Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Moorcroft
[2021] HCATrans 70
[2021] HCATrans 070
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Brisbane No B66 of 2020
B e t w e e n -
MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
Appellant
and
DEANNA LYNLEY MOORCROFT
Respondent
KIEFEL CJ
KEANE J
GORDON J
STEWARD J
GLEESON J
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON THURSDAY, 15 APRIL 2021, AT 9.45 AM
Copyright in the High Court of Australia
MR C.L. LENEHAN, SC: May it please the Court, I appear with MR N.M. WOOD, for the appellant. (instructed by the Australian Government Solicitor)
MR S.J. KEIM, SC: May it please the Court, I appear with MS K.E. SLACK, for the respondent in this matter. (instructed by Sentry Law)
KIEFEL CJ: Mr Lenehan and Mr Keim, I take it that the original time estimate that we should be finished this matter by lunch time?
MR KEIM: I think I will be a little bit longer than the one and a half hours, your Honour, more like two hours.
KIEFEL CJ: That surprises me but ‑ ‑ ‑
MR KEIM: I will do my best, your Honour.
KIEFEL CJ: I am sure you will be as succinct as possible.
MR KEIM: Thank you, your Honour.
KIEFEL CJ: Yes, Mr Lenehan.
MR LENEHAN: Thank you, your Honour. Your Honour, I think our friends seek to rely on a notice of contention filed out of time. Your Honours will have seen that that is not opposed. Your Honours will have also seen that the issue presented by this case involves the proper construction of paragraph (d) ‑ ‑ ‑
KEANE J: Mr Lenehan, could I ask you to speak up a bit?
MR LENEHAN: Sorry, your Honour, yes. The proper construction of paragraph (d) of the definition of “behaviour concern non‑citizen” in section 5(1), and as your Honours have seen, in essence our argument is that the phrase “removed or deported from” where it appears twice in paragraph (d) means taken out of a country by or on behalf of a government in fact. I am going to come to the detail of the statutory text shortly.
Can I first illustrate how the issue arises, because it is a convenient way of describing the operation of those provisions in the broader context of the Act. Ms Moorcroft, as your Honours have seen, is a New Zealand citizen, who has resided in Australia from time to time by virtue of holding a special category visa – that is the visa class created by section 32(1) of the Act. She was most recently granted a visa of that kind on 2 January 2018 and then it was that visa which was purportedly cancelled on 3 January 2018. She was then removed from Australia in purported reliance upon the power in section 198(2), on 29 January 2018, but then after her removal that cancellation decision was quashed by consent by Judge Vasta on 28 June 2018.
We accept that it followed from the making of Judge Vasta’s order that Ms Moorcroft was not an unlawful non‑citizen when she was removed. That, of course, is because the order made by Judge Vasta retrospectively nullified the cancellation decision. So, it further follows, we accept, that section 198(2) did not apply to her because she was a visa holder and she could have at that time, therefore, sought to enjoin her removal. Your Honours have seen that she did not.
Her visa, nevertheless, ceased to be in affect upon her physical removal. That takes place by force of section 82(8) of the Act and your Honours would have seen from the submissions filed by the parties that a similar situation arose in Hicks, the Full Federal Court decision to which we have both referred.
We also understand that it is not controversial that the order for certiorari made by Judge Vasta did not and, of course, could not alter the fact that Ms Moorcroft was, in fact, removed from Australia. That follows from the point that we make in paragraph 15 of our written submissions, that is, that certiorari issues to quash the legal effect or legal consequences of a decisions and it cannot, of course, quash a physical act which remains an historical fact. We have given as an example in our written submissions the purported registration in issue in AEU which remained an historical fact, notwithstanding the issue of certiorari to quash the legal consequences of that registration. We say the same applies here to the fact of Ms Moorcroft’s removal.
Returning to the chronology, Ms Moorcroft then returned to Australia on 29 January 2019. As a New Zealand citizen, she did not need a visa to travel to Australia – that is by virtue of section 42(2)(a) of the Act. But because her earlier visa had ceased to be in effect – see again section 82(8) – she required a visa to remain in Australia. Accordingly, she applied for a further special category visa on her arrival at Gold Coast airport. That then required the Minister’s delegate to consider the criteria for that visa, and it is convenient to introduce those now.
Your Honours have the relevant provisions in the joint bundle of authorities volume 1, and the extracts from the Act appear in tab 3, and page 49 is where your Honours find section 32. If you look to that provision you will see first subsection (1), which creates the visa class, and then subsection (2) creates a criterion for that class which is in fact three alternative states of satisfaction, that is, the Minister must be satisfied that the applicant falls within any of the descriptions in paragraphs (a) to (c). The relevant focus, of course, is here on paragraph (a).
Can I first note paragraph (a)(i), which envisages that New Zealand citizens - to fall within (a) a person must be a New Zealand citizen - that those persons will present their passport to an authorised officer or an authorised system. Subsection (3), if your Honours look further down the page, then elaborate on that in respect of authorised systems.
Those are, of course, things that generally take place at ports during immigration clearance. Immigration clearance is dealt with in Part 2, Division 5 of the Act. Your Honours have that in the supplementary bundle of authorities. I do not need to take your Honours to the detail of that at the moment, but can I note this now. The presentation of a passport is typically how a person satisfies the requirement to present evidence of their identity to a clearance authority under section 166, which appears in that part. So, that indicates that typically, as was the case here, the decision on the special category visa will be made at a port while the person is in immigration clearance.
Can I then come back to section 32. Your Honours will note that the other critical limb at paragraph (a) is (ii) and it is a form of negative criterion, so the Minister or delegate must be satisfied that the person:
is neither a behaviour concern non‑citizen nor a health concern non‑citizen –
I am going to drill down to “behaviour concern non‑citizen” in a moment. Before I leave section 32 and go to that definition, can I ask your Honours to also note paragraphs (b) and (c). They provide for declarations by regulation that persons or classes of persons are persons for whom a visa class would be inappropriate. So satisfaction that a person falls within one of those prescribed categories is an alternative way of meeting the criterion in subsection (2) for a person who cannot satisfy paragraph (a). I will come back to the importance of that provision in our argument.
STEWARD J: Mr Lenehan, before you go on, can I just understand the mechanics. Presumably if you are a New Zealander you could apply for the visa online when you are in New Zealand and turn up with a completed form, or do you do it when you get to the airport in Australia?
MR LENEHAN: Your Honour, as I understand the mechanics, it all takes place when one gets to Australia.
STEWARD J: You simply ask for one at the passport desk?
MR LENEHAN: Yes.
STEWARD J: How do you do that with the modern system where you simply scan your passport?
MR LENEHAN: So that, your Honour, is the presentation to an authorised system, so it takes place automatically.
STEWARD J: Okay, thank you for that.
MR LENEHAN: Could I then turn to the definition of the term “behaviour concern non‑citizen”. Your Honours find that in volume 1 at pages 16 and 17, and we are relevantly here concerned with a non‑citizen who, over the page on 17:
(d)has been removed or deported from Australia or removed or deported from another country –
I am going to come back in detail to how one reads that. Going back to the chronology, the delegate determined not to grant Ms Moorcroft a special category visa on the basis that she had been removed or deported from Australia and accordingly the delegate could not be satisfied that she was not a behaviour concern non‑citizen.
Your Honours have the decision recorded in brief terms. I will not take your Honours to it, but just to know where it is. It is in the core appeal book, tab 1, page 5. From that decision, Ms Moorcroft then made a further application to the Federal Circuit Court which was again heard by Judge Vasta who dismissed the application. From that, Ms Moorcroft appealed to Justice Collier and it is from her Honour’s decision that the Minister now appeals.
Can I first deal with her Honour’s approach, particularly because, as your Honours will have seen, a form of the reasoning applied by her Honour now seems to be put by our friends indeed as their principal argument. So you find her Honour’s reasons in the core appeal book at page 41 – I am sorry, your Honours, you actually find it at page 30, but I am going to ask your Honours to turn immediately to page 41 which is where her critical reasoning appears.
In paragraphs 30 and 31 you see that her Honour took the view that at least as regards removal from Australia, removed meant removed validly or lawfully in accordance with Part 2 Divisions 8 and 9 of the Act. That was despite accepting ‑ see paragraph 29 at the top of the page ‑ that it would be, to use her Honours word:
wrong to contort the language of the statute . . . and imply the words “lawfully” or “validly” ‑
before the words removed or deported in paragraph (d). But that we say in substance is precisely what her Honour did. It is, of course, true ‑ which is her Honour’s point in paragraph 31 ‑ that where the definition of “behaviour concern non‑citizen” refers to removal or deportation, it is referring to a class of executive acts, at least as regards Australia, that the Act authorises.
It is also true that those powers or duties are subject to certain statutory constraints, and that we concede that they were breached here. But that, we say, simply cannot answer the constructional choice that arose for consideration. Should Parliament in paragraph (d) of the definition be taken to have intended only such acts that had been validity performed.
Now, that question, we say, as is demonstrated in fact by the various authorities relied upon by both parties, so Park Oh Ho, Plaintiff S157 and the…..line of authorities, that is a question of construction, one that requires particularly close attention to the text and context of the provision which is said to attach legal consequences to the invalid act.
Now, that, we say, is demonstrated by the very helpful analysis of Professor Forsyth, to which Justice Gageler referred in Kable (No 2), and we have given your Honours Professor Forsyth’s chapter in volume 8 of the joint book of authorities. If I could ask your Honours to turn to that, and it is at 1858 of the book, and it is tab 40. And if I could ask your Honours when you have it then to turn to 1864, where Professor Forsyth introduces the topic of how void acts can have legal consequences. And at the foot of 1864 he makes a point made by this Court a number of times, that is, that:
it is inevitable that there will be occasions on which an administrative act will be void, yet it will have legal consequences.
On 1865 to explain that as a matter of legal theory by reference to the work of Professor Kelsen, with which the Court is very familiar. And then at the foot of 1865 he goes on to explain that as a matter of doctrine, and what appears there is the point made by Justice Gageler in Kable (No 2), that is that the factual existence of a void act may serve as the basis for other decisions if the legal existence of the first act is not a precondition for the second.
On 1866 he then gives another example, a further if you like autochthonous example was given by Justice Gageler in Kable (No 2), and that is the facts of Ruddock and Taylor and your Honours will recall that in that case even though the detention decision was based on a mistaken view that the cancellation power had been validly exercised, it was in fact invalidly exercised and his Honour illustrates that as how an invalid act can yet have consequences under the Act.
If you then look to ‑ coming back to Professor Forsyth’s article 1867 ‑ he goes on to consider the other universe of possibilities, that is, on the other hand the legal powers of the second actor may depend upon the validity of the first act and he goes on to give a number of helpful examples. Then ‑ and this is the passage that we, in particular, emphasise, 1867 to 1868, he says first:
In such cases –
that is the second category:
the invalidity of the first act does involve the unravelling of later acts which rely on the first act’s validity. However –
and this is the point we emphasise:
the voidness of the first act does not determine whether the second act is valid. That depends upon the legal powers of the later actor. If the validity of the first act is a jurisdictional requirement for the valid exercise of the second actor’s powers, then, if the first act is invalid, so is the second.
Then, in the next paragraph on that page is the point that your Honours will have seen that we emphasise in our written submissions identified as the “crucial conclusion”:
The focus must thus . . . fall upon the second actor’s legal powers.
Professor Forsyth goes on to refer to Wicks as a correct statement of that idea and your Honours see the first sentence of Lord Hoffmann’s passage there:
The question must depend entirely upon the construction of the statute under which the prosecution is brought.
That was the second actor in that case. So, the question of whether here Parliament has attached legal consequences to the invalid thing is not answered by observing, as her Honour Justice Collier did that the provision which empowered the invalid act has limits. That is because that is the starting premise for the construction exercise that is to be undertaken, and consistent with Professor Forsyth’s article, we say the focus is rather on the later exercise of power, that is, the decision to refuse the visa under section 65 which, in turn, required particular attention to section 32(2) and a definition of “behaviour concern non‑citizen”.
Now, her Honour and also our friends instead placed some emphasis on a different definition and that is the definition of “removee” in section 5(1) which does, it is true, refer to being removed under Part 2 Divisions 8 and 9. You see that in her Honour’s reasons in paragraph 31 and you will have seen a similar idea in our friend’s written submissions.
We say a number of things. First, that defined term does not, of course, appear in any of the provisions dealing with special category visas or the relevant criteria. It is rather deployed in a number of offence provisions, for example, section 232 and 233E and also provisions conferring certain powers on officers, for example, section 249 and 251.
So, we say, regard to that definition is of minimal assistance in construing provisions which studiously avoid any use of that defined term and refer instead to a non‑citizen who has been removed. Indeed, that different usage may in itself suggest that a distinctly different approach was taken by Parliament in dealing with the special category visa provisions, particularly noting that the word “removed” in the second limb of paragraph (d) cannot pick up the legal constraints referred to in the definition of “removee”. Those constraints in Division 8 of Part 2 are self‑evidently inapplicable to foreign acts of removal. So, we say, the more obvious conclusion is that “removed” is used simply to refer to all acts and not only those performed within legal constraints.
Now, in arguing to the contrary, your Honours will have seen that our friends place reliance on section 18A of the Acts Interpretation Act which your Honours have in the joint bundle volume 2, tab 4 on page 115. That provides:
where a word or phrase is given a particular meaning, other parts of speech and grammatical forms of that word or phrase have corresponding meanings.
That of course is subject to a contrary intention - see section 2 of the Acts Interpretation Act, and we say a contrary intention plainly exists as regards the use of the term “removed” or “deported” in what I will call the second limb of paragraph (d) for the very reason I mentioned before, the constraints in Division 8 of Part 2 are simply inapplicable to foreign acts of removal.
GLEESON J: Do you say that you have to rely on the contrary intention position?
MR LENEHAN: Your Honour, I think I would accept that, yes. For reasons I am going to come to, that phrase has a consistent meaning, we say, when used in the first limb, what I will call the Australian limb of that definition. So we say for those reasons your Honours do not take anything in particular from the defined term “removee”.
GLEESON J: The reason I ask that question is that Mr Herzfeld, in his statutory interpretation of principles, gives some analysis of section 18A which suggests that it might not apply regardless of contrary interpretation principle.
MR LENEHAN: Your Honour may have in mind this point, and I am remiss for not making it. The term “removee” itself incorporates the term “removed”, and so there is kind of a, if you like, definitional ouroboros. It eats itself. I think your Honour has in mind, Mr Herzfeld refers to a decision of the Western Australian Court of Appeal, Robinson, where it is said that in that circumstance, provisions like section 18A do not have application. So I think I retract what I said before to your Honour.
KEANE J: Just apropos of that, I notice that “remove” is defined to mean:
remove from Australia.
Then “removee” is not defined as “a person removed from Australia”, “removee” is:
an unlawful non‑citizen removed, or to be removed, under Division 8 of Part 2.
MR LENEHAN: Yes.
KEANE J: Is the respondent an unlawful non‑citizen?
MR LENEHAN: At the time of her removal, the respondent ‑ ‑ ‑
KEANE J: Yes, at the time of her removal, was she an unlawful non‑citizen?
MR LENEHAN: No. At the time of her removal, no.
KEANE J: Yes, she was here, relevantly, as a New Zealand citizen.
MR LENEHAN: Yes, with a visa in force.
KEANE J: And subject to 32?
MR LENEHAN: Yes, she was, your Honour.
KEANE J: So, given the collocation of “remove” and “removee” and the elaborate definition of “removee”, which depends upon the removee being an unlawful non‑citizen, is not the point that Justice Gleeson raised with you rather poignant, that one is not being driven to the default provisions of the Acts Interpretation Act, one has a pretty clear indication here that “removee” is distinctly not a person of whom one can say only that they have been removed from Australia.
MR LENEHAN: Removee, yes, I accept that, your Honour. That is so. So, arguably, the more relevant definition here is “remove”. We embrace that. We rely in addition on two central features that we say points to the correct construction. I will state what they are and then I will deal with them in turn.
GORDON J: Is this in the context of the definition of “behaviour concern non‑citizen” or - - -
MR LENEHAN: Yes.
GORDON J: Thank you.
MR LENEHAN: Yes, it is. The first point is the fact that both paragraph (d) and each of the other limbs of the definition that your Honours will have looked at refer to what we say may be broadly characterised as – I will use the term “governmental acts”. Then, the second point is the point that I noted before, that is that the term “removed or deported” appears twice in the very same subparagraph.
So, dealing with the first point, we say that it is significant that Parliament has not defined “behaviour concern non‑citizen” by requiring some, if you like, direct evaluation of the relevant behaviour. Now, some of our friend’s submissions on purpose and principles of legality seem to overlook that point.
What it has done instead in the definition is to fix on governmental acts, both Australian and foreign, as a convenient proxy for identifying individuals of behaviour concern, and so grouping the various aspects of the definition together, conviction, sentence et cetera, in paragraphs (a) to (c) – those, we say, are acts of the judicial organs of government, and I will come back to those shortly in responding to a point made by our friends about those provisions.
Then, removal and deportation in (d), and exclusion in (e), are of course acts of the Executive branch. We say, taken together, those are the matters of – your Honours will have noticed that the Full Federal Court in Hicks uses the term “matters of public record” – they are those things. And explaining the genus, those matters of public record involve, we say, governmental acts that are commonly performed in response to various forms of behaviour that is of concern.
As was said in Hicks ‑ I am sorry, I should have given your Honours the reference to where Hicks appears. It is in the joint bundle volume 6, tab 29. The relevant passage is at 1069 of the book, at paragraph 41. We really rely on that just for this point. It is there said that the statutory design involves the use of precise terms, and precise terms which leave little room for evaluative judgments.
Now, as our friends point out, the Court was there dealing with a contrast with section 501. We acknowledge, of course, that any statutory power or duty involves an element of evaluation. Our point is not to say that there is no evaluation in applying the definition; our point is to say that that process takes place within what I will call narrowly defined bounds and those bounds are traced by the precisely worded definition.
GORDON J: Can I ask just one question about that submission?
MR LENEHAN: Yes.
GORDON J: At the moment, does that extend to (e) and the regulations that are made under (e)?
MR LENEHAN: Your Honour, it extends, at least to, we say, the statutory text of (e). All (e) is doing is specifying the circumstances. I am sorry, your Honour, I should have that in front of me.
GORDON J: So, it describes it as “prescribed circumstances” and I thought that there were regulations made under that which may not fit that which you have just put to us.
MR LENEHAN: Yes.
GORDON J: I just want to make sure that I understand whether or not that submission you just made extends to (e).
MR LENEHAN: Your Honour, I am going to come to (e).
GORDON J: I will leave you and you can deal with it when you get there. I apologise.
MR LENEHAN: We say if one accepts that that is an apt way of describing the structure, there is an obvious statutory purpose that can be discerned. As I mentioned before, this visa class will at least generally involve decisions being made by a delegate of the Minister at a port during immigration clearance. That was the point that I made before by reference to 32(2)(a)(i).
Can I also note, in a decision that unfortunately only came to our attention last night but that we have given to the Court this morning and I hope your Honours have it - it is a decision of Justice Jagot which is Srouji (2014) 139 ALD 267. I do apologise for the lateness of this authority, your Honours. If I could draw your Honours’ attention to what her Honour says in paragraph [21], where she talks about immigration clearance and, specifically, its lengths. She there says:
the statute does not contemplate a person remaining “in immigration clearance” for any lengthy period of time. Indications to this effect are numerous.
Then she goes on to deal with them. Your Honours, as I mentioned before, have the immigration clearance provisions in Part A of the supplementary joint bundle, starting at page 6. So, the first indication that her Honour mentions is 166(1) and in the chapeau to that provision, it says:
A person, whether a citizen or a non‑citizen who enters Australia must, without unreasonable delay –
do the things that are mentioned there, including presenting evidence of identity – which, as I mentioned before, is usually a passport. Then, the second statutory indicia that her Honour mentions is that:
The person must present this evidence at the port at which they arrived.
Her Honour refers to 166(2) there. We apprehend that her Honour, in fact, meant to refer to section 167(1) which says:
Subject to this section, a person required to comply with section 166 who enters Australia at a port, must comply-
unless the exceptions in (b) and (c) apply at that port. Then, the third indicia that her Honour mentions is section 172(2), and she says that:
A person is in “immigration clearance” only for so long as the person is with an officer or at an authorised system for the purpose of s 166 -
So her Honour there seems to have in mind that the length of time in immigration clearance has what I will call a purposive dimension. It only extends as long as that purpose is being fulfilled. That is the purpose of presenting the evidence and providing the information referred to in that section.
Your Honours will see that her Honour also refers to a different provision, section 192(7). That provision only applies when the officer knows or reasonably suspects that the person holds a visa that is liable to be cancelled, so that is not directly relevant to this sort of visa class, particularly when the visa is only obtained at the port. But it does support her Honour’s general point about the intended length of immigration clearance, not for any lengthy period of time.
So from that we say the particular context in which these decisions are generally made at the port during the process of immigration clearance, which was understood by Parliament not to be a lengthy process, all of that suggests that the statutory object underlying the criteria was to facilitate ease of decision‑making.
Now, our friends do say that it may not always be the case that decisions are made during immigration clearance and they point out that that seems to be contemplated by the regulations which refer to people holding other visas and getting a section 32 visa. So they say in those particular circumstances a decision on a special category visa could be made after the person is immigration cleared. We accept all of that. It does not detract from our point that it will generally be a decision made at a port prior to the person being immigration cleared, which is plainly what section 32 envisages.
Contrary to the further suggestion which is made by our friends in paragraph 61 of their written submissions, we are not there saying that that is just a concern about administrative inconvenience, I think is the term they use, although we do say that that consideration is not insignificant in this context.
More importantly we say is that this has substantive effects on the rights of a visa applicant because, if lengthy deliberation or evaluation is required by the officer, it may well mean that the person is required to either stay in immigration clearance or perhaps be placed in immigration detention for an extended period, which is contrary to the intention discerned by Justice Jagot in the decision that I have just taken your Honours to, that is, assuming, as will generally be the case, that the special category visa is the only visa that the person seeks and they hold no other visa.
I am going to come back to the principle of legality, but we do say that to the extent that principle has anything to say about the construction issues that arise here, it supports our proposed construction.
Now, consideration of those matters, the particular decision‑making context, points to the significance of the second contextual feature I mentioned before, that is, the twice appearing words “removed or deported”. Your Honours will have seen that our friends have waxed and waned about whether those words are to be given the same meaning.
In the notice of appeal to the court below, which is in the core appeal book, tab 4 at pages 26 and 27, they actually accepted that they should be given a different meaning. We understand from the written submissions that they now take a different view, although they do say that the Court does not need to grapple with that issues. We say that it is obviously necessary to do so because the construction of collocated terms obviously bear upon each other and so it does not advance things, we say, to say that the delegate’s decision was not here based on the second limb.
Now, in saying that the two limbs are to be given the same meaning, we rely on the presumption that your Honours are very familiar with, that is, a word or phrase has the same meaning throughout a statute. Your Honours will have seen that we rely on what was said by Justice Mason in Franzon. I will not take your Honours to it, but it is in the joint bundle, volume 4, tab 21 and page 640, where his Honour described that principle as the “sound rule of construction” and we say that sound rule applies with particular strength when the same words are collocated in the same paragraph.
The notion underlying that principle has been explained by Professors Pearce and Geddes as an expectation that the words in a statute will be used with a measure of precision. That same notion underlies the allied principle that where the legislature employs different terms in a statute, they carry different meanings. So each can be seen as yet another example of a principle which Parliament and legislative drafters can be taken to be familiar with, although this one has a, we say, pointed exhortation for precise language in drafting.
Now, we accept, as our friends say, that the principle regarding consistent meaning can be displaced where the context demands a different meaning in one place to another. Can I give an example of that from one of the authorities cited by both parties, that is McGraw‑Hinds, which your Honours have in the joint bundle in volume 4, tab 15, page 369.
Can I just describe what was in issue there. The word “person” in the criminal consumer protection statute that the Court was considering, which was directed to unsolicited directory advertising posing as invoices, that provision was held not to refer to the Crown when it was addressed to the offender on the basis that the Crown could not be liable for an offence. But then that same term had a different meaning when used to describe, in the very same subsection, the person against whom the offence could be committed. It was held that that term did include the Crown.
Your Honours will see why in the reasons of Justice Gibbs at joint bundle 380, and then Justice Mason at 392. In essence, what their Honours say there is that it was simply not rational to assume that the legislature intended to permit an undesirable practice to be employed against the Crown when it was prohibited as against everyone else, so, in other words, application of the presumption that would depart from what was obvious from the statutory purpose as discerned, and context.
We say no contextual imperative of that nature exists here because paragraph (d) uses identical language to describe governmental acts of Australia, and other countries, directed to exactly the same statutory object, that is, as a convenient proxy for identifying individuals of behaviour concern, being a criterion to be applied in the particular and peculiar decision‑making context I identified before.
So we say the presumption of consistent meaning is not displaced here, and if those identical terms do have the same meaning, then we say it further follows that all of that presents particular difficulties for any suggestion that paragraph (d) of the definition is confined to valid or lawful acts, because that would then require, potentially, the decision‑maker to enter into the complicated inquiry that we identify in our written submissions at paragraph 41, which includes at least these steps. Step 1, ascertain a foreign country’s laws, and that will typically include as sub‑steps ascertaining the:
substantive constitutional and other laws conferring or constraining relevant governmental powers –
and also ascertaining the:
laws bearing on the procedure for and legal consequences of challenges to the exercise of such powers –
and then step 2:
apply that foreign law to the relevant facts for the purpose of assessing whether the applicant had been validly, or perhaps lawfully, removed or deported –
All of that, we say, is a complex task which the relevant decision‑makers, again, typically the Minister’s delegates at a port during immigration clearance, are ill‑equipped to perform.
In saying that we do not say – which seems to be attributed to us by our friends ‑ that complexity inevitably arises in every case. But it will arise in at least some cases, with consequential effects on the length of time the immigration clearance or detention that I mentioned before. And we say, obviously, whatever construction is reached as regards paragraph (d) will apply to easy and hard cases alike, so it does not really help our friends to point to the easy cases.
Can I perhaps elaborate on what we say a little further. It is probably most useful to think of the operation of this provision as applying to a spectrum of possible cases. At one extreme will be clear cases akin to the present case where one has a foreign court ruling on the validity of removal action. And at the other will lie cases in which a person merely asserts that they were invalidly or unlawfully removed without giving any particulars or elaboration.
And it is true, as our friends suggest in their written submissions, that what I will call the mere assertion cases can probably be rejected on the basis that the decision‑maker is simply unable to reach the requisite state of satisfaction that the criteria omit. But that leaves as the most difficult area, what I will call the murky middle, that is, cases where there is an apparently coherent claim that a person was unlawfully removed under foreign law, that in the absence of a court order. And we say in that class of case, Parliament cannot be taken to have expected that decision‑makers applying paragraph (d) would have training or knowledge as to the diverse legal systems of the world, or even, for that matter, ready access to answers on inquiry, that is, without consulting foreign lawyers.
You might compare that position with the expectation that they might have some knowledge of the local legal system, and, in any event, ready means of supplementing their knowledge with advice from Australian lawyers as needed. And so, accordingly, while the delegate might receive a claim as to unlawful removal that is apparently coherent, that is, at least internally consistent and particularised, the delegate in the absence of any expertise in the legal system of a foreign country, let alone any independent knowledge of the facts, simply cannot safely conclude, without further inquiry, that the claim is in truth, to use the language of our friends, either compelling or, for that matter, correct.
And so, if all of that is right, that then means the delegates are placed in an invidious, perhaps impossible position – do they simply state, without a comprehensive understanding of the legal system of the foreign country, that they cannot be positively satisfied that the person is not a behaviour concern non‑citizen, because they cannot be positively satisfied that the removal was unlawful, or, must the delegate conduct their own inquiry into the legal system of the foreign country to assess the correctness of the apparently coherent claim made by the applicant as to illegality with all of the difficulties that that involves.
We say that it simply cannot have been Parliament’s intention that the delegate would need to confront that conundrum. Now, that is not solved by our friend’s suggestions – see paragraph 61 of their submission’s, last sentence ‑ that this can somehow be all ironed out on judicial review, and that is because the Court would not, in that process, be engaged on the merits of the decision. It would, as in Tahiri, which is the decision to which our friends refer – I will not take your Honours to it, but Tahiri is in volume 7 tab 38 ‑ they would as in that case be considering whether it was reasonably open to the delegate to take the particular view of foreign law that they did.
Now, if we are correct on all of those matters, it suggests that Parliament simply did not intend that the application of paragraph (d) of the definition would rest on any assessment of the lawfulness or the validity of acts of removal. It points instead to our construction where removal means nothing more than removal in fact. And, as I have said, Ms Moorcroft was so removed.
In further support of that construction, your Honours will have seen that we rely on a principle that your Honour Justice Keane identified in Plaintiff M68. M68 is in volume 4 of the authorities, tab 20 and page 507.
KEANE J: Can you give a Commonwealth Law Reports volume?
MR LENEHAN: I can, your Honour. It is (2016) 257 CLR 42.
KEANE J: Thank you.
GORDON J: What page of the report please?
MR LENEHAN: It is page 507 of the joint bundle.
GORDON J: No, the page of the report?
MR LENEHAN: I am sorry, your Honour, it is 42.
GORDON J: I see, thank you. That is the beginning of the page. Which part are you taking us to?
MR LENEHAN: I am taking your Honours to paragraph 248, which is in the reasons of Justice Keane, and the Commonwealth Law Reports page is 126 and the joint bundle page is 588. So, at paragraph 248 your Honours will see the conclusion that Justice Keane reached, that is:
Contrary to the plaintiff’s argument, the authority conferred on the Commonwealth by s 198AHA(2) ‑
That provision is reproduced at 577 of the book ‑ which using the Commonwealth Law Reports page numbering, is 115 ‑ says that:
is not conditional upon a judgment by the domestic courts of this country as to the validity of the laws of Nauru.
Your Honour then went on to give, in paragraph 249, reasons based on a textual analysis of the law, and then in paragraph 250 and following, your Honour identified a further principle weighing against the construction, which is the construction that Mr Merkel and I contended for on behalf of our client. Your Honour identified that principle by reference to notions of “international comity and judicial restraint”.
In paragraph 251, you did that by reference to the well‑known passage from Spycatcher, referring in turn to Underhill, Buttes Gas and Oetjen. We note, in particular, the notion that appears in the first part of that passage that:
in general, courts will not adjudicate upon the validity of acts and transactions of a foreign sovereign State within that sovereign’s own territory.
Now, it is very plain from what your Honour then went on to say at paragraphs 254 and 255 that he recognised that there were exceptions to that principle referring to, amongst other things, Moti, on which our friends rely, and I will return to that in a moment, but your Honour also then makes this important point in paragraph 255, that is:
recognition that the statement of conclusions about the legality of conduct under the law of a foreign sovereign State may be justified as an exception to the settled principles of judicial restraint and international comity -
is in fact to recognise those principles, not subvert them. Can we note that perhaps underscoring that point it is said in the joint reasons at paragraph 48 that despite recognition of those kinds of exceptions in Moti, the occasions on which an Australian court would have to rule on the legality of conduct of a foreign government would be rare. Your Honour Justice Gordon made a similar observation at paragraph 414, where your Honour said:
courts of one country will not, except in limited and presently irrelevant circumstances, sit in judgment on the acts of the government of another State done in the territory of that other State –
Your Honour referred to, amongst other things, Underhill, Spycatcher and Moti. So, returning to the reasons of Justice Keane at paragraphs 256 and 257, your Honour went on to point out that the facts of Moti involved a conclusion regarding the lawfulness of deportation under foreign law as a necessary step towards a decision about abuse of process, but that that presented quite different issues to the question of construction that arose in 68. The principle there your Honour identified at paragraph 252 suggested that the provision should not be construed in the way that my client suggested it should be.
We say a similar question of construction arises here, that is, is the definition of “behaviour concern non‑citizen” to be understood as conditional upon an opinion of an Australian administrative decision‑maker and, ultimately, a court of the validity of executive action of a foreign country. We say the principle that your Honour identified in Plaintiff M68, formulated by reference to Spycatcher, is plainly sufficiently broad to capture that class of case also, that is, acts of a foreign executive within territory.
We say that application of that principle here weighs in favour of our construction. Indeed, if it were otherwise, the definition may well require the delegate and, ultimately, a court to form a view on questions of validity of foreign law under the constitution of another State, so that is the very issue that arose in M68, if, for example, a person claimed that their removal was invalid because the law itself was invalid under that State’s constitution.
Now, our submission on this point seems to have been misunderstood somewhat by our friends and, relying on Moti and a host of English authorities, our friends say there is no universal rule that Australian courts and administrative decision‑makers cannot be required to form a view about the lawfulness of conduct by reference to foreign law. We entirely agree and, as is clear from your Honour Justice Keane’s reasons in Plaintiff M68 and your Honour’s discussion of Moti, your Honour also appreciated that point. But we do say that much clearer language than appears here is required to achieve that result and where, as here, there are constructional choices available, a construction that produces that result is, we say, not to be preferred. In any event, our argument does not rest solely on that principle. As I have noted before, we also take what is obvious from the text and context.
On our friend’s construction, a complex evaluative argument would equally arise as regards the Australian limb of paragraph (d) and we refer in our written submissions to the observation made in the joint reasons in Kable (No 2) to the effect that the very concept of validity is not one that is sharply defined and that it is therefore:
necessary to exercise great care in using words like “void”, “voidable”, “irregularity” and “nullity” –
Of course, less difficulty arises in this particular case, if our friend’s construction is correct, because Ms Moorcroft was armed with the helpful letter from her solicitor that your Honours have seen which attached the order of Judge Vasta. But that does not detract, we say, from our construction point for the reasons that I mentioned before. In other cases where there is no determination by a court and no helpful letter, the delegate potentially finds themselves in a sea of uncertainty during the process of immigration clearance which is, as I have said, a time pressured process. We therefore say that none of that analysis is required because again the section should be understood as referring to removal in fact.
Can I then move to the principal arguments that are put against us and our proposed construction, and I am coming shortly to your Honour Justice Gordon’s question about paragraph (e). Can I first deal in sequence with the other paragraphs of the definition and our friend’s arguments on them. So can I first take paragraphs (a) to (c), and your Honours will have seen that the argument there goes that (a) to (c) includes acts, convictions, et cetera of foreign courts. On that premise, Ms Moorcroft says that Parliament must have contemplated that the Minister would be required to make assessment of the legality of those foreign acts. She therefore says that that applies equally to those acts of foreign governments in paragraph (d).
For our part, we do not dispute that paragraphs (a) to (c) encompass acts of foreign courts, albeit that we would place less emphasis on the textual indicia that Ms Moorcroft identifies. Your Honours will have seen that in paragraph 60 of her written submissions she places particular emphasis on the reference to “sentenced to death” in paragraph (a). Can I just note on that point that section 201 of the Act which deals with deportation of non‑citizens convicted in Australia only and which existed at the time that the definition of “BCNC” ‑ or “behaviour concern non‑citizen”, I am using the acronym, I apologise – was introduced, likewise speaks of an offence for which the person was sentenced to death.
Can we also note that the death penalty still applied in New South Wales as late as 1985 and was not foreclosed by Commonwealth legislation until 2010. So we say your Honours would not draw too much from that aspect of paragraph (a). But we say that Ms Moorcroft’s proposed construction extends to foreign courts, has an obvious sense for another straightforward contextual reason. That is, one is dealing with a visa criterion that will typically apply to people coming from places other than Australia who, to the extent they engage the definition of “behaviour concern non‑citizen”, are likely to have undertaken the relevant conduct of concern for which (a) to (c) are a proxy in that other country and therefore to have been convicted, sentenced, et cetera by the courts of that country. And so we say, for that reason, your Honours can take it that (a) to (c) extends to convictions by foreign courts.
The more fundamental difficulty with Ms Moorcroft’s argument on this point, we say, is that it overlooks the fact that there are significant differences between the subject matter of paragraphs (a) to (c) on the one hand and paragraph (d) on the other. And can I explain that this way, paragraphs (a) to (c) deal with what we have called in our written submissions non‑physical legal actions or events. The statute is using well‑accepted labels or terminology describing determinations or orders of the judicial branch of government, whereas “removal or deportation” involves a physical action undertaken by the Executive, albeit, as we accept, the performance of that action may be subject to legal constraints.
And your Honours will recall the point that I made much earlier, that is, it is a nonsense to talk of certiorari quashing a physical act. But the same is obviously not true of the judicial acts in paragraphs (a) to (c). In our legal system a conviction may be quashed, of course, or reversed on statutory appeal, and formally by the writ of error procedure discussed in Cavanough, and so too may the findings in paragraph (c), and of course similar mechanisms operate in other legal systems. And when they do operate in that way, there will almost inevitably be a public record of that later exercise of judicial power.
So the first point we make about this submission is that one does not necessarily draw any overarching conclusion applicable to paragraph (d) on the basis of the presence of paragraphs (a) to (c), which are different. We then make this further point, and that is, despite those differences, the application of subparagraphs (a) to (c) is a relatively straightforward process which does not detract from our submission that the definition as a whole is to be understood as facilitating ease of decision‑making.
Can I illustrate that by canvassing some of the issues of construction that may arise, we say they do not, in applying (a) to (c) to convictions said by a visa applicant to be attended by error. Your Honour Justice Steward is dealing with somewhat similar issues, albeit by reference to the notion of a sentence of imprisonment in the context of section 501(3A)(b) in Plaintiff B65.
Those issues might include, for example, does the delegate at the port need to consider the potentially complicated issue of whether a conviction, particularly a conviction of an inferior court, is infected by jurisdictional error, with the consequence that it has been void from the outset, or is the delegate required to consider whether a conviction is liable to be overturned on a statutory appeal, and your Honour Justice Steward has seen that a submission of that sort was made in Parker v Minister (2016) 247 FCR 500. I do not need to take your Honours to that, it is in the supplementary joint bundle of authorities, in part D, tab 14.
Your Honours would also be well aware that if that kind of claim is made, the consequence of such an error, for the validity of the conviction, and whether any invalidity is either prospective or retrospective, is liable to vary from legal system to legal system. So, for example, in an Australian court, the possible effect of jurisdictional error will depend upon whether the conviction was entered by an inferior or superior court, see Kable (No. 2). That may not always be the case, of course, in other legal systems, so if a delegate at the port is required to have regard to those matters, it reintroduces considerable complexity into the decision‑making process.
But, for reasons which are similar to those we advance in respect of paragraph (d), we say that none of those matters is in fact required to be addressed by the delegate, and the reason for that again lies in Professor Forsyth’s theory of the second actor. Applying a similar analysis to that I identified before in respect of paragraph (d), Parliament can be taken to have proceeded on the basis that a decision‑maker will simply consider whether there is an operative convictional sentence of the relevant kind at the relevant time, and that is done by assessing whether or not a subsequent judgment of the court has reversed the conviction. They do not, in other words, consider for themselves whether the conviction was wrongly entered or affected by error, absent any subsequent judgment.
We say, that sort of approach is a familiar one. It is reflected in the line of intermediate appellate court authority in the Full Federal Court and the Victorian Court of Appeal to the effect that, where decision‑making powers are expressed to depend upon the fact of a particular conviction or sentence – which is the case here, albeit through the prism of the Minister’s state of satisfaction – the form of the legislation, itself, can be taken to demonstrate that Parliament intended the decision‑maker to act on the correctness of the conviction or sentence.
That line of authority is usefully summarised in the recent reasons of the Full Federal Court in HZCP (2019) 273 FCR 121. That is in the supplementary joint bundle of authorities in Part D, behind tab 10. It starts on page 393 of the joint bundle. But I am going to direct your Honours to the reasons of Justice Colvin which appear – starting, paragraph 180, 181.
KIEFEL CJ: Sorry, what paragraphs were they?
MR LENEHAN: I will actually start at paragraph 181, which is at the top of page 164, or 436 of the joint bundle.
STEWARD J: Sorry, what was the paragraph again? I am so sorry?
MR LENEHAN: I am sorry, Justice Steward. It is at paragraph 181.
STEWARD J: Paragraph 181, thank you.
MR LENEHAN: So, we say that his Honour there correctly summarises the effect of that authority in that paragraph and says:
In an administrative law context, some decision‑making powers conferred by legislation depend upon the fact of a particular criminal conviction or sentence. They require its existence and confer no power to go behind it in the course of the exercise of the power. In such cases, the conviction or sentence becomes a foundation upon which the decision‑maker must proceed (there may be others). The statutory authority reposed in the decision‑maker does not extend to questioning the very matter the existence of which enlivens the power conferred by the statute.
Then, in 182:
In all such instances, the legislature itself has acted upon the basis of the confidence that can be entrusted to decisions in criminal cases. It has formed the view that the fact of the conviction or sentence shall provide the foundation for the exercise of the power. The form of the legislation itself demonstrates that Parliament intended the decision‑maker to act on the basis of the correctness of the conviction or sentence.
We say, applying that approach here, paragraphs (a) to (c) would really only involve the Minister considering whether the foreign government itself – that is, by its judicial arm – had reversed its original decision, that is, by quashing the conviction. That would almost invariably be done by reference to a written decision or order of the reviewing court – compare with the position under paragraph (d), if our friends are correct – and it would not require the Minister, for himself or herself, to sit in judgment on the legality of the action performed in fact by another government.
So, in that way, we say the various limbs of the definition of “behaviour concern non‑citizen” can be seen to operate in a coherent fashion and in a way that accords with the obvious statutory purpose. That then brings me to your Honour Justice Gordon’s question about paragraph (e).
STEWARD J: Just before you answer that, I may have misheard you, I am sorry about that. But you are asking us to read (a) to (c) as being a reference to the fact of conviction but also, where prior to entry conviction is quashed ‑ ‑ ‑
MR LENEHAN: Yes, yes.
STEWARD J: ‑ ‑ ‑ we would read it as not being convicted.
MR LENEHAN: Correct.
STEWARD J: Okay, thank you.
MR LENEHAN: Your Honour has our point. So, Ms Moorcroft makes, as we understand it, a similar point to that that she makes about paragraph (a) to (c) by reference to paragraph (e) and, as your Honour Justice Gordon has noted, she draws attention to the regulations that have been made under that provision, which are said to be evaluative in nature.
The relevant part of the regulation appears in volume 2 of the joint book, tab 8 and page 135. It is clause 5.15. Our friends emphasise in that regulation the notion of reasonableness in paragraph (a) and (c). The term “bogus document” in paragraph (b) which ties into the definition of that term in section 5.1, the term “genuine visitor” in paragraph (c), and the notion of “threat to national security” in paragraph (d). Each of those is said to involve evaluative matters.
We say three things in respect of that. The first, which is the answer that I should have given to your Honour Justice Gordon before, is that paragraph (e) does not suggest that the Minister may be required to make assessments of the validity of foreign governmental action. All that it is doing is allowing for prescription of the circumstances where a person has been excluded in fact from another country. Second, the regulations made considerably after the definition was introduced in 1992 could not, of course, control the meaning of the Act.
Third, and in any event, the regulation does not require any assessment of the validity of foreign governmental action. The fact that it might require an analysis that is someway evaluative does not take things much further, because what it does not do is invite the decision‑maker to enter into the very large and complex question that I identified before. That is all I wish to say about paragraph (e).
Your Honours will have seen that Ms Moorcroft also submits that our construction should be rejected by application of the principle of legality. Your Honours have already heard some of what I want to say about that. As we understand it, that rests on the contention that the principle protects the right of a visitor to Australia to have her character assessed by reference to valid determinations of her right to hold an existing visa and have her application to enter Australia lawfully determined by valid judgments in the past. That is what is said in paragraph 73 of our friend’s written submissions.
That submission then leads me to remind your Honours of the chronology that I identified at the outset, and how it was that Ms Moorcroft came to be applying for a further visa. Your Honours will recall that her original visa was cancelled, albeit in a decision that involved jurisdictional error. We accept the result was that she continued to hold a visa at the time she was removed. But, as I said before, and see again Hicks, by operation of section 82(8) of the Act, her original visa ceased to be in effect, when she was removed, notwithstanding that jurisdictional error, and so, on any view, she required another visa in order to remain in Australia on her return.
So, considered against those circumstances, which also illustrate the broader construction point, it is difficult to see that the Minister’s construction of the Act would interfere with any relevant right of Ms Moorcroft or another person in her position. Ms Moorcroft did not acquire any right from the judgment of the Federal Circuit Court quashing the cancellation of her previous visa to obtain another visa, the need for which flowed from the Act itself. Nor, of course, as an alien, did she have any right to enter Australia and to form part of its community.
On the contrary, it is clear that Parliament could provide for deportation or removal of a person in Ms Moorcroft’s position for whatever reason it saw fit and see, for example - I will not take your Honours to it - the reasons of Justice Nettle in Falzon which your Honours have in joint bundle volume 3, tab 13, which starts at 312 at paragraph 92. I am sorry, your Honour Justice Steward, that is at (2018) 262 CLR 333.
STEWARD J: Thank you.
GLEESON J: Mr Lenehan, section 32(2) says:
A criterion for a special category visa –
and so on. Is that the only criterion for that visa?
MR LENEHAN: No, no it is not, your Honour. There are then further criteria in the regulations. I am not sure that your Honours have those. Can I check that and identify those for your Honour? We say from that the only relevant right that Ms Moorcroft possessed was for her application for a further special category visa to be determined lawfully and that invites the question on which the principle of legality has absolutely nothing relevant to say as to whether the relevant visa criteria, with your Honour Justice Gleeson’s question in mind, were correctly applied.
What Ms Moorcroft is seeking to do is to extend that principle to the content of those criteria, but the point that I made before, Parliament’s well‑established freedom to select criteria for admission on whatever basis it thinks fit could not impinge upon any relevant right that Ms Moorcroft has identified. As I mentioned earlier, it is in fact Ms Moorcroft’s proposed construction that stands to relevantly affect the right to liberty by prolonging the time in which people may need to take – remain in immigration clearance or immigration detention and so, for that reason, we say that principle to the extent it applies at all, assists us.
Can I then move to a point that is made about section 210 which deals with the liability for costs of removal and that argument goes, as we understand it, this way. That provision also uses the term “removed”. It is unlikely that Parliament would have intended to create a liability for persons who are removed unlawfully and that, our friends say, tells you something about the similar term used in the definition of “behaviour concern non‑citizen”.
Then the other aspect of their Honours’ reasons at paragraphs 57 and 58 make a different point. They are looking to refer back to Professor Forsyth’s analysis, the other side of the equation, so looking at the administrative powers that were being exercised by the Minister here. Their Honours say at the end of paragraph 58:
The Minister’s administrative decision, which was made on the basis of all the material which was then before the Minister, is of a very different nature to a statutory deeming provision such as s 80 of the Government Railways Act.
The provision in issue in Cavanough. We say that further supports the point that your Honour Justice Keane made and illustrates how one applies Professor Forsyth’s to that idea.
We also adopt what your Honour Justice Gordon said, referring to Cavanough itself, and so the passage that your Honour directed my friend to at 225 refers to Dr Drury’s Case and your Honours know that the general principle from that case is that if acts are done in accordance with a judicial order which is later set aside they are protected from possible tortious liability, at least, according to one line of authority, as acts done in the execution of justice which are compulsive. So, the person acting on the faith of such an order was entitled to assume that it was validly made until set aside.
Now, that is the line of authority that, as Mr Keim says, is traced by Chief Justice Allsop in the New South Wales Court of Appeal’s decision in Kable, which your Honours have. But those, we say, and also the reasoning in Parker, are just further examples of the point made in the joint reasons in Kable (No 2). In any developed legal system, there comes a point where decisions made in the exercise of judicial power are given legal effect despite being later set aside or reversed and that, we say, is how your Honours approach subparagraphs (a) to (c).
Now, Mr Keim, perhaps generously, attributed to me some submissions that I made on section 503(2). In fact, I neglected to address that provision, so I might briefly say what I want to say now. That, of course, is the exclusion provision and 503(2) is dealing with the period of exclusion. It commences when a person is removed.
But the more important aspect of the exclusion power is in subsection (1). The entire power rests on certain classes of decision – cancellation or deportation decisions – and so naturally one looks at that and reads it to be referring to valid decisions. So, the context does suggest that one is there dealing with removal following, in the case of cancellation, a valid exercise of the cancellation power.
That simply is a further illustration of the point that I made before by reference to McGraw, that is, the context may tell you otherwise when you are looking at similar words and phrases in the same Act. We make the same point as your Honours heard regarding section 202.
Mr Keim also made some submissions regarding Professor Forsyth’s analysis itself, and we understood him to suggest that the examples given at 1866 were not close to this case, and certainly the tax example is not close, but his second example, which is to Wicks, comes closer, and then closer again is the example that I mentioned before, that is the one that Justice Gageler identifies in Ruddock v Taylor – sorry, in Kable (No 2) at paragraph 52 referring to Ruddock v Taylor, that is, an invalid cancellation decision can enliven the power of detention in section 189. So, we say that what was said by Mr Keim in that regard certainly does not detract from the point that we make on the basis of Professor Forsyth.
Now, can I mention one brief point about the first aspect of the oral outline we just noticed while Mr Keim was in oral address? We think that we may have been misunderstood. We are certainly not saying that it is necessary that an act of removal be quashed. The point is that such an act cannot be quashed. It is a nonsense to talk about the quashing of a physical act.
Some submissions were also made about whether or not it was practical for Ms Moorcroft to enjoin her removal and Mr Keim sought to leverage what we had said about immigration clearance and its time constraints and say that that was an obstacle to Ms Moorcroft doing that. Of course, the period that Mr Keim referred to involved things other than immigration clearance. Her visa was refused, she was then detained. So, it is not right to say that somehow one looks at the limited time for immigration clearance and then concludes something about the practicality of that sort of procedure.
It will, of course, be difficult but we do say that that is a course that could have been taken and that one looks to that and also the statutory escape‑valve procedure and I am going to come back to what your Honour Justice Gleeson said about clause 5.15A. All of that indicates that the submissions regarding hardship do not go anywhere.
We say the same about the submissions that are made on the principle of legality and your Honours quite specifically asked Mr Keim to identify what was the relevant right. We still do not understand how it is that he identifies that and the submission that was made seems to us to be circular. So we do embrace what your Honour Justice Keane said. One has at most a right to have a visa application considered, but you do not get a visa under the Act unless you meet the criteria. There is no right under the statute to a visa otherwise.
We say, for that reason, the principle of legality is not engaged. We make a similar point about the reference in the final sentence of our friend’s
outline to human rights. There has likewise been no specific identification of what those rights might be.
That then leaves me with your Honour Justice Gleeson’s interesting point about 5.15A(2) and we do say that the reference there to exclusion and likewise the reference to exclusion in paragraph (e) of the definition is sufficiently broad to encompass the notion of removal or deportation. So that is in fact an example of Parliament using what I have called the statutory escape valve in a way that would be potentially applicable to this case. But Your Honours know that we put that point as a broader question of construction and so whether it is or is not is not strictly decisive of the issues that arise here.
Can I finally say something about the question that Justice Steward asked me during my oral address, to which I think I gave an inadequate answer. Your Honour asked, where can a visa application be made. I think I answered, fudging somewhat, generally only in Australia, and typically in immigration clearance.
Your Honour will have seen that there are provisions in the regulations, 1219, which anticipate that it may be elsewhere. It refers to, in subsections (aa) and (ab) to a person being in immigration clearance outside Australia. That is to be understood by reference to 1219(3), which talks further about:
An application must be made at the place, and in the manner, (if any) specified by the Minister in a legislative instrument made for this item under [the] subregulation ‑
We have not given your Honours that legislative instrument. With your Honours’ leave, we can provide it by the close of business today ‑ ‑ ‑
KIEFEL CJ: Yes, thank you.
MR LENEHAN: What all that means is that where the Minister declares a flight to be a pre‑cleared flight under section 17 of the Act, then immigration clearance can take place to that limited extent outside Australia, otherwise it is within. Unless your Honours have any further questions, those are the submissions that the appellant makes in reply.
KIEFEL CJ: Thank you. The Court reserves its decision in this matter and adjourns to 9.30 am tomorrow.
AT 1.15 PM THE MATTER WAS ADJOURNED
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