need to adhere to the timetable in that regard.

AT 12.52 PM THE MATTER WAS CONCLUDED