Minister for Immigration and Citizenship v SZQRB

[2013] HCATrans 323

[2013] HCATrans 323

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne       No M51 of 2013

B e t w e e n -

MINISTER FOR IMMIGRATION AND CITIZENSHIP

Applicant

and

SZQRB

Respondent

Application for special leave to appeal

CRENNAN J
KEANE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 13 DECEMBER 2013, AT 11.59 AM

Copyright in the High Court of Australia

MR S.P. DONAGHUE, SC:   May it please your Honours, I appear with MR N.M. WOOD for the applicant.  (instructed by Australian Government Solicitor)

MR R. MERKEL, QC:   If your Honours please, I appear with my learned friend, MR C.L. LENEHAN, for the respondent.  (instructed by Russell Kennedy Pty Ltd)

MR DONAGHUE:   Your Honours, in our submission, there are three substantive issues that each warrant the grant of special leave in this application.  They are, first, that the Full Federal Court wrongly equated the test under section 36(2)(aa) of the Act which is the provision commonly referred to as the complementary protection provision, with the test that would be asked in a traditional refugee application under 36(2)(a), despite important differences between the statutory text and the surrounding text of those provisions.

The second issue is that the Full Court wrongly equated that same visa criteria, the complementary protection criteria, with the content of the applicable limit on the removal power under 198 of the Act.  The third issue is that the Full Court incorrectly held that there was a duty to put all country information upon which the Department might rely, apparently even extending to favourable country information, and that that, we submit, is an error of principle.  Each of those three questions, your Honours, are issues of significant and practical importance in the administration of the Act.

In terms of the first of the issues, the complementary protection criteria, this Court has never had occasion to look at that criteria or to examine its operation, and the decision in respect of which we seek special leave is the only Full Court decision that directly addresses the content of the criteria.  It does so, with respect to their Honours, with very little detailed analysis of the operation of the provision and in circumstances where the court did not hear any argument from the Minister on the question, for reasons I will come to in just a moment.

The country information question is a question that arises in virtually every decision that is directed towards the possible exercise of the power under section 46A and so is also an issue of significant practical importance.

CRENNAN J:   Just before you say more, in relation to the application for special leave to appeal and your identification of the three issues which would support a grant of special leave, are you pressing all the grounds in that application?

MR DONAGHUE:   Yes, your Honour, I am, but some of them, particularly the procedural fairness ground with respect to the Minister, is principally relevant by way of an explanation as to how we came to be where we are now, with some decisions on points that have not been addressed.  We do maintain that the Minister was denied procedural fairness, although very understandably given the way that things evolved in the court below.  So it is a ground of appeal but I do not invite your Honours ‑ ‑ ‑

KEANE J:   It is more an attempt to pre-empt an argument against you, is it?

MR DONAGHUE:   Which has come, yes, it is.  So we submit that it was an error, but we do not submit that that error in itself would warrant the grant of special leave and so I am focusing my submissions on the points of wider significance. 

CRENNAN J:   That assists, thank you.

MR DONAGHUE:   Your Honours, the reason that the court did not hear argument from the Minister on the issues I have addressed is easy to discern when your Honours have regard to the only decision that was identified in the application for relief.  Your Honours will find that decision at page 234 of the application book.  This is the decision record of the Minister’s reasons.  Your Honours will see that it is dated 21 September 2012, which is relevant when we come to the application in a moment.

CRENNAN J:   Sorry, would you mind giving me the page number again?

MR DONAGHUE:   It is 234, your Honour.

CRENNAN J:   Thank you.

MR DONAGHUE:   We submit simply as a matter of the construction of this document, it records a single decision made by the Minister and the way that the document should be read is that the Minister expresses an opinion or a view in the middle of the page in the paragraph beginning “I think”.  So the Minister thinks that the return of the applicant to Afghanistan is consistent with international obligations under the various identified treaties, but he then says “whether or not that view”, which must be the view in the previous paragraph, “is correct, and irrespective of” the three numbered paragraphs, specifically including “whether or not any legal or factual error was made” in the International Obligation Treaties Assessment, the Minister had:

decided not to consider, or not to further consider, the exercise of any of –

his powers.  Now, the main issue in debate in the Full Court is whether the Minister was correct in understanding that to be a lawful way to approach the exercise of his non‑compellable powers and that was an issue of hot debate in the Full Court below, and the Minister won on that point.  But, having fought that issue, what the Minister did not do was say, “If I am wrong about the express basis upon which I have made my decision, let’s look at the question of whether there was a legal or factual error in the ITOA”, because to argue the case in that way would have been inconsistent with the express basis upon which the Minister had purported to exercise his ‑ ‑ ‑

CRENNAN J:   Well, counsel often argue cases on more than one basis and they are not necessarily consistent, are they, Mr Donaghue?

MR DONAGHUE:   That is so, your Honour, but here we won on the basis upon which we argued, so there was not any need to address an alternative basis upon which the Minister could have sought to succeed.  But what happened is that the Minister defended the decision that was challenged, but the Full Court said, “But we think that there were some errors so we’ll go on to discuss those other errors even though they were errors raised in the case only as a basis for attacking a decision that had already been successfully defended on other grounds”. 

So the Minister was left in a position where the choice that was made about the conduct of the case was vindicated, but no opportunity was available to address all of these issues that are now significant issues in the administration of the Act.

CRENNAN J:   Was there not an opportunity on the second day of the hearing in relation to addressing these issues?  In other words, notice was given in relation to the possibility of relevance of these issues.  I would have thought, notice having been given, however much one might feel caught short, there are always opportunities, are there not, to address the court, seek some time, proffer written submissions, whatever is necessary to address an alternative argument.

MR DONAGHUE:   Your Honour, can I answer that in a couple of different ways, because that is put squarely against us.  What happened near the very end of the hearing is that Ms Mortimer made some submissions about the effect of this Court’s decision in M70 in identifying implied limit on 198 of the Act.  I cannot emphasise strongly enough, your Honours, we accepted the existence of that limit.  The existence of that limit was not a matter in dispute between us.  But the question is what its significance was for the conduct of the case that was being argued.

The way that Ms Mortimer, who was then appearing for the applicant, sought to use it was that she advanced an argument – and if your Honours could turn up the relief that was sought, this might help make the point I am making.  It is on page 39 of the application book.  The argument was advanced as an argument to justify the grant of an injunction of the kind identified in paragraph 7 on pages 38 and 39. 

That is important.  This document that your Honours are looking at was handed up on the final day of the hearing, there having been an evolving claim for an injunction over the course of the case, but this is where we ended up.  This was the injunction that was sought.  There was never a ground added to the application to explain the basis upon which an injunction was justified, but your Honours can see from the terms of the injunction itself how it was put, because those Roman numbered paragraphs identified, particularly in paragraph i), that what Ms Mortimer contended was that you needed to have made a valid decision in the exercise of one of the Minister’s personal non‑compellable powers before the removal power was available.  That was her argument.

So the way that the injunction issue came into the case was she said, “I am attacking that decision of the Minister” that I have shown your Honours, “and if I am right in that attack on the decision of the Minister, then I am entitled to an injunction because the removal power only arises if I have made a valid decision” - if the Minister has made a valid decision under these powers.  Because the attack on the Minister’s decision failed, that injunction could not be granted and the Full Court expressly held that an injunction in that form would have been inappropriate.  But having accepted that – so we defended the injunction that was sought against us ‑ ‑ ‑

CRENNAN J:   Declaration.

MR DONAGHUE:   Declaration about the ITOA, but injunction of a completely different kind that went directly to the limit on 198 that we had always accepted was there, which was not the limit that Ms Mortimer was putting against us in the case.  So when the issue did arise near the end of the hearing, it arose in a form that we had already met, because we said, well, we have defended the decision, we think we have defended the Minister’s decision, therefore you cannot get the injunction you are after.

CRENNAN J:   Was there not some jurisdictional argument about the injunction along the lines you cannot seek permanent relief because this is a removed cause and the originating process only sought interlocutory relief?

MR DONAGHUE:   That was not quite how it was put, your Honour.  Yes, there was a jurisdictional argument and the way that we put it was this.  Do your Honours have – you should have in a folder we provided, if you do not have the whole Act, section 476A of the Act.  Your Honours will be familiar with the general scheme of Part 8 which is the jurisdiction of this Court under 75(v) is conferred in toto on the Federal Circuit Court subject to specific exceptions in 476(2).  The Federal Court, on the other hand, has very specifically limited jurisdiction in migration matters.  It is identified in 476A and the only relevant paragraph is (a).

CRENNAN J:   I have to say I do not have that copy in this set of papers.

MR DONAGHUE:   I am sorry, your Honour.  Does your Honour have a folder of materials that we provided?  There should be behind tab 1 some extracts from the Act which will include 476.

CRENNAN J:   I have now found it, thank you.

MR DONAGHUE:   Thank you, your Honour.  If your Honour has found 476?

CRENNAN J:   Yes, thank you.

MR DONAGHUE:   So the Federal Court’s jurisdiction under the scheme of Part 8 of the Act is limited to a very discrete category of cases.  Paragraphs (b) and (c) are character cancellation decisions basically; (d) is effectively meaningless because of section 483 which means that there can be no appeal of that kind.  So really (a) is relevantly the only possibly relevant paragraph and (a) speaks of “the Federal Magistrates Court” having transferred “a proceeding pending in that court in relation to the decision”, the decision being the migration decision identified in the chapeau. 

So for the Federal Court to have jurisdiction, there has to have been a proceeding pending in the Federal Magistrates Court in relation to a decision.  What was that decision?  Well, Ms Mortimer makes it easy for us to identify that because in the argument about this topic she said expressly –and this is at page 245 of the book, and this was resisting our jurisdictional point, this submission.  It is in the middle of page 245 at line 22:

And the proceeding in issue is a proceeding about the Minister’s decision on 21 September 2012.

That is the one‑page document I have showed you:

That is what is transferred.

Now, our point was you can transfer that proceeding.  Any relief that logically flows from the invalidation of that proceeding, no problem with the court granting that.  So if an injunction had logically flowed from the invalidation of that decision, the court would have had jurisdiction to grant an injunction and that is why Ms Mortimer framed the final relief in the form that I have taken your Honours to. 

But removal under 198 is a different migration decision.  There are many cases that support that.  It is a different exercise of power under a different provision of the Act and the Federal Court simply did not have jurisdiction in relation to it because there had never been a proceeding about the 198 decision that had been transferred to the Federal Court.

So the Full Court, with respect - and again this was very much a moving target, this case; it evolved constantly.  But we said when the point was raised you do not have jurisdiction in relation to this.  But the Full Court understood that as a submission about the relief that could be granted, when it was actually a submission that there are two different migration decisions in play and you have got jurisdiction over one and you do not have jurisdiction over the other.  So that was why we – now, the way that our friends seek to answer that is ‑ ‑ ‑

CRENNAN J:   Could they have read that as picking up the decisions referred to in the Minister’s decision – the page number escapes me now – but to which you referred us.

MR DONAGHUE:   But none of them were removal decisions either, your Honour.

CRENNAN J:   No.

MR DONAGHUE:   There was no decision under 198 and the other issue there, your Honour, is that those particular decisions – the IMR recommendation and the ITOA – were held by a Full Court including your Honour Justice Keane when a member of the Federal Court in SZQDZ not to be migration decisions at all. 

So we say that we fought the case on the footing that the only migration decision that was in play was the decision on the one page I have shown your Honours and, having defended it, the Full Court were, in our submission, quite wrong to go on to decide the other issues that they would only have reached had our primary argument been rejected.  The other point of course, your Honours, is that the removal power in 198 is a power conferred on an officer as defined, which is not the Minister.  So the Minister cannot have been making a removal decision under 198 of the Act.

Now, our friends meet that jurisdictional point in a way that perhaps also raises a further issue that might warrant the attention of this Court, because effectively they say jurisdictions conferred with respect to matters, not with respect to decisions, and therefore everything was there because there was a connection between all of these.

CRENNAN J:   That is what I was really grasping at before.  I had in mind what the Full Court had said I think in the joint reasons of Justice Lander and Justice Gordon.

MR DONAGHUE:   Although their Honours in rejecting our argument focused on the relief point and they said, well, the relief is connected, the relief that Ms Mortimer was connected.  The relief ultimately granted was not because their Honours severed it in the way that they framed the injunction.  But our basic answer to our friends’ point on jurisdiction is that often jurisdiction is conferred with respect to matters, but that is not what 476A does.

Section 476A expressly confers jurisdiction with respect to decisions, migration decisions, and there has been, as your Honours are aware, a history in this area of parliamentary attempts to control the jurisdiction of various different courts and in one of those attempts under the old Part 8 in Abebe v Commonwealth there was a debate in this Court about whether you could confer jurisdiction with respect to a part of a matter or whether it had to be with respect to the whole matter, and a majority of the Court held you could confer with respect to part of a matter. 

We submit that that is what 476(1)(a) does, but if our friends are going to argue otherwise, then that raises a whole other issue of a kind that may well warrant the attention of the Court.  Now, your Honours, I am running short of time and I will not develop the substantive points that I identified, but I should note this ‑ ‑ ‑

CRENNAN J:   What about that first point in relation to the construction of section 36(2)(aa)?

MR DONAGHUE:   Yes.  Your Honours, if you turn to page 107 of the book, in effect, the entirety of the Full Court’s reasoning on this ground is found on pages 106 and 107.  In paragraphs 245 and 246 their Honours in terms equate the question that is asked under (2)(aa) with the question that is asked under (2)(a).  You will see that particularly in the first line of 246. 

Even though if your Honours put the text of the two sections side by side - and you can see them easily at page 65 of the application book, amongst other places - textually the sections are profoundly different, both

in content and in approach because (2)(a) picks up the Refugees Convention and then one goes to that Convention to find the criteria, whereas (2)(aa) identifies in a statutory code‑type form the various – and there are numerous limbs in there that have no equivalent in the refugee provision definition that appear just to have been overlooked or written out by the Full Court in the direct equation that their Honours have undertaken.

CRENNAN J:   What was your argument in relation to this point?

MR DONAGHUE:   We had none, your Honour, because we did not address it below.  If we were to address it, we would submit that the context of the provision and the other limbs to it have the combined effect of requiring assessment against a probability or a more likely than not standard, that the bar for complementary protection is higher than the real chance test.  That is the bottom line.

Now, your Honours, I should tell you, although we submit it is not relevant to your Honours’ decision, that about a week ago the government introduced a Bill that if passed will repeal the complementary protection provisions.  That Bill has gone through the House of Representatives.  It has been referred to committee in the Senate and obviously its fate there is unknown.  We submit, in accordance with a long line of cases, that the proper approach for your Honours is to ignore that, not to speculate as to what the fate of that Bill should be, but I thought that I should alert your Honours to its existence.

CRENNAN J:   Thank you.

MR DONAGHUE:   The other point that I would make in my remaining time, your Honours, is that one of our other points is the Full Court equated the limit on the removal power with the visa criteria and that, we submit, has a very – is wrong in principle because the criteria a country uses in deciding whether to let someone in to live here is different from the criteria to be used in deciding whether return to another country is lawful.  Your Honours, I see the time.  We submit that on all grounds advanced, special leave be appropriately granted.

CRENNAN J:   Yes, Mr Merkel.

MR MERKEL:   If your Honours please, this is an inappropriate vehicle for special leave on the grounds my learned friend wishes to put forward.  He frankly opened with only three grounds and seemed to have a supplementary backup argument for other grounds and wants to go on everything.  The background to this matter, your Honours, is that my learned friends really ran the case below on the basis of, in effect, trying to firewall the Minister’s discretion under 46A and say it has immunity from challenge, and have run a number of arguments for that.

But as your Honour the Presiding Judge pointed out to my learned friend, counsel must have fall‑back positions in case the court does not accept those arguments.  What was squarely in the ring in no uncertain terms, certainly on the second day as it was fully argued, were the two grounds on which their Honours found that there was unlawfulness in the ITOA, the wrong standard of proof and the country information that denied procedural fairness. 

Ms Mortimer in argument made it clear that the Minister had elected not to put argument on those grounds and my learned friend had an opportunity in response to that and did not ask for or seek to put any further argument or to ask for any further time.  The problem that he now faces in the one point that he might legitimately put forward as a special leave ground, subject to it being reasonably arguable, is the standard of proof on the complementary visa.  That is a point of general application. 

The reality for that is that he put no argument below on the ground but – on that point, but that follows a history where the Minister has taken a position until this case, or until this application, in effect, that the standard is no different to the protection visa for refugees.  In a previous Full Court matter it was a ground raised and dropped before the Full Court.

In a matter before Justice North the Attorney‑General’s policy was to accept that lower threshold so when my learned friend elected not to put any argument on the ground to the Full Court it was against a history of the Minister accepting a lower threshold.  So your Honours come to this without any benefit of any reasoning of the Full Court.  He should not be permitted to resile from that election by way of a special leave application, but there is a more fundamental problem with it, and that is that, even if he succeeds, it will not result in success on the application because there were two grounds by which the decision was said to be – the section 46A decision was unlawful.

The second was denial of procedural fairness on the country information.  My learned friend bravely and valiantly puts forward that as a ground, but he quite frankly in his submissions accepts that really to succeed on that ground he probably has to get the court to reopen its decision on M61 because really what the Full Court did was in respect of three or four pages of detail, country information it set out which was adverse to the respondent, it applied M61. 

There is no principle involved.  It is a question of fact in each case as to whether procedural fairness is accorded.  There is no reasonable prospect of success on that ground and it does not raise a point of general principle.  But he has to try and trawl that ground into the special leave application because he cannot succeed on his standard of proof ground.  That will not set aside the decision, so he has to bring in the natural justice ground and seek to overrule M61.

Now, we say for those discretionary reasons he should not get special leave.  There is a final point on the standard of proof and that is it is not reasonably arguable.  The words used in the statute are “real risk”.  The second reading speech - can I take your Honours to it – explains quite clearly that this is – it is in tab 4 of our papers, your Honours.

The second reading speech explains that this is not just giving effect to the Torture Convention - and there are some authorities on the way America and Canada have given effect to the Torture Conventions that suggest there may be some credence in it, more probable than not, but in the first column at page 1356 of the second reading speech, about point 8, it is made clear by the Minister that the specific terms of the section are to give effect to the ICCPR, the Torture Convention and the Rights of the Child Convention. 

So the legislature has selected three Conventions which do not use any specific wording in respect of the issue my learned friend seeks to raise and the legislature has given effect to those in section 36(2)(a) using the words “real risk”.

In Chan’s Case it was made clear by the High Court by reference to the House of Lords and the American Supreme Court application of the Refugee Convention that “real chance” and “real risk” were interchangeable terms.  There is nothing in the text of a real risk test that even raises a more probable than not mathematical standard. 

Secondly, the context of the second reading speech at page 1357 shows that this is supplementary to the same kind of protection for the same reasons the Refugee Convention is to give, that the Refugee Convention being limited to the grounds of political opinion, race, et cetera, is an inadequate protection where the grounds are fear of torture or significant harm if refouled.

So, contextually, there was simply no reason why the same kind of protection to give effect to akin Conventions should have a higher bar.  When you look at the subsections of 36(2)(a) and the way in which the legislature has chosen to give effect to its obligations, it has spelt out a code which does not need resort to the Conventions, the three Conventions expressed in such different terms.  So, contextually and both by reference to purpose, there is no reason why a different substantive test should be imposed.  Now, lest there be any doubt about it, at the top of page 1357 in the first clear paragraph what the Minister says:

The risk of significant harm must go beyond mere theory or suspicion to give rise to a non‑refoulement obligation.

My learned friend seeks to ratchet that up to a most unlikely more probable than not test.  Now, even where this Court has considered the word “likely” which is not used here, it has been reluctant to elevate that to a mathematical criterion in Re…..  So my learned friend faces a very big task in trying to drag out of these words the test that he seeks. 

I should say in our written submissions the European courts have applied a real risk test to the Torture Convention, so that it is not a matter of really competing jurisprudence about the Convention, it is a matter of how each country seeks to give effect to the Convention in its own legislative or administrative programs.  Australia has selected its test and criterion, so we say for those three reasons the one ground that does have a wider application than the present case, this is not an appropriate vehicle, nor is there a reasonably arguable prospect of success. 

I should say on the natural justice ground, because my learned friend tries to justify as a fall‑back, as he said a defensive response, as to why he did not argue it, a very nice articulation of what your Honour Justice Crennan put to my learned friend is in Autodesk which is tab 1, Justice Brennan at page 308 which shows the problems confronting my learned friend on the election he took.  At 308 at point 4, his Honour made the observation in the middle paragraph after the first sentence:

However, a sufficient opportunity to argue a ground is given when the ground is logically involved in a proposition that has been raised in the course of argument before the court or is to be considered by the court as an unconceded step in determining the validity of a conclusion for which one of the parties contends.

When this came on before the magistrate in urgent circumstances because the respondent had received a notice of intention to remove him immediately and that necessitated the application, the standard of proof and the validity of the ITOA were placed in issue.  It is hard to see how Ms Mortimer could have succeeded in this application without establishing a ground of unlawfulness in the assessment procedure.  So it became clear, at least on the second day, that it was an essential step in her path to succeeding for declaratory and injunctive relief that the ITOA was not made in accordance with law.

Now, my learned friend, even after it had been raised so clearly, elected not to argue it.  So we say that there is simply no basis for the denial of natural justice to be regarded as an arguable ground in the present case.  As we all know, at the end of the hearing, if my learned friend had taken a view that it was unnecessary to argue but found that it was central to the argument put by the respondent, it was open to him to ask to put written submissions.  There was no time limit, there was no guillotine, but he did not do so.  So we say that this Court should certainly not encourage a party who has elected to conduct proceedings in a particular way to resile from that election, particularly when it has the consequences that it does in the present case.

Now, my learned friend did not put the jurisdiction point as a ground for special leave but still wants to pursue it.  We say the jurisdiction point is again not arguable.  It was clear from the outset that the two decisions in question were the Minister’s threatened removal coming from the notice of intend to remove, which is an act or omission defined as a migration decision in section 474, and the ITOA which was the only way in which the bar could be lifted for the respondent to avoid removal. 

So the injunction to restrain his removal was itself an injunction in relation to a migration decision which is the threatened removal.  The ITOA was in the course of making a decision under section 46A.  Now, that was what the Magistrates Court proceeding was about.  When that was transferred to the Federal Court, the Federal Court had jurisdiction in respect of those decisions because that was the subject matter of the proceeding.  It was what it was all about and no narrow view has ever been taken on jurisdictional issues. 

Once that occurred under section 476A, the Federal Court had jurisdiction in the matter, that is, the whole of the controversy.  So there was no problem about once it had jurisdiction it gets jurisdiction in the matter and no narrow view or reading should be taken of those provisions.  But again, my learned friend is seeking to pursue what he has lost on by again trying to firewall this 46A decision as if it had no relevance to anything else.

But, as your Honours are so well aware from M61, M70, yesterday’s decision, M76, the earlier decision M47, the section that gives the power to remove under 198 is inextricably bound up with the processes by which a person in the respondent’s position may seek to make lawful his position in Australia. 

So he is a lawful non‑citizen not an unlawful non‑citizen and when detention is held for that purpose and there is an engagement of the ITOA procedure in this case or the migration review decision in respect of a

refugee application, this Court has said that must be carried out in accordance with law.  Nothing new, nothing novel, all that the Full Court did is apply the principle, well established in M61, repeated again yesterday in M76.

So there is nothing unusual about this case.  What is unusual about it is the tactical decision that my learned friend has taken which has thrown up these problems for him.  He seems to argue that there is some implicit linking of section 198 with the refoulement obligation.  We say that is misconceived.  What this Court has said and all that the Full Court said in the present case is that the removal power in 198 cannot be engaged in once the Minister has commenced the process of review under 46A or the similar provisions and has detained a person for that purpose.  That assessment must be in accordance with law. 

Whether that requires an assessment of a refugee application as a refugee or a complementary protection criteria being satisfied in a particular case is the subject matter of the assessment which has to be in accordance with law, but my learned friend’s next step that the Minister is somehow compelled to refoul or not to refoul is not a matter decided in this case.  The injunction did not say or did not deal with what the Minister might do once he has an assessment, an ITOA made in accordance with law.  All it says he cannot remove until that assessment is carried out. 

This Court has made it clear that there is no unprincipled path followed by the Full Court in this case, so we say that all of the grounds that my learned friend has put forward are devoid of merit and that this Court should refuse special leave.  If your Honours please.

CRENNAN J:   Thank you, Mr Merkel.  Yes, Mr Donaghue.

MR DONAGHUE:   Your Honours, can you turn to the application at page 33 of the book – 32 and 33 of the book.  If your Honours have that, you will see at the bottom of page 32 there is a box ticked identifying the decision that is being challenged.  It is the decision made by the Minister with the specifics at the top of page 33, Chris Bowen, the Minister for Immigration on 21 September.  There is another box that could have been ticked for a future decision by a Minister or official which might have been the appropriate box is we were challenging a future removal decision.  It is not ticked.  There is an interlocutory junction sought. 

Then if your Honours go over the page, you will see again the top box, the order or decision of the Minister to be quashed and the declaration sought about the injunction.  The two grounds are both introduced as grounds attacking the Minister’s decision.  Now, my friend says it was an essential step in Ms Mortimer’s path to success to show an error in the ITOA.  That is true.  Our point is it was not an essential path to success in defending this decision to show that there was no error in the ITOA.  It was possible to defend the decision in another way and what Mr Merkel’s submissions completely fail to grapple with is that the Minister won in defending that decision.  There is no relief granted with respect to that decision even though it was sought.

So we just – while it is no doubt true, as your Honour Justice Crennan put to me, that you have to have fall‑back arguments, you have fall‑back arguments in case your first argument loses.  You do not need to have fall‑back arguments – if you can win a case four ways it is fine to win it in one.  That is what the Minister did and to submit that, as a matter of obligation we had to make every possible argument that was available just does not reflect the way that counsel now run cases.  If you have got a good point you run your good point and no court would encourage counsel to run unnecessary paths to success in litigation if there is a shorter way home.

Our friend raised an earlier decision where he said the Minister has got a past history of accepting this real chance and real risk of the same test.  That is not accurate, with respect.  In MZYLL, which is the Full Federal Court case to which my friend referred, the Minister had a ground saying likelihood, balance of probabilities is the standard and that ground was withdrawn. 

There was no concession or agreement that the standard was real chance.  The ground was withdrawn as a matter of fact because it became apparent that there was an inconsistency in the position one Commonwealth Department was putting versus the position another Commonwealth Department was putting and as a model litigant the Commonwealth needs to sort that sought of thing out rather than ‑ ‑ ‑

CRENNAN J:   So no history in relation to the correct construction of the new statutory criterion?

MR DONAGHUE:   Of the new statutory provision.  The Attorney‑General took a position about the international treaties in the extradition context.  The Department took a different position in relation to the complementary protection criteria and then when it saw the inconsistency pulled the ground, but that is all.  So, we submit, you cannot concede the construction of the section, in any event, but that there is as a matter of fact no past concession.

My friend says we need to challenge M61.  That is possibly true with respect to one paragraph only of the reasons in that decision, paragraph 91, and what we are really inviting the Court to do is to reconcile that paragraph

with its earlier decisions including in particular in Nguyen and the Refugee Review Tribunal, but if the Full Court was right about what that paragraph means, we do submit that it was incorrect, because procedural fairness does not require you to put all information.  It requires you to put adverse information, the relevance of which is not obvious.

So here the Minister lost this ground because there were reports that post‑dated the submissions and the Full Court said, well, you cannot have had an opportunity to comment on those documents because they came into existence after the submissions were made.  That is just not the right analysis.  You need to know is the information that was contained in those documents information that the person as a matter of fairness should have had an opportunity to an address and that is our point of principle. 

Finally, your Honour, my friend said it has been clear from the outset that the removal decision was in issue.  It is interesting he did not take your Honours to any document that would support that.  That is simply not so.  There was not even an injunction sought against removal until this matter was in the Full Federal Court, well after the transfer of the matter, and so, with respect to my friend, it is just not right to say that this case has been about 198 since the outset.  If the Court pleases, those are our submissions.

CRENNAN J:   Thank you. 

The applicant, the Minister for Immigration and Citizenship, seeks special leave to appeal from a decision of the Full Court of the Federal Court of Australia, which granted declaratory and injunctive relief in respect of a decision made by the Minister to remove the respondent from Australia in the exercise of his powers under the Migration Act 1958 (Cth).

Whilst the application concerns a statutory criterion not yet considered by this Court, there are insufficient prospects of success to warrant a grant of special leave.  Further, this is an inappropriate vehicle for a grant of special leave, having regard to the manner in which the matter was argued below.  This Court does not have the benefit of a decision below resolving any contested construction of the statutory criterion.  Special leave is refused with costs.

AT 12.42 PM THE MATTER WAS ADJOURNED