Plaintiff M47/2012 v Director General of Security

Replacement Transcript

[2012] HCATrans 145

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M47 of 2012

B e t w e e n -
PLAINTIFF M47/2012
Plaintiff
and
DIRECTOR GENERAL OF SECURITY
First Defendant
THE OFFICER IN CHARGE, MELBOURNE IMMIGRATION TRANSIT ACCOMMODATION
Second Defendant
SECRETARY, DEPARTMENT OF IMMIGRATION AND CITIZENSHIP
Third Defendant
MINISTER FOR IMMIGRATION AND CITIZENSHIP
Fourth Defendant
COMMONWEALTH OF AUSTRALIA
Fifth Defendant

FRENCH CJ
GUMMOW J
HAYNE J
HEYDON J
CRENNAN J
KIEFEL J
BELL J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 19 JUNE 2012, AT 10.15 AM

(Continued from 18/6/12)

__________________

FRENCH CJ: Yes, Mr Niall.

MR NIALL: May it please the Court, may I announce my change of appearance, that I also appear with MS K.L. WALKER, if the Court pleases. Before coming to the third limb of the case, the procedural fairness argument, can I just touch upon two matters arising from yesterday, both of which we have sought to deal with by way of short note. The Court should have before your Honours a note entitled “Applicant’s” – should be “Plaintiff’s – “note on review of decisions referred to in s500(1) of the Migration Act 1959(Cth)” and this endeavours to answer in more detail than I addressed yesterday some questions from your Honours about the nature of the review.

In paragraphs 3 and 4 we deal with the nature of the review by reference to the decision of this Court in Shi. In paragraphs 5 to 8 we identified specific statutory provisions that the AAT has to deal with confidential information relating to security. Can I just note paragraph 8, if the Court pleases, which depends upon the source of the statutory power to rely on the three exclusionary provisions. If it is available under character provisions under 501 and we give a reference to NAGV 222 CLR 161 at paragraph 57, then there are some additional provisions in relation to confidentiality.

The remaining part of that note, paragraphs 9 to 11, address a question that your Honour Justice Bell asked me yesterday about the ability of an appeal under section 44. There is no appeal under section 44, but there is judicial review replicating this Court’s jurisdiction under 75(v) to the Federal Court rather than a Federal Magistrates Court and the Federal Magistrates Court is excluded. We have attached some relevant provisions of the AAT Act and a reference in paragraph 6 to the judgment of Justice Brennan in Re Pochi.

The other issue that we sought to deal with by way of a note and it is responsive to the Commonwealth submissions in relation to Article 32. It may not be relevant depending on the approach to our first argument but we address it by reference to the note to seek to clarify the operation of Article 32. They are the matters I wanted to address before coming to procedural fairness. Can I deal with our attack on the adverse security assessment by identifying a number of steps to the argument and then seek to develop just three of those steps in oral argument.

The first step in the argument is that ASIO, in making a security assessment under the ASIO Act, owes a duty to accord procedural fairness. The second step in the argument is that the content of that duty has to take into account first the statutory schemes, and we note the plurality there because ASIO Act itself relates to the operation of another scheme by reference to a prescribed administrative decision. So the first is the statutory schemes. The second is the consequence of the rights and interests affected and the third is the public interest in the protection of security, all of which relate to content. The third step is that the content includes that the applicant or person affected be directed to the critical issues on which the decision turns and have disclosed to them any adverse material.

The next step in the argument operates in relation to a qualification of those two steps and the step is this, that if the benefit of those protections intersect with the public interest in security, the two must be reconciled and the process of reconciliation includes, in our submission, an active consideration as to what extent disclosure of issues and material can be disclosed so that the decision‑maker has to turn their mind to that question. The second process of reconciliation is that disclosure must occur to that extent that it can be permitted. The third is that procedure has to be moulded in a way which would accommodate, to the extent possible, the interest in procedural fairness. In that last regard, the international cases referred to by the Human Rights Commission at paragraphs 37 to 53 of its submissions are relevant.

Applying those in the next step of the argument, the fifth step, is that there is no evidence before the Court that national security issues prevented disclosure to the plaintiff of either the critical issues on which the assessment was made or any adverse material. There was, thus, no occasion to circumscribe the full expression of procedural fairness in favour of the plaintiff. So this was not a case where there was any necessary contraction of the two fundamental provisions of procedural fairness by reference to national security. The last and final step is that in the light of that content, the plaintiff was denied procedural fairness by failure to direct his attention to the critical issues.

Can I expand upon three of those steps. The first is the reference to the statutory scheme in particular circumstances. It is necessary, in our submission, as the judgment of the court in SZBEL v Minister 228 CLR 152 made clear, at paragraphs 26 to 32, it is necessary to approach procedural fairness within the particular statutory framework but including the particular circumstances of the case. Your Honours will see that in paragraph 26, the reference to the “statutory framework” and the particular “facts and circumstances of the particular case”.

Now, the statutory framework here is that provided by the ASIO Act and, in particular, section 37 which identifies the functions of the organisation identified in paragraph 17(1)(c), that one of the functions of the agency includes “furnishing to Commonwealth agencies of security assessments” and subsection (2) provides that:

An adverse or qualified security assessment shall be accompanied by a statement of the grounds –

and all information other than information –

which would, in the opinion of the Director‑General, be contrary to the requirements of security –

That section directs attention to the definition of “adverse security assessment” which your Honours will find at section 35. Your Honours will see the connection between the opinion of the organisation, which is in paragraph (a) of adverse security assessment, and:

a recommendation that prescribed administrative action be taken or not taken –

That, in turn, directs attention to the definition of “prescribed administrative action” which includes in paragraph (b):

the exercise of any power, or the performance of any function, in relation to a person under the Migration Act ‑ ‑ ‑

HAYNE J: Why are those provisions engaged? Why does not 36 exclude them, “other than subsections 37(1), (3) and (4)”?

MR NIALL: It does exclude. Section 36(b) excludes the provisions in relation to the statement of grounds and the information, but it does not obviously exclude the nature of the adverse security assessment and the link with prescribed administrative action. Now, the exclusion in section 36 by reference to security assessments in paragraph (b) in relation to a person who is not a citizen and not a permanent visa holder excludes the obligation to give a statement of grounds and provide information.

The defendants contend that affects procedural fairness but, in our submission, it is neutral or irrelevant to procedural fairness. Section 37(2) is no more than a statement of reasons and the obligation to give reasons does not affect, in our submission, the prior obligation before the decision is made to give procedural fairness. So it is not possible to reason back from the absence to give reasons, an absence or a qualification on the obligation to give procedural fairness and, although not on our authorities, the judgment of the Court in Public Service Board v Osmond 159 CLR 656 indicated that there is no connection between procedural fairness and an obligation to give reasons.

In that context, the question of the content of procedural fairness also is influenced and affected by the powers to be exercised under the Migration Act because there is a link in the ASIO Act directly in prescribed administrative action. In this context, the provision of an adverse security assessment goes to the status of the person, it may affect the ability to get a visa and, depending on our first argument, it may go directly to liberty. In those circumstances, the statutory context, in our submission, places a high degree of importance on procedural fairness. That being so, the issue is, in a given case, to what extent it needs to be reconciled with the public interest in national security.

In our submission, the two rights or interests – that is the right and interest of procedural fairness and the right of the public interest in national security – have to be reconciled and it does not mean that simply because national security may be involved that procedural fairness must be truncated.

In that regard, the judgment of this Court in VEAL 225 CLR 88 is relevant. That was a decision of the Court relating to the provision, effectively, of adverse material. At paragraph 24, in examining the content of procedural fairness where - that was a case of an informer, effectively, which may give rise to the considerations of public interest immunity and the like - at paragraph 24 the Court indicated that in the context of the Refugee Review Tribunal:

it must be recognised that just as courts mould their procedures to accommodate what has become known as public interest immunity, so too the content of the Tribunal’s obligation to accord the appellant procedural fairness may be informed by those same considerations.

At 25 the Court notes:

The existence of that public interest is not to be understood as requiring the conclusion that there is an absolute rule against an administrative decision‑maker disclosing to a person, whose interests may be affected by the decision that is to be made, information that has been supplied by an informer. Nor does it necessarily mean that there is an absolute rule against disclosing the identity . . . The application of principles of procedural fairness in a particular case must always be moulded to the particular circumstances of that case.

Over at paragraph 29, in relation to the obligation to give the letter which was a “dob‑in” letter, in relation to the applicant for refugee status, the Court said, about line 4:

To give the appellant a copy of the letter or tell who wrote it would give no significance to the public interest in the proper administration of the Act . . . It is in aid of that important public interest that, so far as possible, there should be no impediment to the giving of information to authorities about claims that are made for visas. That public interest, and the need to accord procedural fairness to the appellant, could be accommodated.

For example, in the next sentence:

by the Tribunal telling the appellant what was the substance of the allegations made in the letter and asking him to respond –

So, in our submission, even where procedural fairness is engaged in the context of national security, it is necessary for the principles to be applied in a way which accommodates both interests. Now, in our submission, this case is not one where any significance should attach to the question of national security. We make that submission because the evidence does not disclose that there were any national security considerations which prevented the full expression of procedural fairness.

Can I take the Court to the evidence of Mr Irvine, the Director General, in the amended special case book starting at page 128 where the Director General identifies, in paragraph 3, his appreciation of the grounds submitted by the plaintiff included a breach of natural justice and at paragraph 4 it is noted that the security assessment:

is not based on any information about the plaintiff received from other irregular maritime arrivals or detainees.

The reason for that is that the interview proceeded on a premise that the officers appeared to have such information. I will take your Honours to that passage in a moment. Then the Director General goes on to say that based on the investigations, he assessed the plaintiff was a voluntary and active member and then (b) relates to mendacity and (c) relates to current activities and then paragraph 5 deals with the assessment.

Nowhere in the affidavit or in the agreed special case is there any fact which identifies that national security was a reason impeding the discharge of the obligation of procedural fairness. Now, that fact, in our submission, is significant when one looks at how this issue and area has been examined in different cases and in those cases evidence has been given either in support of public interest immunity or in support of a submission going to the content of procedural fairness that national security was a relevant fact in issue.

FRENCH CJ: Can I just ask you to have regard to paragraph 34 of the defendant’s submissions as to the content of procedural fairness, paragraph 34.1 through to 34.3, and indicate specifically what you disagree with there?

MR NIALL: In our submission, the discharge of procedural fairness is not met simply by an invitation to comment on the general issue of concern to ASIO. It has to be more specific and particularly directed to the issues which the statute required ASIO to consider, bearing in mind the width of the definition of “security” and that what ASIO is interested in or what the statute is interested in is not past activity and not mendacity but what it shows about current risk and, in our submission, what occurred in this case was a generalised, at best, a generalised identification of issues without any meaningful content for the plaintiff to respond to and, in our submission, that was insufficient to discharge the obligation of procedural fairness.

FRENCH CJ: You would agree with 34.3, I imagine?

MR NIALL: With this qualification, with respect, your Honour. The question of whether national security required that such information not be disclosed may in a given case require some procedure to mould or deal with the issue that disclosure could occur in some different way. But in general terms, we do accept that national security may prevent disclosure of material which would be credible, relevant or adverse. But, in our submission, that is not this case, because the evidence of the Director General does not go that far, in fact, does not go to that topic at all.

The significance of that evidence and the way the affidavit or the material in the affidavit can be contrasted with the affidavit in other proceedings – and just to return to the Chief Justice’s question, we address that issue in paragraph 17 of our reply which seeks to engage this point, that this is simply not a case where there is some particular national security issue which prevented ASIO descending to sufficient detail to allow the plaintiff to respond. Can I just identify ‑ ‑ ‑

HAYNE J: Do you accept that the assessment that was made as recorded at 129 of the special case book was an assessment founded on what the plaintiff had done, what the plaintiff knew and what the plaintiff now believes and intends?

MR NIALL: Not in relation to the last point, if the Court pleases.

HAYNE J: What is additional?

MR NIALL: In our submission, the interview did not direct attention to the question of what the plaintiff’s current position would be in relation to Australia and the significance of that in this context is this. The delegate found that the plaintiff had a well‑founded fear of persecution, not just at the hands of the Sri Lankan Government, but also at the hands of separatists. So that raised the express issue that one of the things that the plaintiff was escaping from was the Tamil separatist movement as it had or did not have a relationship with LTTE. So there was a basis upon which his fear was assessed as one escaping from the LTTE and at the interview at page 30, which is application book page 104, the interviewer, right in the middle of the page said:

But were you fleeing the LTT or were you fleeing the government?

The answer was “Both”. It is not suggested in the interview that that particular issue was false, although in fairness throughout the interview it is clear that the truthfulness of the plaintiff was a big issue at interview, but that issue was not dealt with. At page 46 of the transcript, page 120 right at the top of the page, the interviewer raised the proposition that:

When you were in Malaysia at the end of the war and the LTT was defeated, did you think about going back to Sri Lanka then? Knowing that the LTT weren’t there and you couldn’t be forced into being a part of it anymore.

So the issue of what activities were currently in consideration of ASIO was not addressed at all in a context where the factual matrix was completely uncertain. So, in our submission, the plaintiff was plainly being told your obligation is to tell us the truth and the full picture but was not given any focus at all as to what the current threat was in relation to the plaintiff’s activities, either directly or indirectly, should he be allowed to remain in Australia.

In our submission, it is too generalised to simply say that you have got to tell us the truth without identifying the risk that is said to be occasioned by the plaintiff either directly or indirectly. It is not, in our respectful submission, enough to say that your past practices and our inability to believe you identifies what that risk might be in a way that could be responded to. For example, the response that the plaintiff might have nothing to do with his credit but entirely to do with material about the operation of the LTTE since its defeat in Sri Lanka. All of those issues would have gone to the question of whether there was a risk directly or indirectly to Australian security.

Now, there is nothing, in our respectful submission, which circumscribed the ability of ASIO to direct attention to those questions and, we repeat, the difference in this case than the approach taken in other cases. Can I take the Court to the decision of the Full Court of the Federal Court in Leghaei v Director‑General of Security 241 ALR 141. This was a decision where the issue of national security was dealt with in this way. The proceeding was conducted at first instance on a confidential basis with information being given to counsel for the plaintiff but not the plaintiff and his Honour Justice Madgwick provided two sets of reasons, a confidential set of reasons and an abridged set of the reasons.

There was no claim of public interest immunity but it was dealt with by way of confidentiality. Part of the evidence in the proceeding was the evidence of the Director General that he had given consideration to whether there could be disclosure of further information and concluded there could not. If your Honours go to paragraph [29] at page 145 where there is a reference to the primary judge’s reasons where his Honour noted:

the opinion that in this case, the duty to afford procedural fairness would be discharged by evidence of the fact that the Director‑General had given genuine consideration to that question and had decided against disclosure in the interests of national security: see [86] of the non‑confidential reasons.

The Full Court picked that up again at paragraph [56] in addressing the question of “The weight to be given to the Director‑General’s evidence”, and their Honours identify in paragraph [57] the observation of Justice Brennan that:

the court is “ill‑equipped itself to evaluate pieces of evidence obtained by ASIO” –

and reference to some UK authority, including the speech of Lord Nicholls of Birkenhead in A. Over at paragraph [61] the Full Court noted:

In coming to this view –

expressed by his Honour, to accept the evidence of the Director‑General, their Honours note –

the primary judge did not simply rubber stamp the opinion expressed by the Director‑General. He satisfied himself that the Director‑General had given personal genuine consideration to the question of whether disclosure would be contrary to the national interest –

At paragraph [62] there is a reference to the judgment of Justice Lockhart in Amer where “there is no perfect solution” but their Honours go on to say:

We are also satisfied that the Director‑General gave genuine consideration to the question of what disclosure could be made –

So that is a case where the Director General goes on evidence to say, “I have given consideration to the question. No more can be disclosed” and the court considered the evidence in that context. The other means by which the same principles have been applied is by means of public interest immunity, which produces a different consequence of taking the relevant material out of the litigation.

Your Honours will see that in Sagar v O’Sullivan 193 FCR 311. This is the judgment of Justice Tracey to review adverse security assessments in relation to two refugees from Iraq. Your Honours will see various matters set out, but there had been earlier a step in the litigation where the applicants had sought discovery of the adverse security information and your Honours will see that perhaps at paragraph 44 where what happened was that Justice Sundberg ordered discovery but then withheld inspection on the basis of public interest immunity of the documents there set out in paragraph 44, and Justice Tracey deals with the reasons of Justice Sundberg at paragraph 46, that:

Sundberg J determined, having examined the discovered documents, that the results of complex security assessments were recorded in a final appreciation . . . His Honour further found that, when the investigative branch of ASIO assesses an individual to be a threat to Australia’s national security, the Director‑General is so advised –

and then went on to say, by reference to Justice Sundberg’s reasons at 47, that:

Sundberg J was satisfied, on the evidence placed before him by the Director‑General that, “[i]f documents . . . were required to be produced, ASIO would be giving information about its knowledge, assessments and methodology to the very people to whom it is most important that national security information is not disclosed” –

Accordingly, his Honour upheld a claim of public interest immunity. So there are different means by which the question of national security might be resolved by a claim on evidence by the Director General that national security is relevant to the content of procedural fairness, either going to procedural fairness or going to public interest immunity.

Now, neither of those courses were taken by the Director General in this case and unconstrained by those issues, in our submission, there was a lack of opportunity to respond to the critical issues in the decision including, in our submission, that the plaintiff remained supportive of the use of violence to achieve political objectives and is likely to continue to support activities of security concern in and from Australia. In that regard, the ability of ASIO to make no more than generalised observations, largely based on past conduct, presents no opportunity to respond and it is not a case where the subject matter reasonably inheres in the legislation so that the applicant ought know what the issues are that he or she should address.

The reason for that is that the definition of “security” is so broad and the potential issues so wide that it is difficult if not impossible for a person to know with any degree of fairness to where they should be directing their evidence and submissions. Yesterday, the Court asked about the definition of “security” in the ASIO Act in its correspondence to the Convention. There is a reference in the reasons for judgment of his Honour Justice Mason in Woodward 154 CLR 25 at page 60 where his Honour at page 60, is dealing with the question of security and his Honour notes some unusual complications – three lines down:

the expanded definition of “security” in s. 4 and the associated definition of “subversion” in s. 5 extend to a wide variety of matters . . . The second is that security is a concept with a fluctuating content, depending very much on circumstances as they exist from time to time –

Now, in our submission, that is readily explicable but it has significant ramifications for procedural fairness because the potential breadth of issues is wide that a plaintiff or an applicant cannot tether his responses in a meaningful way to the issues. That is not answered by saying “We do not believe anything you say, so there was no point giving you any more procedural fairness”, nor is it answered by saying that the process of security assessment is fluctuating so that ASIO is always in a process of investigation.

What seems to be said against us is that given the nature of the task, ASIO is always an investigative agency. You cannot expect an investigative agency to tip its hand to those that they are investigating and, therefore, there is no procedural fairness. But, in this context, ASIO moves from an investigator to relevantly a decision‑maker at the point at which the process crystallises in an adverse security assessment. By that point, in our submission, ASIO is required to identify in a fair way, subject to any reconciliation, the critical issues in adverse material.

The process has to respect the process of investigation and it is similar to the way this Court dealt with an investigation by the National Companies and Securities Commission in NationalCompanies and Securities Commission v News Corporation (1984) 156 CLR 290 at 323, where the Court indicated that investigators should not be expected to tip their hand, but there must be a point where that crystallises into a decision which affects rights. Before that occurs, to the extent required, there has to be some process to bring it back to the critical issues.

In our submission, that did not occur and the plaintiff was left with no more than a generalised series of concerns which were not directly related to the issues that the ASIO Act required attention. So, in our submission, the decision ‑ ‑ ‑

GUMMOW J: What do you say, looking at the Director General’s affidavit, paragraph 4, should have been put to your client and, if it had been put to your client, what would you client have said about it? You cannot criticise the Director General for acting in a remote way when your submissions are remote too. Natural justice has to be intensely practical. What was your client shut out of disclosing?

MR NIALL: There was no exploration with the plaintiff about the matters in paragraph 4c. There was no meaningful content about the extent to which he remains supportive of the use of violence to achieve political objectives and that he was likely to continue to support activities of security concern. Now, there was no identification and the plaintiff still does not know, other than in that general language, what that means. In our submission, it is something which could plainly be met by evidence or submission directed to the question of ‑ ‑ ‑

GUMMOW J: What would your client have said about it?

MR NIALL: In relation to the existence of the ‑ ‑ ‑

GUMMOW J: Natural justice is all about having been denied an opportunity to say something.

MR NIALL: Yes, we accept that. In our submission, the issues would plainly be directed to the extent to which the LTTE remains something which he is supportive of and remains an organisation, directly or indirectly, in respect of which could pose a security concern. That included information, not from him alone, but from any other source directed to the issue of the current status, legal and otherwise of the LTTE in Australia and in other places. Indeed, the interview proceeded on the basis that the LTTE had been defeated.

HAYNE J: Did not the interview also proceed on the basis the plaintiff said he had been pressed into service with that organisation, he did not support it?

MR NIALL: He did.

HAYNE J: So what more could be said in respect of 4c?

MR NIALL: Well, in relation to what the current LTTE position is, which remained a critical issue of concern as it now appears to the Director.

BELL J: This was a lengthy interview, the entire focus of which was on the plaintiff’s connection with the LTTE where, on a number of occasions, it was made clear to him that the interviewing officers did not accept the truthfulness of the account that he was giving by reason of inconsistencies with earlier statements and the like. In those circumstances, given the repeated emphasis by the interviewers on the need for him to give a truthful account of his association, it is not clear to me what, in practical terms, would have been the different outcome had the officer said “I want to direct your attention to the suggestion that we may consider that you are supportive of the LTTE and its use of violence to achieve political objectives and will continue to be whilst you are a member of the Australian community”.

MR NIALL: In our submission, the question of his past involvement with the LTTE which was plainly a subject of direct subject of questioning was clearly identified by ASIO that the officers did not accept the answers that he was giving. We accept that. But in the context of an acceptance by the delegate of a departure based on fear from the LTTE or paramilitary groups and the evidence of the – not the evidence, but the questions on the basis that you fled from the LTTE and that the LTTE had been defeated, there was a very ambiguous premise about the current involvement and the current operations of the LTTE in relation to activities of security concern in and from Australia which were not identified at all in a way which, in our submission, the plaintiff could have answers.

BELL J: This is an assessment that has been conducted by people who presumably have some basis for making the assessment, apart from the answers that the plaintiff gives in the course of the interview. Those matters would include some consideration about the significance of the disbandment of the LTTE.

MR NIALL: But none of those issues were raised with the plaintiff, in our submission, and they ought to have been and they are a different field of inquiry than the ones that were directed to the plaintiff about his involvement prior to his departure from Sri Lanka in 2006.

BELL J: Just for practical purposes, what do you say the plaintiff might have said in answer to a question framed in terms of paragraph 4(c) of Mr Irvine’s affidavit?

MR NIALL: That he was not and would not continue to support the activities in Australia, that things had fundamentally changed in Sri Lanka, that the context was fundamentally different in the context of the civil war which had now finished and that in a different environment things were completely different, including the disbandment of the LTTE. So, in our submission, there was a clear denial of procedural fairness and the decision was affected by that error.

KIEFEL J: Could I take up a matter in relation to the ASIO Act and the Migration Act. Firstly the ASIO Act. It provides for a review in relation to security assessments but by the operation of section 36 does not extend, or excludes, review in relation to the exercise of a power or the performance of any function under the Migration Act. So that would seem to exclude a review of an assessment for the purposes of the regulations, the criteria.

MR NIALL: Yes, your Honour.

KIEFEL J: However, it preserves an assessment provided for the purpose of a deportation under section 202 of the Migration Act.

MR NIALL: Yes, your Honour.

KIEFEL J: Which a decision to deport under that section where it is made on the basis of an ASIO assessment. So there is some interaction between the ASIO Act and the Migration Act at least on that topic where it has a sufficient connection with the ASIO Act and the assessment made under it.

MR NIALL: Yes, your Honour.

KIEFEL J: Under the Migration Act a review is given not in relation to an ASIO assessment, I do not think, but pursuant to section 500, as you have referred, where there is a deportation on another basis, on the basis of crimes having been committed under section 501 because of the failure of the character test or a refusal based on the articles which include matters of security. So the Migration Act provides for reviews which cover some different topics and may overlap with a topic which arises under the Convention.

MR NIALL: We accept, your Honour, that the process, for example, of relying on one or more of the Articles of the Convention, which overlaps the ‑ ‑ ‑

KIEFEL J: No, I am not interested in the Convention. I am just interested in what the Migration Act provides and what the ASIO Act provides.

MR NIALL: Yes, sorry, your Honour. We accept ‑ ‑ ‑

KIEFEL J: And whether or not one can discern from this any sensible scheme about how and when reviews are to be given and, in particular, where the regulation fits in and why is that not reviewable when we see reviews provided either in relation to ASIO assessments when they are going to lead to removal by deportation or where questions of security or risk are addressed?

MR NIALL: In our submission, some of the issues arising in a security assessment will be dealt with in the AAT directly under the Migration Act. So it is necessary to read the two together in relation to review and that at that level, some of the protections of the person will be provided not in the ASIO Act, but in the Migration Act.

KIEFEL J: Yes. No, I follow that, but I am trying to make some sense of how the two Acts work together and whether or not one can discern from that any intention about the circumstances in which reviews should be provided and whether or not the regulation simply stands apart inexplicably having no review attached to it.

MR NIALL: The way the criterion is expressed as a negative, the question is whether that criterion was satisfied, which depends on the existence of the fact of whether there was an adverse assessment or not rather than the assessment itself and so imported as a criterion may limit the review and that may lead one of the difficulties that I addressed yesterday about reconciling the criterion with section 36, but to put the two Acts together ‑ ‑ ‑

KIEFEL J: Or with section 65.

MR NIALL: And section 65.

KIEFEL J: Perhaps the focus should be on section 65.

MR NIALL: Section 65 framed by reference to satisfaction based on the criterion and if the criterion is expressed in that way, it intersects with the satisfaction which is expressed in 36 and picked up in section 65 and leads to the potential conflict.

KIEFEL J: Well, section 65(1)(a)(iii) requires, if one puts the requirement of the criterion out of the picture for the minute, requires the Minister to be satisfied whether or not a grant is not prevented by special provisions such as section 501, which involves a review process, we know, “or any other provision of this Act”, and there would be other provisions including that by which the conventions are brought in and there are review provisions there, “or of any other law of the Commonwealth”, and here is the curiosity. The ASIO Act does not itself say that the assessment takes effect under that Act but it comes in through the regulations into the Migration Act.

MR NIALL: That is right, yes.

KIEFEL J: But it puts in question what the question is under section 65(1)(c)(iii), does it not, because, as you have touched on in your submissions, the Minister has to determine and be satisfied about certain matters and also has to consider whether a grant is prevented.

MR NIALL: Yes, in relation to 501 or other provisions of the law of the Commonwealth, but, in our submission ‑ ‑ ‑

KIEFEL J: So then you have the curious situation where the grant might be prevented by something provided by regulation but which is not the subject of any facts known to the Minister or any review under the Act.

MR NIALL: That is so.

KIEFEL J: Or any review under the Act.

MR NIALL: That is so and one process of reconciling that is the non‑intersection with protection obligations in this particular case, but if you do have a criterion which is not so much predicated on something that the Minister can be satisfied about as to substance but just the existence of the fact, then there may be nothing wrong with that for a particular class of visa. But there is something wrong with it in relation to section 36 which is based at the primary criterion satisfaction as to protection obligations.

CRENNAN J: It may be reconciliation is not the answer, Mr Niall. That is to say, you might need to think more about that regulation and how it operates, having regard to the aspects of review which Justice Kiefel has been just putting to you.

MR NIALL: Yes, your Honour, and if it is impossible or repugnant then 4002 is alien to the scheme because it prevents the protections which the Act operates. If there is no process of reconciliation, ultimately, then we do say that 4002 cannot sit with the scheme as something authorised by the general language of 31(3) sitting with section 65.

KIEFEL J: That is a nice “if”, but what do you actually say about it?

MR NIALL: We do say that, your Honour.

KIEFEL J: When did regulation – when did the criterion come in through the regulations? Do you know that offhand?

MR NIALL: The history of it is picked up at footnote 77 of the defendant’s submissions, your Honour, page 14.

KIEFEL J: Thank you. Is there any explanation provided for it at the time, do you know?

MR NIALL: I do not recall whether there is any extrinsic material which would explain its original insertion at 4002.

KIEFEL J: It had a similar provision.

MR NIALL: We do say directly in our reply submission at paragraph 8 that if it does and it may be avoiding the scheme then it is repugnant to the scheme and not supported by 31(3).

KIEFEL J: Now, you did make some submissions yesterday to show that it might have an operation but which was not – but which did not cut across or detract from the operation of the scheme of the Act as you put it forward. Would you mind summarising that for me because I had a little difficulty understanding.

MR NIALL: Yes, your Honour, because the scheme of including the satisfaction as protection obligations and non‑removal by reading 198 as preventing removal means that Australia remains able to give effect to the satisfaction as protection obligations notwithstanding 4002.

HAYNE J: I wonder whether this does not simply present a question for the manner of administration of the Act rather than any question ‑ which I think is not raised either in your originating process or in the special case ‑ about the validity of 4002. Is there not a question about administration of the Act that is thus presented? If those administering the Migration Act depend only on 4002 then, on one view of the way in which the Act operates, the view you advocate, but not the view the Commonwealth advocates, that person cannot be removed.

By contrast, if the Act is administered in the manner contemplated by 500(1)(c) in which a decision is taken squarely about whether Articles 32 and 33(2) are engaged, there can be review, review of the merits, that is, the merits of the decision whether there is a national security risk or threat to public order and, as I understand it, you accept that if there is a decision founded on 32 and 33(2) there can be removal of that person, the person can be expelled, notwithstanding that he or she is found to be a refugee. Is that right?

MR NIALL: Yes, your Honour.

HAYNE J: Now, whether the presence of 4002 presents a question of administration or a question of validity, at least as the process that your side has presently relied on, I think the only live question so far is one of administration, not one of validity; perhaps I am mistaken.

MR NIALL: Well, in our submission, the special case is capable of supporting a finding of invalidity in relation to 4002, and we ‑ ‑ ‑

FRENCH CJ: Not in terms of relief, this must be in terms of a step to some proposition that goes to the relief, is it?

HAYNE J: I do not think your originating process seeks any declaration as to invalidity. I think the opposite party might be entitled to a bit of notice that that is an issue.

MR NIALL: In our submission, the question is one of either reading 4002 within it or outside of the scheme. Our submission is that it can be read in the scheme in the way that we identified yesterday and, as we say in our

reply submission, if it cannot it is repugnant to the scheme and we would seek orders in relation to the validity of the declaration of 4002. Now, if that requires us to identify that as a particular relief claim we would seek leave to do so.

GUMMOW J: Is there not a Project Blue Sky question of reconciling the power in 31(3) with the specific provisions in 501?

MR NIALL: Yes, your Honour, and ‑ ‑ ‑

GUMMOW J: How is that achieved?

MR NIALL: By not permitting a regulation which allows for a decision relying on those three Articles to be done not by dint of the satisfaction of the Minister by simply the non‑existence of a particular assessment, in our submission, the two cannot sit together, but for the reasons that it may be possible nonetheless to identify a criterion that disentitles the person to a protection visa but which does not enable 198 to operate, to refoule or to prevent the operations of 500. So we do submit that if the reconciliation which we have endeavoured to achieve cannot be made, then we would seek a declaration of invalidity in relation to 4002. To the extent that that requires us to amend the originating motion, we would seek leave to do so.

GUMMOW J: We would need to see something specific.

FRENCH CJ: You would have to put up some sort of minute, I think.

MR NIALL: We will do that, if the Court pleases. Unless the Court has any further submissions, they are the submissions for the plaintiff.

FRENCH CJ: Yes, thank you, Mr Niall. Now, Mr Kirk, is there anything you would wish to say supplementary to your written submissions?

MR KIRK: Yes, your Honour. We do seek leave to make fairly brief – by which I mean about 15 minutes – oral submissions.

FRENCH CJ: Yes, all right.

MR KIRK: The relevance is, in our respectful submission, that the constitutional issue we raise is relevant to the two potential readings down of the Act before the Court. It is also relevant to what we would submit is a core irreducible minimum of procedural fairness which is relevant to the procedural fairness argument and also to the potential tribunal process. We provide to the Court, if leave is granted, an outline of what we propose to say.

FRENCH CJ: Where are you raising a procedural fairness issue in this matter?

MR KIRK: Sorry, your Honour. Because the ultimate endpoint of our submission is that there is a core irreducible minimum, as we put it, of procedural fairness which is outlined at paragraph 9 of the two‑page outline, that touches upon the procedural fairness issue.

FRENCH CJ: Just bear with us a moment, Mr Kirk. We will not need to hear you on the procedural fairness question.

MR KIRK: May it please the Court.

FRENCH CJ: We have already heard, I think, sufficiently on that from Mr Niall.

MR KIRK: Do I otherwise have leave to proceed, your Honour?

FRENCH CJ: Yes.

MR KIRK: May it please the Court. The starting point for our constitutional argument is the, what might be called, Lim immunity but, particularly as formulated by your Honour Justice Gummow in Fardon - it was recited by my friend, Mr Niall, yesterday and I will not repeat it - that immunity, in our respectful submission, reflects the fundamental objectives of Chapter III as stated, for example, by your Honours Justices Crennan and Bell in Totani (2010) 242 CLR 1 at paragraph 423. Your Honours need not turn to it, but picking up what was said by five members of the Court in Wilson, namely that Chapter III serves the objectives of being a guarantee of liberty and, to that end, judicial independence, liberty, in other words, is fundamental to the very raison d’être of Chapter III, in our respectful submission.

The exception to the Lim immunity, if I might call it in that that is relevant here is, of course, detention for the purposes of either immigration assessment, as the plurality put it in Lim, to receive, investigate and determine an application or removal to detain for the purposes of expulsion or deportation. I am referring there to Lim 176 CLR at 32. Self‑evidently, the exception to the Lim immunity must have limits and if detention exceeds those limits then non‑judicial detention is impermissible. The limits on the exception, therefore, represent constitutional facts, that is to say, matters on which the validity of the detention depends. Consistently with the principle in the Communist Party Case, those limits must be subject to judicial oversight and control.

There are two limits which are relevant here, in our respectful submission. First, there is a limit relating to the viability of the removal which my learned friend, Mr Niall, referred to yesterday and which we respectfully adopt. The second, which I propose to address, is whether the conditions precedent to continued detention have been met, including whether the person has an entitlement not to be removed.

Could I ask your Honours to turn to Lim 176 CLR 1 at page 29? I will not read it to your Honours, but starting just from the third line, the plurality note that if the relevant provisions there relating to the detention had not referred to non‑citizens, then constitutional problems would have arisen, not merely because of the limits on the scope of Commonwealth power, but because of Chapter III. In other words, the Chapter III exception cannot extend to removal and detention for the purposes of removal, of citizens. That would be impermissible. That, therefore, is a constitutional fact.

We would seek to expand that a little and to say that if the person in question has an entitlement to remain – or perhaps to put it negatively – an entitlement not to be removed, then that is the relevant limit on the exception to the Lim principle, such that they cannot be removed if they have, self‑evidently, an entitlement not to be removed and they cannot be detained for the purpose of removal, to do so falls outside the exception. A person such as the plaintiff, in this case, has an entitlement to reside and an entitlement not to be removed if they satisfy the requirements of relevantly section 36 of the Migration Act bearing in mind, of course, section 65 limiting the discretion in relation to whether or not there is an entitlement to a visa.

In our respectful submission, one cannot divorce the fact of detention for the purpose of removal from the executive decisions that have led to the decision to seek to remove. The power to remove and to detain for purposes of removal is built on a determination that the person is an unlawful non‑citizen where their visa application has been rejected. That raises issues of constitutional fact. The defendants’ answer to that is to rely on sections 189 and 196 to say that an officer of the Commonwealth need only reasonably suspect that a person is an unlawful non‑citizen and if that is satisfied, the reasonable suspicion, then they are entitled to be detained.

FRENCH CJ: Being an unlawful non‑citizen is not a matter of determination, it is a matter of status, flowing from the fact that you are a non‑citizen and do not have a visa. It is effectively sections 13 and 14, is it not?

MR KIRK: Yes, your Honour, but in light of sections 36 and 65, if an application is made – a valid application is made and the criteria are met, there is an entitlement to a visa and, thus, there would be no basis, if there is an entitlement to a visa, to be detained for the purpose of removal. It may be sufficient for the purposes of detention for immigration assessment that there is a reasonable suspicion, but if one gets to the removal aspect of the exception and, in particular, where that removal aspect is edging into, in practice, indefinite detention, in our submission, a reasonable suspicion that the person has no entitlement not to be removed is not sufficient. Were it otherwise, in our submission, the Lim immunity, the protection of liberty would be of significantly reduced worth and efficacy.

The consequence of that, in our submission, is not that the question of the conditions precedent of detention all have to be determined by a court but the Communist Party principle requires that that process, that evaluation which leads to the person being in detention and the attempted removal, has to be capable of judicial oversight and control, at least where the consequence is potentially indefinite detention whilst waiting for removal.

That, then, raises a question of what is the necessary degree of judicial oversight and control. The defendants submit it is sufficient to have the standard availability of review under section 75(v) of the Constitution or 39B of the Judiciary Act. But cases such as Hughes and Vale [No 2] (1955) 93 CLR 127 illustrate that general judicial review is not necessarily sufficient. It depends on the nature of the power being exercised, the consequences of the exercise of the power and the nature of the constitutional fact at issue, including whether it relates to a constitutional guarantee or immunity.

Here, a constitutional immunity of great importance is at stake. The consequences of the exercise of the power are severe and those consequences are foreseeable from the start. As to the nature of the power, it is a power of a very broad and subjective kind. Can I take the Court briefly to Buck v Bavone - it was not on our list, we provided copies to your Honours. It is 135 CLR 110. This, of course, was a section 92 case and your Honours will note from the headnote that the relevant provision, it is referred to at the fourth line, was section 18 of a South Australian Act which established a licensing scheme to grow potatoes. The person had to be licenced and that depended on the satisfaction of the board in question, in essence, that this person was genuinely going to be growing potatoes, a fairly anodyne criterion.

If I could ask your Honours to turn to the often recited passage of his Honour Justice Gibbs starting at page 118. His Honour notes at about point 5 of the page, beginning of the second paragraph, that:

The first question that arises is whether s 18(2) of the Act gives the Board an arbitrary or very wide discretion to decide whether a grower who applies for registration should be granted it. If so –

then there is a reference to Hughes and Vale and potential invalidity. Jumping a sentence, his Honour said –

Whether the decision of the authority under such a statute can be effectively reviewed by the courts will often largely depend on the nature of the matters of which the authority is required to be satisfied.

His Honour then in the passage often quoted refers to the various grounds of review in classical terms and in the last line on the bottom of the page his Honour says –

However, where the matter of which the authority is required to be satisfied is a matter of opinion or policy or taste it may be very difficult to show that it has erred in one of these ways, or that its decision could not reasonably have been reached. In such cases the authority will be left with a very wide discretion which cannot be effectively reviewed by the courts.

Then a reference to Hughes and Vale. His Honour goes on to say, as Justices Mason and Stephen also did, that this was not such a power. Analogously here, in our respectful submission, whilst the security assessment is not a discretion, it is matter of assessment. It is a matter of assessment which involves an opinion or advice. So much flows from section 35 of the ASIO Act to which Mr Niall too your Honours this morning. It is thus very broad and subjective. There is no right to reasons and, as we note in our written submissions, a right to reasons is seen as ameliorating this constitutional difficulty; see, for example, Justice Brennan in Miller v TCN Channel Nine.

Whilst a right to procedural fairness may be some salve to the problem, the defendants here assert, as your Honours know, that the right to procedural fairness substantially contracts almost to nothingness if national security requires that that not occur. Procedural fairness thus is not a salve in this type of case, at least where national security issues arise.

The defendants say one might apply to a court for a judicial review and perhaps seek discovery. That is no answer, in our respectful submission, first because one cannot properly commence proceedings unless there are reasonable prospects for success. To understand that one needs to know something about the decision. Secondly, to obtain discovery one needs at least a tickle of evidence; see WA Pines v Bannerman (1980) 30 ALR 559. Thirdly, if procedural fairness was validly constrained by the national security considerations in the first place, there can be little doubt that public interest immunity would arise such as to prevent disclosure. The practical inutility of judicial review is illustrated by Sagar v O’Sullivan where valiant efforts were made to seek judicial review but it was practically impossible because nothing was known about the decision.

We recognise here that we are addressing a situation where the general law in relation to procedural fairness or public interest immunity might, prima facie, not authorise disclosure of materials, but where what is at stake is a constitutional fact relating to a constitutional immunity and where the exercise of power results in an extreme situation and consequence, namely, indefinite detention or potentially indefinite detention, then that, in our submission, changes the analysis. The constitutional imperative cuts across what would otherwise be the general law relating to procedural fairness and public interest immunity.

That leads to what we submit is the core minimum of procedural fairness, but I will not say anything more about that save to note that what we put is consistent with the position the House of Lords has taken in Secretary of State for the Home Department v AF (No 3) and references in our submissions and it is similar to the position taken by the Canadian Supreme Court in Re Charkaoui. The constitutional difficulty we outline is ‑ ‑ ‑

GUMMOW J: What do you mean by the term “indefinite” in your paragraph 11?

MR KIRK: Sorry, your Honour?

GUMMOW J: What do you mean by “indefinite” in your paragraph 11?

MR KIRK: It is shorthand for the sort of problem that arose in Al‑Kateb, namely, that there is no reasonably foreseeable or practicable prospect of removal. It is an issue of degree, we accept, but where that extreme consequence arises ‑ ‑ ‑

GUMMOW J: How would it apply in this case? We have to decide this case. Now, how does your proposition apply in this case?

MR KIRK: For two reasons, your Honour. First, it is relevant – this brings me to the consequences of our argument. The problem we have sought to outline is avoided if the position adopted by the minority in Al‑Kateb reading down 189 and 196 is adopted. The problem is wholly avoided because the consequence, the extreme consequence of indefinite detention no longer arises. The problem we have outlined secondly is ameliorated if the other position is adopted, put by the plaintiff, namely, that 198 is read down so as not to apply where there are protection obligations.

It is ameliorated there because one, potentially at least, gets into the AAT procedure, which was discussed yesterday, pursuant to which there is obviously a right to procedural fairness, there is a right to reasons, it is a merits review, there is a right of judicial review to the Court. The reason I say ameliorated but not completely avoided is that the AAT Act is a little ambiguous in section 36 to 36D as to the secrecy provisions. It is a bit unclear as to whether the Tribunal can proceed on information not provided to an applicant. If that is permitted, it would still hit the constitutional

difficulty we have sought to outline. If it is not or if the Tribunal declines to take that course such that the core minimum of procedural fairness is provided, then that way the constitutional difficulty would be avoided as well. Unless there is anything further, they are our submissions.

FRENCH CJ: When you speak of 189 and 196 being read down, are you speaking there in terms of a constructional choice which is available or simply that they are be read as valid only to the extent that ‑ ‑ ‑

MR KIRK: The former, your Honour. In Al‑Kateb, of course, the three members of the minority rested their decision on a construction issue. The majority disagreed, but, as your Honour Justice Hayne noted in Al‑Kateb, your Honour reached a position as to construction absent constitutional considerations and acknowledged that constitutional considerations might change the construction. Your Honour then put aside those constitutional considerations because your Honour was not persuaded by them. I am seeking to raise a new constitutional consideration which might lead one back to that constructional choice to support the minority position in Al‑Kateb. If it please the Court.

FRENCH CJ: Yes, thank you, Mr Kirk. Yes, Ms Mortimer.

MS MORTIMER: If the Court pleases, the only matter specified in our outline of oral argument handed up relates to paragraphs 41 to 53 of our written submissions and the development of the analysis about the decisions principally of the Supreme Court of Canada and the United Kingdom in relation to a conflict between the interests of national security and procedural fairness and, as we apprehend the argument that has been put on behalf of the plaintiff, the qualification in paragraph 34.3 of the defendants’ submissions, “unless national security requires that such information not be disclosed” is not a qualification, as my learned friend Mr Niall submitted, that is made on the evidence, and for those reasons the Commission does not seek leave to amplify its written submissions by way of oral argument.

FRENCH CJ: Thank you, Ms Mortimer. Yes, Mr Donaghue.

MR DONAGHUE: If the Court pleases, your Honours should have our written outline which indicates that our oral submissions will be divided into four parts. I propose to commence with the procedural fairness topic, to address second the question whether section 198 of the Act authorises the removal of a person who is owed protection obligations, as that term is used in section 36(2) of the Act where that person has been refused a protection visa on grounds not subject to review in the AAT under section 500, that is, the second part of our submissions will address squarely the matter raised in the letter from the Court and the subject matter of the questions, particularly by Justice Hayne yesterday.

The third part of our submissions will address the proposition that the removal of the plaintiff to a safe third country is both authorised and required by section 198 of the Act because when that section is read, as this Court has held it should be read, in Plaintiff M70 consistently with Australia’s international obligations under the Refugee Convention, there is no inconsistency in such removal and therefore the power and obligation under section 198 arises. Finally, we will deal both with the construction and validity of section 189 and 196 and the question whether Al‑Kateb should be reopened, and if so, overruled.

Can I start then with procedural fairness? Your Honours, the plaintiffs, in our submission, approach this part of the case on the footing that there is an ordinary content of procedural fairness that in an ordinary case requires disclosure of, it seems, all of the relevant information, and perhaps also, it seems, the conclusions and assessments based on that information unless there is evidence that proves a departure from those ordinary requirements is required on security grounds. Their case also assumes, we submit, that – apparently drawing on adversarial notions from adversarial proceedings – it is a requirement that ASIO squarely put the matters upon which its assessment is based.

We submit that that kind of approach leads to error and that the Court should not start from a default position as to procedural fairness, instead, as this Court has emphasised many times and particularly in the passage from SZBEL that you were taken to this morning, the critical importance of the statutory scheme in determining the content of procedural fairness. So that, your Honours, is where we propose to start, in particular with the ASIO Act.

From there it is then necessary, we submit, to examine the nature of the task involved in undertaking a security assessment. Now, we accept, as your Honours will have seen in writing, that the fact that a practical, if not legal consequence, of the security assessment is the detention, the immigration detention, of the plaintiff is, of course, a relevant matter that has a bearing on the content of procedural fairness, but we submit that it is not the only relevant matter and it does not have the consequence that there is an irreducible minimum of procedural fairness or, indeed, that there was any denial of procedural fairness on the facts of this case.

If your Honours could turn to the ASIO Act? Mr Niall took you this morning through most of the relevant provisions. Your Honours will have seen that the functions of the organisation are set out in section 17 of the Act. They turn very heavily on the defined concept of security in section 4 that your Honours saw yesterday and that I will come back to a little later in our submissions. The particular function that is relevant here is section 17(1)(c), advising the:

Ministers and authorities of the Commonwealth in respect of matters relating to security –

and that function is amplified then in section 37(1) of the Act. As Justice Hayne noted in the particular context relevant to the matter before the Court, it is only sections 37(1), (3) and (4) that are squarely engaged. That follows because of the exclusion of all of the other provisions in this part by force of section 36(b) which reflects, we submit, a clear legislative decision to draw a distinction in the particular context of security assessments by ASIO concerning the exercise of functions under the Migration Act to distinguish between citizens and permanent visa holders on the one hand, and everyone else on the other. That is what section 36(b) is doing, we submit.

The question that we say arises, particularly from the terms of Division 2 of Part IV, concerns what that tells the court in identifying the content of procedural fairness. We are not making an argument for exclusion but we do submit that a conclusion about content is informed by what Parliament contemplated in the operation of Division 2, particularly because, we submit, that in providing a capacity in the context of the merits review conferred to withhold particular kinds of information and particular kinds of circumstances, Parliament’s intent would, we submit, be defeated if procedural fairness requires the very matters that could be withheld at the reason stage to have already been provided at an earlier point in time.

So, to take the two particularly relevant examples, if your Honours look at 37(2) of the Act, you will see that, except in the excluded case, there is a necessity to provide – and this is not, your Honours, to provide to the subject of the assessment, this is to provide to the agency that is making the decision at the stage of 37(2) - the agency must be given:

a statement of the grounds for the assessment, and that statement:
(a)shall contain all information that has been relied on . . . in making the assessment –

subject to a critical carve‑out, other than information that:

in the opinion of the Director‑General, be contrary to the requirements of security.

So even in a context where there is this statutory requirement to provide grounds and information, it never extends to material where, in the Director General’s opinion, it would be contrary to the requirements of security and yet even that limited statutory right is excluded in the context of the temporary visa holder. So by excluding that right, Parliament must, we submit, be taken to have been intending to do more than to say you can withhold information if there is a good security reason because that was already the effect of 37(2). The exclusion goes a step further. Similarly, your Honours, when you get to ‑ ‑ ‑

CRENNAN J: So the Parliamentary distinction between citizens and permanent residents and others is, you would say, very obvious, very deliberate and one has to assess the requirements of procedural fairness against that, especially in relation to disclosure of matters affecting matters of national security. Is that the way the argument works?

MR DONAGHUE: Precisely, your Honour. So that procedural fairness is not held to require something to be given at the decisional stage and thus to undercut the fact that there is a regime that contemplates the non‑disclosure of that very information. So we say it informs the question of the content of the common law obligation. The point is perhaps made even clearer in relation to the irreducible minimum argument that is put against us when your Honours look at section 38 of the Act. Here, your Honours, we are concerned with what the agency who has received the security assessment has to disclose to the subject of the security assessment, that is the subject matter of 38. Section 38(2) empowers the Attorney-General to certify, (2)(a), that:

the withholding of notice to a person of the making of a security assessment in respect of the person is essential to the security of the nation –

In other words, the Attorney can certify that you do not get told at all that an adverse security assessment has been made.

FRENCH CJ: This, again, does not apply in the case of a non‑citizen assessment.

MR DONAGHUE: It does not, but we submit that if at the point of an agency being required to disclose an assessment to the subject of the assessment, the Attorney has a decision to make as to whether to certify in the national interest that the subject of the assessment not be told at all about the assessment, it must follow that there are at least some cases where, as part of the process of having made the decision, the person the subject of the assessment has not been told at all because otherwise the Attorney’s power to certify or to make that decision would be undercut. There would be no point doing it, the person would already know that the assessment had been made. We submit that that is a very clear statutory indicator, not in every case, but that in some cases the requirements of national security will be reduced to nothingness, to use Justice Brennan’s phrase from Kioa.

Now, your Honours, I do not say, of course, that that happens in every case but we do submit that those provisions of the Act cannot stand with the argument that there is an irreducible minimum and that the decisions that have been referred to briefly by my learned friend, Mr Niall, in relation to the United Kingdom in AF and in Canada in Charkaoui are decisions that are not of assistance to the Court because in Charkaoui’s Case it is a constitutional decision assessing the validity of a statutory regime for compliance with the charter. In AF it is a decision to which the House of Lords was driven with reluctance by reason of decisions of the European Court of Human Rights as to the effect of that convention. So it is just applying a criterion to assess a statutory regime rather than doing what your Honours are doing which is construing the statutory regime to identify its impact on the common law requirements.

Now, I, of course, accept, your Honours, that these provisions do not apply directly in this case, but if they inform the content of procedural fairness by reducing it in the manner I have just been addressing for a citizen or for a non‑citizen permanent visa holder, we submit that it would be wrong, having regard to section 36(b) to hold that procedural fairness requires more in relation to a temporary visa holder than it requires for a permanent visa holder or citizen and that so to hold would be not to give full effect to the guidance that that Act gives as to the content of procedural fairness.

GUMMOW J: Now, can you just look at the text of 4002 for a minute as it now stands? Is 4002, by implication, a direct conferral of power upon the organisation?

MR DONAGHUE: No, your Honour, we submit not.

GUMMOW J: Well, before you answer that, is it the sort of inferred grant of power that was considered in Mayer’s Case 157 CLR 290 at 303?

MR DONAGHUE: Yes, that is the power to determine refugee status.

GUMMOW J: Well, I do not know whether that was, but the question is, is this a specific grant of power to the organisation?

MR DONAGHUE: Your Honour ‑ ‑ ‑

GUMMOW J: Just a minute. It is a good idea to wait. So that the function in the ASIO is just that, a function to furnish under section 17?

MR DONAGHUE: Your Honour, if there were not a statutory power to be found in the ASIO Act, then the power would certainly be impliedly conferred by public interest criterion 4002 because there is, as in Mayer, an assumption of a power on the part of ASIO to give an assessment of the kind referred to in that public interest criterion. We would urge that the power is in fact conferred by the ASIO Act itself.

GUMMOW J: Section 17(1) is a function, not a power. That is what the section says.

MR DONAGHUE: Yes. Section 37(1) then perhaps is just to be read as an amplification of the function but again refers back to the function conferred in 17(1)(c).

GUMMOW J: Well, it is habitual in federal legislation, is it not, to distinguish powers and functions?

MR DONAGHUE: Indeed, your Honour, but 37(1) says includes the furnishing, which does appear to imply a power to furnish security assessments. That may be the difference between 17(1)(c) and 37(1). But I do not resist the proposition that if there otherwise not to be a power, it would arise from 4002.

Your Honours, if I turn from the ASIO Act to the nature of the function, we submit that - as is indeed self‑evident - much of ASIO’s work involves matters that are highly secret. We submit that whatever content your Honours hold the rules of procedural fairness or the requirements of procedural fairness to have in relation to the function of preparing and furnishing security assessments, that is a content that will require disclosure of information by ASIO, who are accurately assessed by ASIO as people who present a risk to Australia’s national security and perhaps a serious risk to Australia’s national security.

Of course, the content of procedural fairness cannot readily distinguish between the level of risk that a person might pose, the organisation or the difference between the substance of the decision and the procedures that are required to be followed. We submit that the ASIO officers who undertake an assessment must, as a condition of acting validly in performing that function, accurately understand the content of the requirements of procedural fairness or, at least, exceed the minimum standards, whatever they might be, but that in this particular context, in the context of an organisation that is concerned with making decisions of a kind that routinely involve very secret matters, there is an obvious damage in over‑disclosure.

One cannot, in this context, unlike some other contexts, just disclose out of an abundance of caution to make sure that you get to the level of disclosure that is required because to do so will itself be detrimental to the public interest and security that ASIO is intending to serve. We submit that that factor makes it important that the requirements of procedural fairness are sufficiently clear that ASIO officers are able to, with some degree of accuracy, identify what is required of them without the need to risk over‑disclosure of that kind.

We submit that that line of thought strongly supports the approach taken by the Full Federal Court in Leghaei’s Case that Mr Niall took your Honours to it this morning and I will not go back to it. Essentially, the Full Court accepted, as the passages you were taken to show, that if the Director General gives evidence to the effect that he has carefully considered the matter and as much as possible consistent – that has been disclosed that could be disclosed consistently with the requirements of security, that will be sufficient. Again, that runs directly contrary to the irreducible minimum argument.

But, we submit, it does not follow from the approach in Leghaei that in every case ASIO will have denied procedural fairness unless everything that could possibly have been disclosed consistently with requirement has been disclosed. That just assumes an answer to the question, what would procedural fairness have required unmodified by that particular kind of consideration and we submit that the provisions in the statutory scheme that I have already taken your Honours to point against any such requirement because, as I have said, particularly in relation to 37(2) of the ASIO Act, that section already allowed the Director General not to provide – already allowed information not to be produced if the Director General thought it was contrary to requirements of security.

The other two matters, we submit, that relevantly bear on content here are that, first, it is often said, particularly by reference to the judgment of the Full Federal Court in Alphaone 49 FCR ‑ though I do not need your Honours to turn to it – that procedural fairness usually does not require the disclosure of mental processes or evaluations, and that is important in the context of an ASIO security assessment because the function is inherently an evaluative one where judgments are made – as your Honour Justice Hayne pointed out, in Thomas v Mowbray, often in the context of diffused or fragmentary conflicting pieces of evidence.

So one moves quite quickly when identifying the issue that is the subject of the security assessment from – it can be identified at a high level of generality, but the more specific you get the more deeply one almost immediately delves into the thought processes or evaluations of the decision‑maker, being a matter with which procedural fairness is generally not concerned.

Similarly, again as your Honours have regularly pointed out, including in the passage in Aala we have quoted in our written submissions, the Court warns against importing requirements from adversarial proceedings into an administrative context, and the repeated references in our friend’s submissions to an obligation to squarely put matters as if this were a judicial process we submit mistakes the fundamental nature of the function that ASIO is performing under the ASIO Act.

All of that, your Honours, gets us to the position that your Honours have already noted in paragraph 34 of our submissions, and which is also recorded in paragraph 3 of our oral outline, that reconciling the practical effect of the security assessment on liberty, on the one hand, which we submit is a very significant elevating factor if not for that factor much less would, we submit, be required by way of procedural fairness, but taking that factor into account procedural fairness should be held to require ASIO to disclose the gist or substance of the issue on which its assessment is based but not the detail of the particular information or evaluations that are reached by ASIO when undertaking its security assessment.

That is an approach of the very kind that your Honours referred to in Applicant VEAL that Mr Niall also took the Court to this morning, and we submit that it will sufficiently reconcile the competing demands of national security on the one hand and fairness to the individual on the other.

If we then come, your Honours, to the question of was procedural fairness accorded in this case, we submit that the answer is undoubtedly so, that what occurred comfortably cleared the requirements of procedural fairness. Your Honours have already been shown the Director General’s affidavit that identified the grounds of the assessment. My friend has made reference to the possibility of adverse evidence from another source personal to him that might have been taken into account in this assessment. There is no evidence of that before the Court, that there was any such information; it is a matter of speculation that there was. The Director General has excluded the possibility of there having been information from particular sources where an inference might have been drawn from the transcript that there was information of that kind.

The main focus, as we understand the case against us of the procedural fairness complaint, is that the issue was not sufficient disclosed but, your Honours, here there was an oral hearing of considerable length with a legal representative present that focused exclusively on the association and activities of the applicant as an intelligence officer with the LTTE and there were multiple breaks in the interview where he could consult with his lawyer and on many occasions he was questioned both in detail about his activities, and he was asked open‑ended questions to the effect that, “Tell us anything that you want to about your past relations with the LTTE” and “Do not wait to be prompted, you should take this opportunity to put anything forward relevant to this topic”, the topic that clearly, ultimately formed the foundation for the assessment.

If I could ask your Honours to turn to the special case book and just give you a few examples. If your Honours turn to page 93 at about point 3 or point 4 on the page there is a sentence:

When I went there, actually I did not know that was the intelligence training place, but I was joined. There also they conducted classes.

There is then some evidence about the training that was received at the intelligence training place. Then, turning over to the top of page 98, he refers to, at about three lines down, the job that was given to him. The Sri Lankan military came through the towns.

the other job given to me was there will be Tamil people who will give information to Sri Lankan military to money or something for other purposes. My supervisor told me to identify those people and to inform him. So what I do I go into the village and mix with the people and at night I’ll come and write my report that no incident was happen.

So he was being asked about his intelligence training, he was being asked about his activities on behalf of the LTTE. He was asked, over the top of page 100, again:

Okay, so basically your job was to identify people that you thought were working with the Sinhalese.

There cannot, we submit, have been any doubt in the plaintiff’s mind about the subject matter with which ASIO was focusing in undertaking this security assessment process, and he was repeatedly given an open‑ended opportunity to say what he wished about that, for example, near the top of page 92, about four or five lines down the interviewer asked:

I would like to understand your activities and your involvement with the LTTE, this is your opportunity to talk, to tell us about that and to tell us what you think we should know about that.

So the proposition, we submit, that the plaintiff was denied an opportunity to put forward relevant material in this interview, cannot be sustained. Furthermore, in the course of the interview, his inconsistencies with earlier statements that he had made were drawn to his attention. Your Honours can see that at page 113 at about point 6 or point 7. He said:

I have not dropped anything. I have not made any mistake, I have told everything. There is some information where I have given in UNHCR is a bit different.

Then he was questioned about the differences between his statements in these interviews with his earlier statements to the UNHCR. There were occasions in the interview where inconsistencies as to answers that he gave even within the four corners of this interview were also put back to him.

Insofar as the complaint is made that the topic in paragraph 4 c of the Director General’s affidavit was not put to him – this is page 129 of the special case book – the conclusion was that the plaintiff “remains supportive of the LTTE”. One cannot, obviously, remain supportive of the LTTE if one was never supportive of the LTTE and the plaintiff’s position in the course of the interview was that he was not a voluntary member of the LTTE, that he was forced to be involved with the LTTE and that he resisted that involvement. There would, we submit, have been an utterly pointless exercise for ASIO to have questioned him on the footing that all of his previous answers were false and then to see that if it turned out that you were voluntarily in the LTTE, what do you say that means about whether you remain supportive of it. It would have really been, we submit, a farcical exercise. And, procedural fairness should not, we submit, be held to have required ASIO to engage in it. So for those reasons, your Honours, we submit that the complaint that there was a denial of procedural fairness in respect of the security assessment should be dismissed.

If I could turn then to the second part of the oral outline dealing with protection obligations, and here, your Honours, we submit that there is an absolutely fundamental distinction that underpins the matters in issue in this case. It is a distinction between two things. The first thing is the question whether a contracting state accepts that a person is a refugee and, thus, a person with respect to whom is a matter of international law Australia has obligations to other contracting states. There is a quite separate question as to whether that person, even accepting them to be a refugee, will be permitted to enter the Australian community by being granted a visa.

GUMMOW J: What do you mean by the “Australian community”?

MR DONAGHUE: Your Honour, I mean ‑ ‑ ‑

GUMMOW J: It is not a constitutional expression.

MR DONAGHUE: No.

GUMMOW J: It is something else. What is it?

MR DONAGHUE: I use the expression as an expression that was used by Justice Hayne and Justice Heydon in Al‑Kateb, I think, to distinguish between physical presence in Australia and a presence in Australia pursuant to a right.

GUMMOW J: Australians under sentence in Australian prisons, are they not members of the Australian community?

MR DONAGHUE: Well, your Honour, obviously much depends on the reason that the question is being asked. Here, we submit, the reason the question – I am using the phrase to mean persons who lawfully have a right to live and work in Australian society and to distinguish between physical presence on the one hand and persons who have that right, which you get under the Migration Act only through, in our submission, the grant of a visa. So if I could use the expression, your Honour, to distinguish between lawful non‑citizens and unlawful non‑citizens. That latter question, whether a person accepted to be a refugee, a person who Australia agrees it has international obligations with respect to, should be permitted to enter the Australian community, is not a question that is answered by the Refugee Convention. The Refugee Convention does not oblige ‑ ‑ ‑

GUMMOW J: I still do not understand what you are saying.

MR DONAGHUE: Your Honour, the proposition that I am advancing is that the fact that a person is a refugee means that Australia has certain obligations with respect to them, critically Article 33(1). It does not mean that Australia has to grant a visa to that person or that that person needs to be allowed to live and work in ‑ ‑ ‑

FRENCH CJ: That is underpinned by the proposition there is no right of asylum.

MR DONAGHUE: Precisely, your Honour. That is what is meant by that proposition, that there is this distinction between being a refugee on the one hand and having a right to live and work in society on the other. The question whether a person is granted a protection ‑ ‑ ‑

GUMMOW J: We will get even further if we focus on these specifics.

MR DONAGHUE: Well, your Honour, I am about to take your Honour to your Honour’s judgment in Applicant A 190 CLR 225 which deals with this very topic and if I might do that. If your Honours could turn to page 273 where your Honour Justice Gummow said this halfway down the page:

The predominant view (including that of the Supreme Court of the United States in Sale v Haitian Centers Council and the House of Lords in T v Home Secretary is that decisions to admit persons as refugees to the territory of member states are left to those states.

If I could then pass over the rest of that paragraph and refer to the statement by Lord Mustill:

“[A]lthough it is easy to assume that the appellant invokes a ‘right of asylum’, no such right exists. Neither under international nor English municipal law does a fugitive have any direct right to insist on being received by a country of refuge. Subject only to qualifications created by statute this country is entirely free to decide, as a matter of executive discretion, what foreigners it allows to remain within its boundaries.”

Now, of course, that passage refers to qualifications created by statute and I understand that I need to come to those qualifications and I will do so.

HAYNE J: Read in the light of section 65.

MR DONAGHUE: I accept that, your Honour, and ‑ ‑ ‑

HAYNE J: Which says thou shalt if conditions are met and thou shalt not if conditions are not met.

MR DONAGHUE: Exactly, your Honour, but the question and the focus of my submissions is on the conditions are met part of that formulation. We submit that a state is consistently with that principle entitled to determine conditions other than the fact that the person is a refugee because if there cannot be conditions other than the fact that a person is a refugee, there is no distinction between being a refugee and having a right of asylum. The refugee would be permitted to live and work in the country. That is the proposition that is denied by the formulation referred to by your Honour Justice Gummow there. If your Honours look further down page 274, your Honour refers to the view of a commentator that:

“Its framers sought to guard –

That is the framers of the Convention –

the sovereign right to determine who should be allowed to enter a State’s territory . . . The Convention only obliges State parties to guarantee non-refoulement or non-return to place of persecution. It does not guarantee asylum in the sense of permanent residence or full membership of the community, nor does it guarantee admission to potential countries of asylum.

That is a proposition that is reflected in the joint judgment of six members of the Court in NAGV, paragraph 16, a case I will come to shortly. It is reflected in Justice McHugh and Justice Gummow’s joint judgments in Minister for Immigration v Kahwar 210 CLR 1 – I am just giving your Honours the reference – at paragraph 42 and in the judgment of the Full Federal Court in SZ v The Minister 101 FCR 342.

The pathway by which the second decision, the decision whether a person who is a refugee should be granted that further status of a right to live and work in the Australian community under the Act is presently the protection visa and has been since 1994 and the commencement of the Migration Reform Act 1992. It does that, of course, by making protection obligations under the Convention a criterion for the grant of a protection visa but not the criterion or the exclusive criterion. The plaintiff has, perhaps, until late this morning, accepted, and I am referring here particularly to paragraph 29 of the special case, that he did not – that on page 23 of the special case book that he was:

unable to satisfy public interest criterion 4002 and does not meet the criterion in clause 866.225(a) of Schedule 2 of the Migration Regulations 1994.

In other words, he agreed in the special case that he did not meet one of the prescribed criteria for protection visa and, therefore, that under section 65 of the Act he was not eligible for a protection ‑ ‑ ‑

GUMMOW J: Whereabouts are you reading from?

MR DONAGHUE: Paragraph 29 of the special case, your Honour. The plaintiff’s argument has been that while he was not entitled to a protection visa he was, nevertheless, a person owed protection obligations under the Act and that was said to have significance, even though it did not lead to an entitlement to a visa.

The proposition that was embraced by Mr Niall in his submissions was that even though he was not – his client is not entitled to a visa, he is entitled to be released from detention to live and work in the Australian community as a non‑citizen without a visa because the Act does not authorise his detention and removal because he is owed protection obligations, in other words, that a refugee stands outside the regime created by the Migration Act even if not the recipient of a visa because the Act does not authorise detention and removal for a refugee.

We submit that that proposition is contrary to the fundamental scheme of the Act created by the Migration Reform Act and reflected in the objects provision of the Migration Act in section 4(2) of the Act which says that:

To advance its object, this Act provides for visas permitting non‑citizens to enter or remain in Australia and the Parliament intends that this Act be the only source of the right of non‑citizens to so enter or remain.

Your Honours, can I develop this submission in four steps, first, by taking your Honours to the Migration Reform Act which is the origin of the concept of protection obligations; second, by taking your Honours to the Migration (Offences and Undesirable Persons) Amendment Act 1992 which is the source of section 500(1)(c) and of course, the matters that had been raised by your Honours with the parties; third, and briefly, to some subsequent amendments particularly by the Border Protection Amendment Act 1999 and thereafter in relation to safe third countries and finally, in relation to 4002.

Your Honours should have been given a bound volume with tabs headed “Defendant’s bundle of legislative material”. In that bundle behind tab 1 your Honours will see the Migration Reform Act. The Migration Reform Act 1992 did not, in fact, commence until September 1994, and that gap creates some complexity in the interaction between the various provisions, but the ‑ ‑ ‑

FRENCH CJ: There were some amendments also in the interim.

MR DONAGHUE: There were some amendments, and the commencement date was pushed back. It was originally intended to commence in 1993 and it was then pushed back to commence on 1 September 1994. The significance of that for present purposes is the Act that introduced section 500(1)(c) which is a 1992 Act commenced in relevant respects at the same time as the commencement of the Migration Reform Act, and I will take your Honours to it. Some of its provisions commenced earlier but the relevant ones commenced at the same time, so they are part of a uniform regime in their commencement and they were obviously intended to operate together.

If your Honours look at the Migration Reform Act you will immediately recognise many of its provisions, although the section numbers are different, so if your Honours look at section 26(3), that is the section that is now section 31(3) of the Act, and it confers a power to make regulations prescribing criteria for, relevantly, visas of the class specified in 26B of the Act. Section 26B is the precursor of section 36 of the Act and it refers to “A criterion for a protection visa” being the protection obligations being owed under the Convention.

So one immediately sees just from those two provisions a possible disconformity between persons who are entitled to protection obligations on the one hand and persons who are entitled to protection visas on the other, because once there can be any criterion other than being owed protection obligations there must be a possibility that someone who is a refugee and thus owed protection obligations will fail the other criterion and not be entitled to a protection visa.

What happens to such a person? The answer is in the predecessor provision to section 65, which is 26ZF. The person cannot receive a visa. What happens then to the person who is a refugee but refused because of other criteria described under 33(3)? Section 54W provides that:

an officer knows or reasonably suspects that a person in the migration zone is an unlawful non‑citizen, the officer must detain them.

Obviously that is 189 now. Over the next page, 54ZD is now 196 of the Act, requiring a person to be detained until removed, deported or granted a visa and 54ZF provides for removal as soon as reasonably practicable. So on the face of those provides the regime contemplates that a person owed protection obligations but who fails to achieve a protection visa by reason of other criteria must be refused the visa, detained and removed from Australia. The explanatory memorandum to those provisions is behind the next tab in the volume and, in our submission, it confirms what is in any event evident from the provisions that I have just taken your Honours to. If your Honours look first at paragraph 8 at the bottom of page 2:

In order to simplify travel and entry arrangements, the Reform Bill provides for a single form of authority (to be called a ‘visa’) to travel to, enter and remain in Australia.

We submit it, consistently with the Act, suggests that a person cannot remain in Australia without being the holder of a visa. Over the page at paragraph 12, the second half of paragraph 12:

the existence of categories of exempt non‑citizens has inappropriately placed certain person in those categories beyond the controls of the Principal Act which are applicable to visa and entry permit holders.

There was an attempt being made by this regime to bring all non‑citizens under the framework of the Act rather than to leave some people standing outside it as non‑citizens in Australia who did not hold visas. At paragraph 15 there is a reference to the introduction of protection visas:

In future claimants will not apply separately for recognition as a refugee and permission to stay in Australia. Both processes will be combined.

That reflects the fact that the two separate decisions I referred to earlier, are you a refugee, do you get admission, had previously been legally distinct steps in the Australian regime. There was a determination by the Minister as to refugee status and then a separate decision as to whether or not to grant an entry permit. That process was being collapsed. In paragraph 16, it is noted – and this is a reference to the introduction of the unlawful non‑citizen, lawful non‑citizen distinction – that previously – I am reading the second‑half of paragraph 16:

The proliferation of statuses has resulted in part from the existing definition of entry to Australia which deems some persons not to have entered Australia, for the purposes of the Principal Act, notwithstanding that they are physically present in Australia.

Then the last sentence of 17, the reform was to:

eliminate the present distinction between physical arrival in Australia and entry as defined in the Act, which leads to the result that a person can be in Australia for a significant period without legally ‘entering’.
18 Following from this, the Reform Bill will provide that a person in Australia will have one of two statuses – lawful non‑citizen. . . or unlawful non‑citizen . . . This amendment will represent a significant simplification and clarification of the existing law.

Again, we submit, cannot be squared with the proposition that the concept of a protection obligation in this Act has the consequence that a person who is not granted a visa nevertheless is permitted to live in Australia and is not subject to removal.

FRENCH CJ: So, does this all lead forward – and I know I am going forward a fair bit – to the proposition that if indefinite detention is not possible under the statute in respect of an unlawful non‑citizen, that creates a lacuna which is inconsistent with the statutory scheme?

MR DONAGHUE: Yes, a very large lacuna, in our submission.

HAYNE J: It is a hole that is filled, is it not, by observing that there is a particular kind of decision that could be made, the 500(1)(c) decision.

MR DONAGHUE: Your Honour, I am not seeking to avoid that. I am nearly there and I will address that shortly, if I may. But, in my submission, 500(1)(c) has to be read with the regime created by the Reform Act which was intended to be a fundamental change to the regime and was intended to create a position whereby even a refugee had to have a visa and contemplated that a refugee might not receive a visa. So just to finish with this document, your Honours, paragraph 48 in the third sentence:

As noted above, the Reform Bill will provide generally for one category of ‘unlawful non‑citizen’ which will subsume all other statuses of illegal and unauthorised presence in Australia –

I really note that as a marker for a future submission based on the question of whether or not the plaintiff is lawfully in Australia for the purposes of the Refugee Convention. The intention appears to be that an unlawful non‑citizen is not and that statutory concept was just designed to subsume and simplify the pre‑existing concepts. Finally, your Honours – no, sorry, I speak too soon – on page 10 in paragraphs 54 and 55 there is the reference to the removal provisions in terms again that, particularly in paragraph 55:

simplify the removal process so that all persons unlawfully in Australia will be subject to removal –

It does not suggest a caveat in relation to persons owed protection obligations. Protection obligations are then dealt with on page 18, which is the next page in the bundle, paragraphs 25 and 26. There is a reference there to a protection visa being a temporary visa. That was one of the changes that was made between the Reform Act and commencement. It became a permanent visa. So by the time these provisions actually commenced it was not a temporary visa. Paragraph 26 acknowledges that the visa was:

intended to be the mechanism by which Australia offers protection to persons who fall under the 1951 Convention –

and we do not, of course, quibble with that proposition. Then in paragraph 27 it is said, from the second sentence:

In the future persons seeking the protection of the Australian Government on the basis that they are refugees will not apply initially, as now, for recognition as a refugee, but directly for the protection visa. This change is consistent with the general principle contained in the Reform Act that the visa should be the basis of a non‑citizen’s right to remain in Australia lawfully.

Not the fact that a person satisfies one of the criteria for the visa. Now, your Honours, we submit that it is clearly the case under this statutory regime that some persons who are refugees will not be able to obtain a protection visa entirely independently from Articles 1F, 32 and 33 of the Refugee Convention. I will come to those articles in more detail, but just leaving them aside for the moment, if your Honours look at section 65 of the Act, the current Act, your Honours will see that the Minister has to be satisfied about each of the relevant paragraphs.

(i)the health criteria for it (if any) have been satisfied; and

(ii)the other criteria for it prescribed by this Act or the regulations have been satisfied; and

I will come to the regulations in a moment –

(iii)the grant of the visa is not prevented by –

various sections, including section 501, which are the character provisions. We submit that the Act on its face contemplates – and I will not take your Honours through the character provisions, I know you have been there many times – but a person who fails the character test can be refused a protection visa by the Minister and if the Minister is satisfied that the person fails the character test, that has the mandatory consequence under section 65 of the Act that no protection visa is granted. That is a decision we submit that cannot possibly engage the qualification dealt with in relation to Articles 1F, 32 and 33. So it is not a decision that could have been made on those bases and so the fact that there is ‑ ‑ ‑

HAYNE J: Why not under the public order element of 32?

MR DONAGHUE: Well, it depends, your Honour. We submit that there is no reason to consider that there would be congruence between the content of public order in section 32 and the statutorily defined concept of the character test.

HAYNE J: Would not the concept of the public order, as used in the international instrument, be a matter for domestic law determination, both as to content and application?

MR DONAGHUE: Your Honour, no, in my submission, not entirely. Undoubtedly it is a matter that would be informed where contracting States would have some measure of discretion or a margin of appreciation in applying the concept. But the character test can be failed by someone being sentenced to a term of imprisonment of 12 months. It could be related to a fraud offence, for example, which may not be capable of engaging the public order qualification as understood in section 32. I do not deny, your Honour, the possibility of overlap.

CRENNAN J: Well, section 501(6)(d)(vi) is an indicator of overlap, I think.

MR DONAGHUE: Except, your Honour, I am not putting the proposition that there is not overlap, I am putting the proposition that the criteria are not co‑extensive and so there is a possible decision to refuse on character grounds that is not a decision in the terms of Articles 1F or 32 or 33. Perhaps the point can be more clearly made if I take your Honours to the regulations and I will do this if might by reference to the regulations as they stood at the time that this visa class was created. Again, your Honours will find that in our bundle, this time behind tab 8.

Your Honours, we have included the stepping‑stone provisions in the regulation that prescribes the - regulation 2.01 describes the classes by reference to Schedule 1. Regulation 2.03 provides the criteria for the purposes of 31.3 of the Act. If your Honours turn ‑ ‑ ‑

HAYNE J: Are these the regulations that were promulgated for the purposes of commencement of the Reform Act with effect September 1994?

MR DONAGHUE: Yes. So, they are the regulations that operated once the protection visa came into existence and, unsurprisingly, you see in 866.221 that that the Minister’s satisfaction as to protection obligations is one of the criteria, but 866.223 requires an applicant to have undergone a medical examination, 866.224 requires a chest x‑ray, 866.225 requires satisfaction of public interest criteria 4001 to 4004. Then there is also a national interest test in 226.

If you then turn to the next page in the bundle you will see the “Public Interest Criteria” and 4001 is the character criterion which refers to section 500, 4002 is the earlier form of the present national security requirement. So in answer to your Honour Justice Kiefel’s question, it has been there since the start, and 4003:

The applicant is not determined by the Foreign Minister –

So a different Minister outside the framework of the Migration Act, and this, we submit, your Honour, would be a power of the Mayer – your Honour Justice Gummow a power of the Mayer kind but conferred on the Foreign Minister to make such a determination –

to be a person whose presence in Australia would prejudice relations between Australia and a foreign country.

Now, just pausing there, that criteria, we submit, has nothing whatsoever to do with whether the person is a refugee or with whether they could properly be refused on Article 1F, 32 or 33 grounds. It may be that the person is a refugee from a close ally or from a major trading partner and there was a power conferred by the Foreign Minister to make a determination that would disentitle, by reason of the operation of section 65, a refugee to the grant of a visa.

Now, that is not to say – and we make this point also in relation to the relevant public interest criteria 4002 – a decision to refuse a protection visa on one of these grounds does not deny a person’s status as a refugee. It says nothing about Australia’s international obligations with respect to the person. It does not mean Australia considers that it can refoule a person in breach of Article 33. If Article 32 applies, and I will need to develop that, it does not mean you can expel in contravention of Article 32. All of those obligations remain in place and operate to benefit the non‑citizen, but what it does mean is that you do not get a protection visa, and so the person is not entitled to live and work in the Australian community and is subject to the detention and mandatory removal provisions in the Act.

That submission, in my submission, as to the way the Act works is supported by the decision of the Full Federal Court in SZ v Minister for Immigration 101 FCR 342. This is a decision and judgment of Justice Branson with whom Justices Beaumont and Lehane agreed. The argument that was being made was an argument that the function of deciding on a protection visa application transgressed judicial power. So it was not an argument that has any particular merit or utility in relation to the matter before the Court, but the discussion of the operation of the statutory regime does. If your Honours start at paragraph 14 at page 345, you will see Justice Branson say:

The contentions of the applicant were unequivocally based on the assumption that if he is a person to whom Australia has protection obligations under the Refugees Convention he has a right of asylum in Australia. This assumption is not well founded. The Refugees Convention provides a definition of the term “refugee” in Art 1, but does not create any general right in a refugee to enter and remain in the territory of a Contracting State.

Then there is a quote from the same passage, your Honour Justice Gummow quoted in Applicant A. Then at paragraph 15:

The position is the same in Australia under both international law and municipal law. The position under the Refugees Convention is mentioned above. As is explained below, the Act does not give to a person who falls within the definition of “refugee” in the Refugees Convention any right to enter or remain in Australia.

Over the page at paragraph 23:

As I have already mentioned, the assumption made by the applicant that s 36 of the Act gives an unqualified right to remain in Australia to every person to whom Australia has protection obligations under the Refugees Convention is unsustainable. The assumption would be unsustainable even were it the case that such a right exists under international law.

Her Honour then assumes at the end of paragraph 25 that there is such a right to test the proposition. At paragraph 28, the second half of the paragraph says:

What s 36 of the Act does do is to make it clear that protection visas are intended to be available only to persons to whom Australia has, as a matter of international law, protection obligations under the Refugees Convention. That is, s 36 refers to the Refugees Convention for the purpose of defining by reference to its terms a criterion for the grant of a protection visa under the Act.
29 However, reference in s 36(2) to “[a] criterion” implicitly recognises the possibility of additional criteria being prescribed for protection visas (see s 31(3)). Nothing in the Act limits the criteria which may be prescribed pursuant to s 31(3) to criteria which are consistent with Australia’s international obligations under the Refugees Convention. There is no challenge made in this proceeding to the validity of s 31(3) of the Act or of the criteria prescribed thereunder.

Then in paragraph 30 her Honour notes section 65:

First, it specifies matters additional to the prescribed criteria concerning which the Minister must be satisfied before he or she grants any visa. Not surprisingly, as the subsection is of general application, these matters are not derived from the Refugees Convention.

Finally, at paragraph 32:

Section 36 of the Act does not give an entitlement to a protection visa to every “non‑citizen in Australia to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol”.

Then her Honour goes on to accept that section 65 would require the refusal of a visa and 189 would then require detention with 196 until removal. So we submit that the analysis that we have put forward so far is reflected in the same analysis of the scheme adopted there by the Full Federal Court. Can I also ask your Honours to turn briefly – I will come back to it later of course, but to Al-Kateb 219 CLR 562 at 633. This is in your Honour Justice Hayne’s judgment, with whom your Honour Justice Heydon agreed. At the top of 633 over onto 634 your Honour summarises the history that I have just taken the Court quickly through, referring at the opening of 204 to:

a radical change was made to the legislative scheme –

by the 1992 Act. If your Honours look at paragraph 207, Justice Hayne said:

These provisions for the mandatory detention of unlawful non‑citizens applied regardless of whether the person concerned was seeking permission to remain in Australia (whether as a refugee or otherwise). They applied even if the person concerned had entered Australia with permission but that permission had later terminated. All who did not have a valid permission to enter and remain in Australia were “unlawful non‑citizens” and were to be detained.

So, in our submission, that passage recognises the operation of these provisions of general application with respect to refugees who do not hold a protection visa.

Now, that brings me to the Act that introduced section 500(1) and your Honours will see that behind tab 4 in the legislation bundle, the Migration (Offences and Undesirable Persons) Amendment Act 1992. This Act, as its second reading speech makes clear, was primarily a response to a controversy that had erupted in Australia at that time in relation to a visit by certain members of the Hell’s Angels motor cycle club to Australia that had highlighted what was perceived to be a deficiency in the Act in relation to the exclusion of people on character grounds and it was the precursor to – the current section 501 was introduced at this time along with a number of other provisions that included a capacity to seek merits review in the Administrative Review Tribunal of a person who was excluded on those character grounds.

So that is the context to which this Act was specifically directed and your Honours will see, if you look at section 4 of the Amendment Act - your Honours, could I invite you first to look at section 2(2), which notes a different commencement date for subsections (4), (2), (6) and (7). That date of 1 November 1993 was the initial scheduled date for the commencement of the Reform Act before it was pushed back, but those sections were to commence after the other provisions and that explains the duplication that your Honours then see when you look at section 4 of the Act.

Section 4(1) made an amendment to the character provisions with immediate effect, whereas section 4(2) made an amendment to the same section that commenced to match with the commencement of the Migration Reform Act as was necessary because, for example, 2(b) inserts the provision that is currently of interest to the Court and that section refers to protection visas which did not exist until the commencement of the Reform Act on 1 September 1994.

FRENCH CJ: Yes, but the renumbering to 500 and 501 and so forth happened before September 1994, did it not?

MR DONAGHUE: It also happened by reason of an Act passed in the intervening period. It was the Migration Legislation Amendment Act 1994.

FRENCH CJ: That is what the regulation refers to?

MR DONAGHUE: Yes, and it renumbered everything. So once the Reform Act commenced, it commenced with its renumbered provisions and looking at this Act, section 180 became section 500, section 180A became section 501, 180B became section 502, 180C became section 503. So all of the provisions that bear on the subject matter of the questions asked in the Court’s letter are a product of this Act and what appears to have been contemplated was that in the context of inserting a strengthened power to refuse or cancel visas on character grounds and the conferral of a related AAT appeal right in relation to that character exclusion, it was decided to group some categories of decisions under the – in relation to protection visas where similar kinds of considerations were thought to be raised into the same merits review regime.

So that if your Honours turn to the next tab, which is the explanatory memorandum to this Act, and turn to paragraph 10 you will see the explanation that was advanced. A new paragraph (c) was inserted into what is now section 500 to:

extend the jurisdiction of the AAT to review decisions to refuse or cancel protection visas relying on Articles 1F, 32 or 33(2) of the Refugees Convention. Protection visas will come into existence on the commencement of the Migration Reform Act 1992 . . . The Articles of the Refugees Convention referred to in new paragraph 180(1)(c) have the effect of removing the obligation to provide protection as a refugee to a person who has committed crimes against peace, war crimes –

that is all Article F:

or otherwise presents a threat to the security of Australia or to the Australian community.

So Parliament seems here, we submit, to have proceeded on a certain assumption that the effect of falling within 1F, 32 and 33 was to remove protection obligations. That is an assumption that has proved to be wrong by reason of your Honours’ judgment in NAGV. I will come to that judgment probably after the luncheon adjournment, but your Honours will recall that the Court held in that case that a person is owed protection obligations if they meet the definition of a “refugee” in section 1A of the Convention.

A person can meet the definition of a “refugee” in section 1A of the Convention even if they – well, I need to distinguish, your Honour, between Article 1F on the one hand, and Articles 32 and 33 on the other. It is true that if Article 1F applies, you do not, on the NAGV approach, meet the definition of someone who is owed protection obligations, but we submit that the fact that Article 32 or 33(2) might not apply does not deny the status of a person as a refugee within the meaning of 1A and, thus, would not disentitle a person to the grant of a protection visa by reason of section 36(2) of the Act. Now, I will develop this, but ‑ ‑ ‑

FRENCH CJ: Can I just ask whether the criterion 4001 ‑ ‑ ‑

MR DONAGHUE: Is your Honour now looking at the original 4001 or the present one?

FRENCH CJ: I am looking at the present one, but the model is the same. Does that assume an exercise by the Minister of the powers conferred by section 501?

MR DONAGHUE: The model has, I think, changed.

FRENCH CJ: Well, let me just look at 4001 as it presently stands.

MR DONAGHUE: Yes.

FRENCH CJ: It seems to assume that the Minister has decided – one of the alternative criteria is the Minister has decided not to refuse to grant, et cetera. In other words, that there has been some exercise of the ‑ ‑ ‑

MR DONAGHUE: Some consideration one way or the other.

FRENCH CJ: ‑ ‑ ‑ under 501.

MR DONAGHUE: Under 501, yes.

FRENCH CJ: What the Minister is doing, and which is referred to 4001, is the things that the Minister does under 501.

MR DONAGHUE: Yes, and that was expressed in – the original criteria 4001 actually referred to the decision‑making function under section 500. That express reference has been removed but there is still a cross‑reference. There are, your Honour, cases and your Honour Justice Crennan when on the Federal Court decided a case called VWOK which went on appeal to the Full Federal Court which was about a visa criteria that mandated or that disqualified a person from entitlement to a visa if you had been convicted of an offence punishable by maximum offence - of maximum sentence of 12 months in the preceding four years.

So what that criterion did was remove any need for a ministerial decision under section 501 because you just failed the criteria if such an offence had been committed. It was argued that that criterion was inconsistent with the Act, repugnant to the Act because it had that consequence that you did not need to make a decision under section 501 and your Honour Justice Crennan rejected that argument and on appeal to the Full Federal Court the Court endorsed or adopted your Honour’s reasoning. So there is potentially tension between the operation of prescribed criteria under the Act and the ‑ ‑ ‑

FRENCH CJ: There were some decisions that went the other way in relation to medical assessments, I think, bringing in a member of a family who suffered from some disability. For example, I think there were two, one involving a Vietnamese and one involving a South African.

MR DONAGHUE: Yes, your Honour, and we do not deny the possibility that in some cases there might be repugnancy of that kind, but we do submit that – as was recognised in VWOK – the effect of section 31(3) of the Act is

to confer a very wide power to set criteria for visas, and the whole Act, as the very complex structure in Schedules 1 and 2 of the Migration Regulations shows, is erected around the exercise of that power, and it is a power that contemplates that even if the primary criteria in the Act are met people might still not get visas, and that we submit is the effect of this regime.

GUMMOW J: You say there is no Project Blue Sky problem?

MR DONAGHUE: I do, your Honour.

FRENCH CJ: We will adjourn till 2.15.

AT 12.46 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.20 PM:

FRENCH CJ: Mr Niall, we have your amendment, I think.

MR NIALL: If the Court pleases, I seek leave to amend the ‑ ‑ ‑

FRENCH CJ: Now, you had referred in the amendment to the relief to the power conferred by section 31(3) and section 505. Did you intend in relation to the next two amendments, paragraph 38 and to the questions reserved, to refer to the powers conferred by 31(3) and 505?

MR NIALL: We were going to ask the Court to delete the words in section 505 in the declaration as not being necessary, not being a source of power but simply an explication of the power. So I would invite the Court to delete the words “and section 505” in the declaration proposed for paragraph 4(a) and would seek leave to amend the further amended application to show cause and the amended special case to deal with those matters.

FRENCH CJ: Yes, all right, thank you. Mr Donaghue, do you have a response to that at this stage?

MR DONAGHUE: Yes, my instructions, your Honour, are to oppose that amendment on the grounds first that it is not encapsulated in the amended application, it is not encapsulated in the amended special case and perhaps more importantly that while the point was flagged in a way in reply as a possible issue raised, when it was raised with my friend yesterday by her Honour Justice Kiefel the point was not embraced and it is still not clear to the Commonwealth exactly how the point is put in terms of the boundaries of the asserted repugnancy. So it is not clear to us exactly what case we are to meet in relation to the validity of the provision.

FRENCH CJ: Thank you, Mr Donaghue. We might just adjourn briefly to consider the course we should take.

AT 2.23 PM SHORT ADJOURNMENT

UPON RESUMING AT 2.27 PM:

FRENCH CJ: The Court is of the view that leave should be granted to make the amendments proposed by Mr Niall. We are also of the view that it would be useful to hear further oral argument in relation to the points raised in the amendment. We propose that the parties should provide us with written outlines – brief written outlines – no later than 9.00 am on Thursday and that we would hear argument on this question, continuing the balance of the argument on the other questions today, at 2.00 pm on Thursday.

MR DONAGHUE: If the Court pleases.

FRENCH CJ: Yes. Yes, Mr Donoghue.

MR DONAGHUE: Thank you, your Honour. Your Honours, if I can return to section 500. Section 500(1)(c) appears, we accept, to contemplate that a decision might be made to refuse to grant a protection visa relying on one or more of Articles 1F, 32 or 33(2) of the Refugee Convention. While the section does appear to contemplate a decision of that type, we submit that this section itself does not create a criteria for the grant or refusal of a visa and that consistently with the scheme created by section 65 of the Act, where a visa must be granted if criteria are met and refused if not met, there must, therefore, have been perceived to be an interface between those three articles and one of the criteria for a protection visa. The obvious criteria where that interface arises is section 36(2) and the concept of protection obligations under the Convention.

HAYNE J: Why? Why is not 500 the character test - 1F, I can understand you routing in 36, but why 32, 33?

MR DONAGHUE: Well, your Honour, certainly in relation to 1F the link is clear, we submit, and 1F just negates the existence of protection obligations.

HAYNE J: It is not disputed in this case I think, is it, that this plaintiff is not someone to whom 1F applies?

MR DONAGHUE: It is not disputed. So then the question arises, is the paragraph to be linked into other criteria, or given that the phrase is referring to three different articles of the Convention and section 36 refers in terms to obligations under the Convention should it be linked in there. I accept the possibility that it could be that there is overlap between a decision under Articles 32 or 33 and other criteria, but we submit that there is no reason to consider that there is an exact nexus or overlap between the operation as a matter of international law of Articles 32 and 33(2) and the prescribed criteria under the regulations or the character test in the Act. The fact that there is no such necessary coincidence, and I refer, for example, to health criteria prescribed under the regulations to the ‑ ‑ ‑

HAYNE J: Could there be any case of a decision relying on 32 and 33(2) which is not within the purview of the character test, in particular, 501(6)(v) I think it is?

MR DONAGHUE: Yes – sorry, your Honour, could there be a decision under ‑ ‑ ‑

HAYNE J: Relying on 32 or 33(2) which did not engage one or more elements of the character test.

MR DONAGHUE: Your Honour, I think the answer to that question is that those sections would always fall within the scope of that subsection but the matter that arises, we submit, is that it is open under the Act for Parliament to choose a criteria for admission to live and work in Australia that is different to the criteria that applies to – to take 33(2) for example, to the circumstances in which a refugee could be returned to face persecution. That is a higher bar and there is no reason to read the Act as preventing Australia from deciding to refuse admission to a refugee even though Australia could not properly expel that refugee to face persecution in his or her home country. That is dealing with 33(2).

In relation to Article 32 - and I will need to develop this submission a little later - that is an article that applies only in respect of a refugee who is lawfully in the State. We submit that there is a settled and clear body of judicial opinion in other countries and in this country to the effect that a person is not lawfully in the country just because they are physically within the country and that they need to have been granted a right to reside.

I will take the Court a little later in my submissions to a recent decision of the United Kingdom Supreme Court where a unanimous decision in the Eritrea Case where the Supreme Court held that a refugee who in that case had been in the country for over 13 years while seeking admission through various procedures was not lawfully in the country and, thus, did not benefit from the protection that Article 32(1) would have provided had she been lawfully in the country. So, our submission to foreshadow where I am going ‑ ‑ ‑

KIEFEL J: Does that mean it is usual to see it than more as a deportation provision to someone who has been granted some form of status to stay domestically?

MR DONAGHUE: Yes, indeed. There is then a limit, once you have been granted that right of residence the Convention acknowledges that you have formed a greater level of attachment to the community and there thus is a higher bar for entitling expulsion.

KIEFEL J: The Article also requires that the person to be expelled have certain rights to have put forward their case.

MR DONAGHUE: It does, when it applies.

KIEFEL J: In relation to section 202 here, in relation to deportation, a person would be accorded those rights. So the section 202 deportation process would provide for the rights envisaged by Article 32.

MR DONAGHUE: We submit that it would, yes.

KIEFEL J: So the focus really then is Article 33 which, as you have conceded, would come within the section 501 character test and it provides for right of review as well.

MR DONAGHUE: Indeed, but 33(2), we submit, sets quite a high bar and it does it for a very good reason, because if you fall ‑ ‑ ‑

HAYNE J: Well, be it so. Before you come to develop that point, and I understand the importance of that point to your argument, does it follow from your argument that there can never be a decision to refuse to grant a protection visa relying on Article 32? It seems to me that that is the inevitable consequence of your submission.

MR DONAGHUE: It is and ‑ ‑ ‑

HAYNE J: Therefore the Act misspeaks, does it, when it refers to refusal to grant relying on 32?

MR DONAGHUE: It refers to refusal to grant or cancellation.

HAYNE J: I understand that.

MR DONAGHUE: Yes, so the cancellation limb might be engaged in respect of 32. The “refusal to grant” limb does miscarry, and it miscarries because, as I noted before the luncheon adjournment, it proceeded on an assumption as to the meaning of the phrase “protection obligations in the Act”. It proceeded on an assumption that if you could be expelled consistently with the Convention you did not have protection obligations.

Now, your Honours, perhaps it might assist if I can take the Court to NAGV 222 CLR 161 because the Minister in that case argued that you could refuse to grant a protection visa on the basis of Articles 32 and 33, and that argument was rejected by the Court. If your Honours turn to the report of the argument at page 165 and go down to about point 2 on the page, you will see recorded the argument:

Other provisions inserted by the Migration Reform Act indicate that the substantive limitations derived from Arts 32 and 33 of the Convention, rather than the definition of the refugee in Art 1, were thereafter to apply as the touchstone of eligibility for the grant of a protection visa. Sections 500(1)(c), 502(1)(a)(iii) and 503(1)(c) of the Migration Act contemplate that a decision may be made to refuse to grant a protection visa, or to cancel a protection visa, in reliance on Art 32 or 33(2) of the Convention.

So the argument that was advanced consistently with the EM at the time did contemplate a decision of the kind that your Honour Justice Hayne just put to me. But the Court held, in rejecting that argument, at paragraphs 56 and following, that having accepted at paragraphs 42 through to 47 that Article 1F was a provision that would entitle a decision‑maker to refuse to grant a protection visa, then sets out at 56 the terms of Article 33(2) and the Court then says this in the joint judgment of six members of the Court:

The special provisions made in Arts 32 and 33(2) with respect to expulsion “on grounds of national security or public order” (Art 32) and to those who are a danger to security (Art 33(2)) attract comparison with the terms used in Art 1F to identify those to whom the Convention “shall not apply”.

Then the next paragraph suggests that the reference to those two articles was included “for more abundant caution”. Then over the page it is said near the top of the page:

Accordingly, while the attention of the Full Court in this case was not drawn to the presence in the Act of the references to Arts 32 and 33(2), nothing turns upon it. The presence of these references elsewhere in the Act does not detract from the construction of s 36(2) adopted in these reasons.

The construction that is being referred to there is the construction recorded at paragraph 42 which is that the phrase:

protection obligations under [the Convention]” describes no more than a person who is a refugee within the meaning of Art 1 –

So, in our submission, paragraph 57 of NAGV, in its concluding sentences, indicates a rejection of the argument that the Minister had there advanced that one could refuse a protection visa on the basis of those two articles and it is a rejection because those two articles do not speak to the question, is a person a refugee within the meaning of Article 1, unlike 1F which does speak to that question.

HAYNE J: Can you restate that proposition?

MR DONAGHUE: Certainly, your Honour. The Court, as we read that paragraph, paragraph 57, rejected the idea that because a person fell within Article 32 or 33(2), that did not mean, according to that paragraph, that a person was not owed protection obligations, as that phrase is used in the statute, and that, we submit with respect, makes sense because if a person falls within Article 32, for example, and this as I mentioned a moment ago only applies to a refugee lawfully in the territory, but if we assume a refugee lawfully within the territory who could be expelled consistently with Article 32 of the Convention, that refugee still cannot be expelled to their country of origin if they have a well‑founded fear of persecution there because section 33 prevents it. So the fact that you fall within Article 32 does not mean that you are not a person who is entitled to protection under the Refugee Convention because 33(1) of the Convention limits the destinations of expulsion. You can expel to anywhere except a place where the person has a well‑founded fear of persecution.

HAYNE J: Might I suggest that the argument you have just advanced slips and slips at the point of equating owed protection obligations generally with the proposition owed protection obligations by Australia and that the failure to distinguish between those two represents a slide in the proposition which masks, or reveals rather, its error.

MR DONAGHUE: Your Honour, reading the phrase “protection obligations” as meaning a refugee within the meaning of Article 1 of the Convention, in my submission, does not distinguish between Australia or any other country. If a person has a well‑founded fear – in this case, if the plaintiff has a well‑founded fear of persecution in Sri Lanka, then he is a refugee within the meaning of Article 1 of the Refugee Convention and the question of which parties to the Convention owe him protection obligations then depends on where he is. If he is physically within Australia, Australia will have certain obligations with respect to him. If he is lawfully in Australia, Australia will have more obligations with respect to him, but being physically present is sufficient to get him a number of rights, most importantly including 33(1).

That means, according to NAGV, he gets a protection visa even if he could be expelled. That is the point made in paragraph 59 on the same page, your Honours, where it is said in the second sentence:

The adoption by the Act of the definition spelled out in Art 1 of the Convention may have given this benefit –

that is the grant of a protection visa –

to refugees to whom in particular circumstances Australia may not, as a matter of international obligation under the Convention, and upon the proper construction of the Convention, have owed non‑refoulement obligations under Article 33.

In other words, even if Australia could permissibly under international law expel you to your country of origin consistently with – or expel you under Article 32 is perhaps an easier example – you still are entitled under the Act to a protection obligation even if, as a matter of international law, that would not have followed. The benefit goes wider than the Convention requires. Our argument accepts the authority of NAGV as to the way the phrase “protection obligations” in 36(2) works, but it does, we accept, have the consequence that Justice Hayne put to me that in some respects the merits review right purportedly conferred by section 500 of the Act does not work.

It works in relation to Article 1F. It would work in relation to certain kinds of visa cancellation decisions. It does not, we submit, create any particular anomaly and, indeed, an anomaly would follow, we submit, if the right of review under section 500 did arise because there were a series of questions asked yesterday about the nature of the review that would take place in the AAT under section 500. It was put by my friend, Mr Niall, that it would be a full merits review in the ordinary way and your Honours were given a note this morning explicating some of the provisions that might protect that.

There is under the ASIO Act in the excluded provisions for people in this category a right of merits review conferred by that Act and when it is possible to review a security assessment pursuant to that regime, the AAT is specially constituted in a division called the Security Appeals Division and there are a series of provisions enacted specifically in the AAT Act to manage the use of national security classified information and the protection of national security classified information within that regime. The nature of the right, the merits review right, is confined so that it is not a full merits review right of the ordinary kind, but is more restricted.

If your Honours turn to the bundle of legislation and the back tab, we have extracted the relevant provisions from the AAT Act. If I could just take your Honours through them quickly. It is behind tab 16. If your Honours turn to page 18 of the extract, you will see that in section 19(6) that there are certain powers when conferred on the tribunal that are to be exercised only in the Security Appeals Tribunal and they include the merits review under section 54 which is merits review of a security assessment. On the next page, section 21AA(2) provides for the constitution of the tribunal, “presidential member and 2 other members.”

Turning onto page 86, section 38A imposes an obligation on the Director General to lodge particular materials with the Tribunal. Then, most importantly, sections 39A and 39B provide a particular procedure that operates only when the AAT is reviewing a security assessment made by the Tribunal. The proceedings under subsection (5) have to “be in private” and the right of the parties to be present referred to in subsection (6) is subject to subsection (9).

Subsections (8) and (9) provide for a certification procedure by the responsible Minister that can have the result that the right of a party to be present is excluded and that their right to access to some of the evidence relied upon or the submissions made are excluded. So this is a statutory modification of the rules of procedural fairness as applying in the AAT, when the AAT is responsible for undertaking matters relating to security. Finally then, on page 106 of the extract, section 43AAA(3) provides that:

The Tribunal must not make findings in an assessment that would, under section 61 of the Australian Security Intelligence Organisation Act 1979 –

which provides for the AAT assessment to replace an ASIO assessment, do that –

unless those findings state that, in the Tribunal’s opinion, the information is incorrect, is incorrectly represented or could not reasonably be relevant to the requirement of security.

So, again, the function is narrowed. Now, I accept that those provisions are not engaged in this case but they do display a particular regime that Parliament has enacted in relation to matters pertaining to the review of security assessments when made by ASIO, the expert decision‑maker.

If section 500(1) does operate to require all decisions to exclude refugees to be made only by reference to the Convention criteria and not by reference to other security criteria set by the Parliament, then the consequence would be that in place of a limited review of the expert decision‑maker with particular statutory protections, there would be a general review of the substance of the security questions on wider grounds absent those protections.

KIEFEL J: You say that is an unintended consequence?

MR DONAGHUE: Yes, I do.

KIEFEL J: What about the review under section 202 for deportation based upon a security assessment? That is not mentioned in section 19(6).

MR DONAGHUE: No, and that is a procedure that has been expressly provided for and I do not put that as an unintended consequence. But it is what it is, your Honour. But in relation to the particular question of review of decisions of this kind, we submit that there is not any need or gap exposed by the absence of merits review of a decision of a kind that engages PIC 4002, because that is the very thing that section 36(b) of the ASIO Act is deliberately excluding. It is deliberately excluding merits review for recommendations by ASIO in relation to decisions under the Migration Act.

KIEFEL J: Except for section 202.

MR DONAGHUE: Except for section 202, yes.

KIEFEL J: You have to deal with it.

MR DONAGHUE: No. Well, your Honour, I accept that it is there, but, in my submission, its presence does not mean that there should be thought to be merits review on wider terms; it goes the other way, in my submission. It supports the proposition that merits review is not available in other circumstances and it turns, in our submission, on ‑ ‑ ‑

KIEFEL J: It is not as if the security assessment under section 202 comes in as a side wind. It specifically provides that the deportation is made upon that basis, so ‑ ‑ ‑

MR DONAGHUE: But the deportation power will be involved in the context of a non‑citizen who otherwise has a right to remain and reside in Australia.

KIEFEL J: It is still an adverse security assessment which you say requires the particular provisions of the AAT Act to make provision for the types of determination.

MR DONAGHUE: Sorry, your Honour, I think I have misspoken; if I could withdraw my earlier answer? The exclusion of the merits review right under Division 2 of the ASIO Act does not operate in respect of the subsection 202 decision, so the merits review in that context would take place under the ‑ ‑ ‑

KIEFEL J: Yes, I did not understand you to have asserted that.

MR DONAGHUE: Yes, well, I had not asserted it but I should have, so the decision ‑ where a review is available under – this part does not apply in relation to a security assessment in relation to decisions of specified kinds other than decisions for the purposes of subsection 202.

HAYNE J: So there has to be a statement of reasons and there is the engagement of the ASIO Act review process. Is that right?

MR DONAGHUE: Yes, and the protections.

HAYNE J: Yes. Now, you referred earlier to the absence of engagement of the AAT Act special provisions about the security appeals division as being what you described as an unintended consequence. Is that right?

MR DONAGHUE: I said, your Honour, that the – well, yes, your Honour, it ‑ ‑ ‑

HAYNE J: What is the legal principle that you then assert connects that observation with the proper construction of 500(1)(c)?

MR DONAGHUE: Section 500(1)(c), in our submission, proceeds on a mistaken assumption as to the way that these decisions are to be made, so it is intersection with the – or it is failure to properly integrate with the decision‑making provisions that do reflect the way these decisions are in fact made shows that the anomaly otherwise created by that misapprehension as to the basis upon which protection visas could be refused should be given – work should not be undertaken as a matter of statutory construction to attempt to correct the anomaly when the statutory regime is otherwise coherent. It just assumes a category of decision ‑ ‑ ‑

HAYNE J: Well, let us understand that. You are saying we read down the plain words of 500(1)(c) because if we do not do that there is an unintended consequence that some provisions of another Act are not engaged? Is that the proposition?

MR DONAGHUE: No.

HAYNE J: What is the proposition?

MR DONAGHUE: Your Honour, the conferral of a right of merits review against a decision taken on a particular ground cannot, in our submission, be meaningful if a decision cannot be taken on that ground.

So we do not seek to create that statutory anomaly. We submit that that anomaly is a consequence of Parliament proceeding upon a basis that was argued before this Court in NAGV to be correct but was found to be wrong. The construction of the regime, in our submission, cannot proceed. We must take account of the fact that Parliament made that mistake, as revealed in the subsequent decision of this Court.

I accept it has a somewhat anomalous consequence in that while aspects of 500(1)(c) work, the 1F aspect of it works, other aspects do not. But the Court appeared to understand and accept that in NAGV when it said these provisions might have been included out of abundant caution and recognised that the Act might result in the conferral of a visa in circumstances where that was not otherwise necessary.

The other point we would make, your Honour, is that even if it were to be concluded that decisions in a security type context that might attract the operation of Article 33(2) or Article 32 where it applies were only properly to be made through a mechanism that could be reviewed under 500(1)(c), that tells one nothing about the position of a person who is refused a protection visa on health grounds or because the grant would be prejudicial to the Commonwealth’s relations with another country. At the time the protection visa was created you could be refused if you had a debt to the Commonwealth.

Those provisions would all have required the refusal of a protection visa to somebody who was a refugee and in that circumstance, if those criteria are validly prescribed under 31(3) of the Act, the consequence, we submit, must be that even though there had never been a decision that could be reviewed under section 500 of the Act, the person would not have a visa, would be required to be detained and would be required to be removed.

KIEFEL J: Are there currently any health criteria?

MR DONAGHUE: There is a requirement to have a chest X‑ray and to be examined by a Commonwealth Medical Officer, but the criteria do not ‑ ‑ ‑

KIEFEL J: They do not exclude anyone?

MR DONAGHUE: No, they do not mandatorily exclude, though of course section 65 of the Act does contemplate health criteria – the possibility.

KIEFEL J: The possibility.

MR DONAGHUE: So even in relation to that case, that kind of case, and to go back, for example, to the initial protection visa criteria where a debt to the Commonwealth was a possible criteria, if the regime of the Act contemplates the mandatory detention and removal of a refugee who does not have a protection visa because of a debt to the Commonwealth, it follows that as a matter of statutory construction these provisions are capable of applying to a person who is a refugee.

They are capable of requiring the mandatory detention and removal of a refugee, even though that person is owed protection obligations under 36(2). That demonstrates, we submit, that the argument that the Act elevates the concept of some protection obligations to a level that means there can be no other criteria that justify refusal should be rejected.

Similarly, subsequent amendments to the Act and, here, the most notable is the introduction of 36(3) through to (7), contemplates again, by reference to Parliament, providing that Australia is taken not to have protection obligations, to a category of persons – persons who can enter or reside elsewhere – who might still well be refugees as a matter of international law. Australia may well still have protection obligations under the Convention to people who fall within 36(3) but that, under the Act, does not matter – that the person cannot receive a protection visa because of the deeming provision in 36(3) and, therefore, they are required to be detained and removed.

The third country protection provisions to which Mr Niall referred in Subdivisions AI and AK are a little different like 198A. They are concerned with people who have not yet been assessed. The position there, we submit, is different because if you do not know whether a person is a refugee or not, then there is a real difficulty with compulsory expulsion other than to a country which is going to properly assess and answer that question because, otherwise, Australia might breach its non‑refoulement obligations because it will not know whether or not it can return the person to their country of origin. So, those provisions, we submit, do not bear on the immediate question.

FRENCH CJ: Can I just come back for a moment, sorry, to 500? It may be that you have covered this previously, but if one looks 500(1)(c) – 500(1)(a) talks about decisions of the Minister, 500(1)(b) talks about decisions of a delegate, 500 just talks about a decision to refuse to grant a protection visa, relying upon, et cetera, Article 32 or 33(2). Now, a decision that to refuse a protection visa for non‑compliance with public interest criterion 4002 – even if it be assumed that the grounds for that kind of assessment fall entirely within 33, you would say is incapable of being a decision under 500(1)(c).

MR DONAGHUE: Yes, because it is not a decision based upon, relying on, Article 30 of 1F, 32 or 33.

FRENCH CJ: Well, do you have to recite – do you have to say I am relying on 33 or ‑ ‑ ‑

MR DONAGHUE: The PIC criteria will be different. So, there may be cases where the reason you fail PIC is because you are a sufficiently bad threat so that you also fail 33(2).

FRENCH CJ: One cannot, simply, review that as a municipal law application of the qualification on Australia’s protection obligations under the Convention.

MR DONAGHUE: In my submission, not for two reasons because there are two important differences between the PIC and 33(2). The first is that if you are a person who falls within 33(2) of the Act then, in most countries, you would be entitled to be refouled and under the Migration Act regime, you would be required to be refouled to your country of origin. So it is a decision of obviously very great significance for the person concerned, given the prospect it has for future persecution.

We submit that it is well open to Australia under the regime created by the regulations under the Migration Act to say that even though we do not wish to expose a person to the consequences of refoulement to their home country, nevertheless, we assess them as a sufficient risk to Australia’s security so that we do not want to admit them in order to live and work in Australia. So the bar is set by PIC 4002 at a level – a direct or indirect risk to Australia’s national security. That is nothing like ‑ ‑ ‑

HAYNE J: It is Australia’s security as defined and that is different from Australia’s national security.

MR DONAGHUE: That may be so, your Honour.

HAYNE J: I thought you expressly accepted that at point 8 of your oral submissions summary.

MR DONAGHUE: Your Honour, the most important difference is that it is Australia’s national security as defined in the ASIO Act and this is my second point, I said there were two. The second is that security for the purposes of PIC 4002 is expressly intended to be both Australia and responsibilities to other countries. So that you could refuse admission under PIC 4002 even if a person was not a threat to Australia’s security.

FRENCH CJ: Is this what you meant earlier when you spoke of PIC 4002 setting a higher bar than Article 33?

MR DONAGHUE: Well, your Honour, if I said that I misspoke. Article 33(2) sets the higher bar.

FRENCH CJ: All right.

MR DONAGHUE: But PIC 4002 sets a wider net, if you like. There is both a height difference and a width difference. The question that is being asked in 4002 might say that Australia does not want to admit a person because of the risk they pose to an ally whereas Article 33(2) would not readily envisage an inquiry of that kind. There may be a point at which there is some relation between Australia’s national security and the security of other countries. But the definition in paragraph (b) of the section 4 of the ASIO Act is wider. Your Honours will see in the legislative bundle that we have ‑ ‑ ‑

HAYNE J: And is wider than the concept of security as used in Article 32 as well as 33(2)?

MR DONAGHUE: No, your Honour. There is a closer correlation there, we submit. Section 33(2) posits in its terms a higher level of threat and there are a number of decisions by superior courts in other countries, so it is regarded – reasonable grounds for regarding as a danger to the security of the country as opposed to on grounds of national security. We submit that the expression in 32(1) is somewhat broader than that in ‑ ‑ ‑

HAYNE J: But do you accept that 4002 is wider again than 32 because it goes beyond national security?

MR DONAGHUE: Yes, your Honour, yes, I do.

FRENCH CJ: Now, is it - to hopefully not confuse our dimensional metaphors, it sets a higher bar to entry, potentially?

MR DONGHUE: PIC 4002?

FRENCH CJ: Yes.

MR DONAGHUE: Yes, it does. It does because there is no reason that Australia has to set the bar for entry at the same point as it would set the bar for expulsion – or as the bar is set for expulsion. In the event, of course, that section 32 applies. I keep qualifying it in that way because we submit in relation to most unlawful non‑citizens that section 32 will be irrelevant to the inquiry.

I was going to take your Honours to – I will just give your Honours the reference in our legislative bundle. We have included the explanatory statement for the current form of PIC 4002 behind tab 10 and it makes it clear that the wider definition of “security” in paragraph (b) of the ASIO ACT definition is part of the point of the reformulation of the public interest criteria.

CRENNAN J: What do you say about bullet point 3 on that first page?

MR DONAGHUE: Well, we accept that, your Honour, but the public interest criterion used to refer just to the competent authority rather than ASIO, and it did not make any reference to the definition of “security” in the ASIO Act, so it was just made express that the ASIO Act definition was the applicable definition for the purpose of decisions being made.

HAYNE J: The former provision referred only to national security not to Australia’s responsibilities to foreign countries.

MR DONAGHUE: When read with section 4, yes.

CRENNAN J: Yes.

MR DONAGHUE: Your Honours, passing over the question of the validity of 4002 in light of the Court’s direction, if I could turn to the third aspect of our submissions, referred to in the oral outline. The starting proposition for which is the construction of section 198 of the Act that this Court adopted in Plaintiff M70, and if I could invite the Court to turn to that case at 244 CLR 144, and to turn first to page 178, in the judgment of your Honour the Chief Justice. If your Honours have paragraph 54, at the second half of that paragraph your Honour said:

Absent the possibility of removal to a declared country, the person cannot be removed from Australia before there has been an assessment of his or her claim to be a refugee. If the person is found to be a refugee, then removal under s 198(2) will necessarily have to accord with Australia’s non‑refoulement obligation. If the person is found not to be a refugee, then removal to his or her country of origin is open, or removal to some other country willing to accept the person.

Your Honour there appears to have envisaged two points that we submit are of importance in this case: one is that one cannot remove under section 198(2) contrary to Australia’s non‑refoulement obligations, and the other is that even after a person has been found to be a refugee, removal would be possible as long as it was consistent with those obligations and we embrace both of those propositions. Similarly in the plurality judgment at page 190, or perhaps starting on 189, your Honours in the plurality refer to the observations made by the Court in Plaintiff M61 respecting the proposition that:

the Migration Act contains and elaborate and interconnected set of statutory provisions directed to the purpose of responding to the international obligations which Australia has undertaken in the Refugees Convention and the Refugees Protocol.

Then, in paragraph 91, your Honours said:

A second important consideration that bears upon the proper construction of s 198, read with and in the light of s 198A, is that the ambit and operation of a statutory power to remove an unlawful non‑citizen from Australia must be understood in the context of relevant principles of international law concerning the movement of persons from state to state.

Your Honours then developed that in paragraph 94 by referring specifically to Australia’s obligations under the Refugee Convention and to the fact that Australia:

would act in of its international obligations under those instruments if it were to expel or return “in any manner whatsoever” a person with a well‑founded fear of persecution “to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of particular social group –

That, of course, is a quote from Article 33(1) of the Convention. Then at the top of 191:

Accordingly, for Australia to remove a person from its territory, whether to the person’s country of nationality or to some third country willing to receive the person, without Australia first having decided whether the person concerned has a well‑founded fear of persecution for a Convention reason may put Australia in breach of the obligations it undertook as party to the Refugees Convention ‑

The Commonwealth, of course, accepts that having regard to the construction that was adopted of section 198 in Plaintiff M70 that it follows from the passages I have just referred to that removal to a country in circumstances where that would place Australia in breach of its obligations under 33(1) of the Convention is neither authorised or required by section 198 of the Migration Act. What that means, we submit, is that while it is quite possible on any of the various prescribed criteria in the regulations to refuse to grant a protection visa to someone who is a refugee, the fact that the person is a refugee remains important.

It remains important because it constrains the way that the removal power operates so that the removal power will not operate to place Australia in breach of its obligations under the Convention, but that is not to say that the prospect of removal to a place, a third country, where a refugee will not have a well‑founded fear of persecution is constrained because Article 33 of the Convention says nothing about removal to such a country. Article 32 would speak to that situation if it were engaged, but Article 32 will impose a constraint that limits the power and obligation to remove under 198 only if it applies, and we submit that for the reasons I am about to develop it does not, and the result is ‑ ‑ ‑

HAYNE J: Only if it applies as a matter of international law?

MR DONAGHUE: Yes.

HAYNE J: Only if it applies on the true construction of the Act? Which?

MR DONAGHUE: We submit that the true construction of the Act is subject to Australia’s obligations as a matter of international law, so the questions are the same. We understand the passages that I have just referred to from M70 to be identifying the constraint as a constraint that resides in the fact that the Migration Act is to be read as intended to operate in a way that is subject to Australia’s obligations as a matter of international law and so if Article 32 of the Convention does not prevent removal and if you are proposing to remove only to a place where there is no well‑founded fear of persecution, then neither Article 32 or 33 impose a relevant limit and the statutory obligation operates.

Now, none of that, of course, denies that the person who might be removed is owed protection obligations under the Act because that just means they are a refugee and the Commonwealth accepts that they are a refugee and thus that it must comply with its Convention obligations, but the Convention does not, we submit, textually as a matter of international law – and there appears to be – we do not think this is in dispute in this case – there are a range of different levels of connection between a refugee and a country that are relevant to whether particular rights under the Convention are attracted.

So whether one calls it the hierarchy of obligations or attachment obligations is the phrase that is used by Professor Hathaway in his work, Professor Guy Goodwin-Gill also embraces the concept. One looks first at the question of whether a state has jurisdiction over a refugee and some rights arise there. A few more rights arise at the point of physical presence. For example, there are, with respect to all refugees, not only the right in Article 33, but there are non‑discrimination rights in Article 3, there are personal status rights in Article 12, access to courts in Article 16, elementary education in Article 22, but a significant number of rights require a refugee to be lawfully within a State, relevantly here Article 32, but also importantly Articles 18 and 26.

If I could invite your Honours to turn to the Convention and to look first at Articles 18 and 26. Your Honours can see in Article 18, which is about self-employment, that the obligation of a contracting state here applies to a refugee who is lawfully in the territory and in respect of that subset of refugees they must be receive:

treatment as favourable as possible and, in any event, not less favourable than that accorded to aliens generally in the same circumstances, as regards the right to engage on his own account in agriculture, industry, handicrafts and commerce and to establish commercial and industrial companies.

We submit that plainly, and the text supports that, that is not a right that is available to a refugee simply because they are physically within a country that is a contracting state. There is no obligation to allow a person just because they are a refugee to establish their own business to operate within a country. It is necessary for them to have been granted a right to reside in the country before the Convention in its terms goes so far as to require a contracting state to accord that right. Similarly, if your Honours look at Article 26 concerning the freedom of movement:

Each Contracting State shall accord to refugees lawfully in its territory the right to choose their place of residence to move freely within its territory, subject to any regulations applicable to aliens generally in the same circumstances.

Again, your Honours, we submit that it is plain from the text and not surprising that until a state has got to the point of deciding that it will allow a refugee to take up residence within its territory, the state is not required to allow complete freedom of movement to such a person. The last article in this set of articles that apply only to persons lawfully in is 32:

The Contracting States shall not expel a refugee lawfully in their territory save on grounds of national security or public order.

That is not an obligation that prevents expulsion of any person within the territory of a state who is a refugee. It is an article that prevents the expulsion of people who have taken up residence and thus achieved a higher level of connection and are in that way then entitled to that protection.

Could I ask the Court next to turn to the decision in Minister for Immigration v QAAH 231 CLR 1. This is another case in which the Court looked at the meaning of the concept of protection obligations under the Convention, specifically here concerning the rights of a person who under the old temporary protection visa regime had been granted a temporary protection visa and, thus, lawfully entitled to live in Australia for a period of years and a question then arose as to how the concept of a protection obligation arose, or was to be assessed, in respect of a person who had been granted that status; did you need to look again afresh at the question whether the person had a well‑founded fear of persecution or was it instead necessary to look at the Refugee Convention Article 1C concept of cessation to decide that they were not entitled.

It is relevant because in addressing that concept the Court looked at an argument based on some of these other articles in the Refugee Convention. So if your Honours turn to page 14, paragraph 34, in the judgment of the plurality, five lines down in that paragraph, it was said:

The Convention has not been enacted as part of the law of Australia, unlike, for example, the Hague Rules and the Warsaw Convention. Section 36 of the Act is the only section (apart from the interpretation section, s 5) which refers in terms to the Convention.

Then Justice McHugh and Gummow’s remarks in Khawar are quoted:

“[T]he Act is not concerned to enact in Australian municipal law the various protection obligations of Contracting States found in Chs II, III and IV of the Convention.

Some of which I have just taken your Honours through –

The scope of the Act is much narrower. In providing for protection visas whereby persons may either or both travel to and enter Australia, or remain in this country, the Act focuses upon the definition in Art 1 –

Then a few lines under that quote the plurality say this –

And this Court would seek to adopt, if it were available, a construction of the definition in Art 1A of the Convention that conformed with any generally accepted construction in other countries subscribing to the Convention, as it would with any provision of an international instrument to which Australia is a party and which has been received into its domestic law (36).

I underline that, your Honour, because it is a recognition of the desirability of the courts of this country, insofar as they are able to do so, construing the Convention in a way that accords with the way that other contracting states have also construed the Convention and it is particularly relevant in connection with the UK Supreme Court case I am about to come to. Then, your Honours, in paragraph 36:

Section 36, like the Convention itself, is not concerned with permanent residence in Australia or any other asylum country, or indeed entitlements to residence for any particular period at all.

It is again recognising the distinction between refugee status and asylum. Then in paragraph 38:

Having regard to the sections of the Act and Regulations under it to which we have referred, and which are concerned with the duration of visas, these conclusions follow . . . When the visa expires, the holder must make a fresh application for another visa, in this case, another protection visa, because otherwise that person would have no entitlement to remain in Australia: and, a, or the relevant criterion for the grant of a protection visa at that time is that the non‑citizen, the applicant, is a person to whom Australia has . . . protection obligations –

The Court concluded at paragraphs 47 and 48 that the attempts to overcome that conclusion by reference to other protection obligations found in Chapters II, III and IV of the Convention should be rejected. It was argued essentially that because the temporary protection visa had meant that the respondent in that case had become entitled to some other rights under the Convention, that he could not thereafter be removed from Australia. In paragraph 48 the Court said that:

The argument would fail even if the Act left open unqualified recourse to the articles upon which the first respondent seeks to rely –

but it then held that it did not and specifically, in paragraph 49, rejected the idea that Article 32 would have prevented expulsion. That is, the Court accepted that even somebody who had been lawfully in Australia on a temporary protection visa for a number of years could be removed consistently with Article 32 of the Convention once that visa had expired.

This plaintiff, by contrast in this case, was lawfully in Australia for 50 minutes. He arrived on a special purpose visa at ten past eleven which expired at midnight and, thereafter, he has been an unlawful non‑citizen subject to detention under the Act. We submit that it is clear that he is not lawfully in Australia and that the concept of an unlawful non‑citizen was introduced in the Migration Act in order to make that status plain.

Your Honours, I have mentioned a few times the decision of the UK Supreme Court in what I have called the Eritrea Case. The proper name of the case is R(ST) v Secretary of State for the Home Department [2012] 2 WLR 735. This was a case where the plaintiff, who was of Eritrean nationality, had arrived in the United Kingdom and claimed refugee status and had been accepted to be a refugee because she had a well‑founded fear of persecution in Eritrea but the United Kingdom wished to remove her to Ethiopia and the argument concerned whether or not expulsion to Ethiopia would be inconsistent with the Refugee Convention. The Supreme Court unanimously held that it would not and ‑ ‑ ‑

GUMMOW J: Wait a minute. How did the Convention get into the municipal law of the United Kingdom?

MR DONAGHUE: It came in, your Honour, through an express provision that - your Honour can see the relevant legislation on page 742 of the Act. I am struggling to put my finger on the provision, your Honour, but I will do so in a moment.

GUMMOW J: I think it is not all that clear, actually.

MR DONAGHUE: No.

FRENCH CJ: There is a reference to asylum claims in the statute somewhere, mentioned at 743, is there not?

MR DONAGHUE: Yes, if your Honours look at paragraph 18 of the report there is a reference to the Immigration Rules which picks up in (ii) the fact that:

he is a refugee, as defined by the [Refugee] Convention and Protocol ‑ ‑ ‑

HAYNE J: Section 2 of the Act as referred to in paragraph 19 says that nothing in the rules:

shall lay down any practice which would be contrary to the Convention.

MR DONAGHUE: Thank you, your Honour, I was looking to put my finger on that. The case proceeds on the footing ‑ ‑ ‑

GUMMOW J: I know it does.

MR DONAGHUE: I understand why your Honour is putting it to me.

GUMMOW J: The case does not start at the beginning.

MR DONAGHUE: Yes, indeed, your Honour.

GUMMOW J: One looks at paragraph 1. From that much confusion flows, it seems to me. If you want to rely on it you had better make it clear what the frame of discourse was.

MR DONAGHUE: I accept that, your Honour. It does appear from the provision referred to in paragraph 19 that the Convention imposed a limit such that if removal would have been contrary to the United Kingdom’s obligations under the Convention it would not have been permissible under the relevant domestic law provisions, and the argument concerned the proper interpretation of, particularly, the words “lawfully in” in Article 32 for the purpose of determining whether or not that Article did impose a limit.

GUMMOW J: I think at paragraph 17 the Convention enters crabwise, as it were.

MR DONAGHUE: Yes, your Honour, but that is an appellate right. Your Honours, the discussion of the operation of Article 32 as a limit upon the right of states party to the Convention to remove commences at the outset, as your Honour Justice Gummow has noted, though perhaps not by setting, the legal framework as clearly as could have been done but their Honours refer, after having quoted Article ‑ ‑ ‑

GUMMOW J: The reason why I mentioned it to you is that the indirect way in which the Convention is drawn in seems to suggest that it is all of it, that it is all of the Convention, not just the definition of “refugee” because our structure, as you have been very heavily emphasising, is different.

MR DONAGHUE: Of course, your Honour, I accept that. The point that I am currently seeking to address is if your Honours were to accept the submissions that I have advanced in the second part of our oral argument, the consequence of that would be that there is a category of person who Australia agrees and accepts is a refugee, that it accepts are therefore the subject of obligations that Australia owes to other States, but that have nevertheless, not as a matter of domestic law, been admitted.

What then does the Act require to be done with persons in that category, and our submission is that the Act requires their detention and removal, subject only to the proposition that that removal must be consistent with Australia’s obligations as a matter of international law under the Convention because, as a matter of statutory construction, section 198 is to be read as intended not to place Australia in breach of those obligations on the basis of the principle in M61 and the discussion in M70.

HAYNE J: It is an essential step in that argument that there can be no decision to refuse a person a protection visa relying on Article 32.

MR DONAGHUE: Your Honour, it is not an essential step in that argument because we submit that there could be decisions to refuse a protection visa on grounds that have nothing to do with Article 32 or Article 33.

HAYNE J: I understand that, but you say there cannot be a refusal to grant a protection visa that relies on Article 32?

MR DONAGHUE: I do say that, your Honour, because section 33 will still create protection obligations to such a person and therefore that person – even if one said that contrary to NAGV, protection obligations mean something other than being a refugee within the definition of Article 1. If it meant something other than that it would still presumably mean a person who was protected from refoulement under Article 33(1) and a person who can be expelled under Article 32 may still be protected from refoulement under Article 33(1).

So to refuse to grant a person protection because of Article 32 would be to ignore other obligations that Australia has with respect to that person that entitled them to protection, so that is why I put it in that way. Your Honour, even if there could be a decision to refuse on that ground, in our submission, the proper construction of the Act operates upon whether or not the person who is a refugee actually has a visa; what matters is the status of the person. If they are an unlawful non‑citizen who does not hold a visa they must be detained and removed.

FRENCH CJ: Incidentally, the statutory framework for the grant of what is called asylum in the United Kingdom reflected in the Immigration Rules set out at paragraph 18 of the Eritrea decision seems to require the grant of asylum if a person “is a refugee”, and if “refusing his application would result in him being required to go” to a place where he would be at risk of “his life or freedom would be threatened on account of his race, religion” et cetera, so the non‑refoulement is all tied up with the actual grant of asylum under those rules.

MR DONAGHUE: Indeed, that is Article 33(1).

FRENCH CJ: That makes it different really from our structure.

MR DONAGHUE: Well, your Honour, the attempt that the Commonwealth had made pre‑NAGV was to say that our structure was the same, that our structure turned on Article 33 and nothing else, so that if Article 33 did not prevent removal you were not entitled to protection obligations, and that was the argument that did not succeed because of these wider obligations. We are endeavouring to put a construction of the Act on the footing of the interpretation that has been given to the Act, both in NAGV and in M61 and M70, and the consequence of it seems to us to be that one cannot refuse a protection visa just because there are particular articles like Article 32 or Article 33 that may not be engaged.

As I say, with respect, to most refugees Article 32 will not be engaged. Article 33(1) will always be engaged unless the exception in 33(2) applies. But even in that case, even if you are a person who could be refouled because of Article 33(2), it would not follow that you are not a refugee, that the person might still be a person who has a well‑founded fear of persecution in their country of origin and thus a person who according to NAGV is owed protection obligations and would have to be granted a protection visa because they satisfy 36(2) of the Act.

GUMMOW J: In paragraph 18 in NAGV there is a reference and a collection of authorities as to the different methods of adoption of the Convention. In footnote (37) there is a reference to T v Home Secretary [1996] AC 742 at 759 to 760. I think that is a reference to Lord Mustill’s speech.

MR DONAGHUE: Yes, I think, your Honour, that is a reference to the same speech that your Honour had cited in Applicant A. Your Honours, the issue that the Supreme Court had to decide in the Eritrea Case was identified in paragraph 2 as whether the fact:

Does the protection of article 32 extend to a refugee who has been temporarily admitted to the United Kingdom according to the rules of its domestic law –

for the purpose of determining status –

but has not yet been given leave to enter or to remain here?

That process to determine status had taken a long time in the case of the plaintiff in that case, as is recorded at paragraph 5 – taken with appeals some 13 and a half years to work through the system – but there had never been a decision to admit into the United Kingdom.

The argument was advanced on the footing that the length of that delay itself did not bear upon the meaning of the words “lawfully in”, notwithstanding its clearly inordinate nature. While the plaintiff in that case had been permitted under the relevant legislative provisions to live in the community in the United Kingdom, she had remained liable to detention at any time by operation of a decision made to detain her under the provision quoted in paragraph 15 at the bottom of page 742.

The discussion of the operation of Article 32 itself relevant commences at paragraph 21. Paragraph 21 sets out a version of the different levels of attachment needed before different rights under the Convention are available to a refugee who is within a state. Then paragraph 22 reflects the fact that the level of attachment for Article 32 is commonly referred to as “lawful presence”. Their Honours refer at paragraph 23 to the other two articles that I have already taken the Court to where the same connection criteria applies.

The operation of or the meaning of the criteria was then explored from paragraph 29 onwards, with the court emphasising at paragraph 31 that the court’s task remained one of interpreting the document to which the contracted parties had committed themselves by their agreement and that there was no warrant to give effect to what the parties might in an ideal world would have agreed.

Those comments and some others I will come to in a moment were directed to some disagreement amongst the academic commentators as to how the article works. The court took the view that Professor Hathaway’s view was perhaps more aspirational than reflecting of the way that states had actually given effect to the Refugee Convention. So at paragraph 41, for example, their Honours said that – at the end of the paragraph:

One should bear in mind too that there may be a profound gap between what commentators, however respected, would like the article to mean and what it has actually been taken to mean in practice –

I mention that, your Honours, because our friends rely almost exclusively on the views that Professor Hathaway has expressed in arguing that Article 32 is engaged in this case. The conclusion that the court reached was that the operation of the words “lawfully in” – and this is paragraph 40 of the judgment:

must be taken to refer to what is to be treated as lawful according to the domestic laws of the contracting state.

In other words, only when under the domestic law of a relevant state are you admitted to residence in that country do you become entitled to the rights that are set out in Articles 18, 26 and relevantly 32.

FRENCH CJ: Does it depend upon residency or admission?

MR DONAGHUE: Well, admission to lawful status within the territory, so not temporary admission but admission of a kind that permits a person to take up residence. So that temporary admission, for example, as in this case, where they had actually been residents for a long period of time but that had not been regularised in a way that entitled the plaintiff to stay, did not bring her within ‑ ‑ ‑

FRENCH CJ: So, for example, somebody who is here on a student visa is therefore a lawful non‑citizen is not lawfully in the territory for the purposes of Article 32?

MR DONAGHUE: Your Honour, certainly while their visa was in force they are and that is the QAAH type situation where the temporary protection holder would be entitled at that period of time, so if the decision was made to deport someone who held a visa that ‑ ‑ ‑

FRENCH CJ: I was just focusing on your qualification. It seemed to be permanent residence, was it?

MR DONAGHUE: No, entitled to take up lawful residence, but not necessarily permanent residence. Your Honours, I will not take your Honours through the cases, but there are referred to, in our submissions, a number of decisions in the United States which have adopted the same interpretation, that is “lawfully in” turns on the immigration law of the relevant contracting state to the Convention.

Similarly, sitting as a single Judge in this Court Justice Stephen took the same approach in Simsek v McPhee, which we have also referred to in writing. Your Honour Justice Gummow in Al‑Kateb made what I accept is just a passing reference to the equivalent provision in respect of stateless persons. That is at paragraph 106 of your Honour’s judgment and your Honour there appeared to indicate that Mr Al‑Kateb would not have had the benefit of the protection from expulsion under the Stateless Persons Convention, which is relevantly the same as Article 32, because he was not “lawfully in their territory” - again, the same words.

The Full Federal Court in Rajendran v Minister for Immigration 86 FCR 526 likewise interpreted the article in the same way. We submit that there is a consistent body of judicial opinion that interprets the article in that way, but the consequence of that interpretation is that Article 32 does not relevantly impose any obligations on Australia with respect to the expulsion of an unlawful non‑citizen including the plaintiff.

The consequence of that, we submit, is that unless Article 33 of the Convention did relevantly impose a limit the removal of the plaintiff under section 198 of the Act would not be in breach of the Convention and therefore would be authorised and required if there were, or if there becomes, a third country to which he can be removed where he would not have a well‑founded fear of persecution.

The text of Article 33 itself, we submit, plainly does not impose any limit on the capacity of a contracting state to remove a person to a place where they will not be persecuted. Consistently with that view in M70, which is 244 CLR 144, at the bottom of page 158, your Honour the Chief Justice said in paragraph 4:

Article 33.1 nevertheless permits the removal of a refugee to a “safe” third country, ie one in which there is no danger that the refugee might be sent from there to a territory where he will be at risk.

We respectfully submit that that is plainly the case and evident from the wording of the Article itself. Similarly, we submit that observations of the plurality that I have already taken the Court to, particularly at paragraphs 90 and 94, likewise appear to contemplate that removal to a third country where there was not persecution would not contravene Article 33(1) and likewise in NAGV at paragraph 29 the Court accepted that to send the applicant to Israel in that case would not have contravened Article 33(1).

Your Honours will recall that in NAGV the issue was that the applicant was a father and his son. They were Russian nationals. They had a well‑founded fear of persecution in Russia but they were eligible to enter Israel pursuant to the right of return and the question was, did that mean that they were not refugees because Article 33 would allow them to be sent to Israel. The Court accepted that Article 33 would not have prevented the sending to Israel but held that that did not mean that a protection visa should not be granted.

So there is a consistent body of opinion again, we submit, that recognises that removal to a safe third country does not contravene Article 33. The consequence of that, we submit, your Honours, is that there is no international law fetter on the capacity of Australia to send the plaintiff to a safe third country and for that reason, the second question that is set out in the stated case should be answered favourably to the defendants.

Your Honours, I can deal quite quickly with the remaining part of the case which concerns the construction of 189 and 196 and the decision in Al‑Kateb. Your Honours will have seen from our written submissions that we approach this in a number of stages. We submit that, first, the question that divided the Court in Al‑Kateb is not reached in this matter because, on the facts that are recorded in the special case book, it cannot yet be concluded that there is no real likelihood or prospect that the plaintiff will be removed in the reasonable, foreseeable future.

Your Honours will have seen in paragraph 33 of the special case, that there are set out the steps that have been taken and that are still being taken in an effort to reach agreement with the third country to accept the plaintiff and while it is true that there is presently no country to which the plaintiff could be removed, all that that means is that his removal is not presently reasonably practicable and, therefore, that his detention continues to be authorised under section 196.

If your Honours conclude on the basis of these facts that it cannot yet be said that there is no real likelihood or prospect of removal, then the point of division in Al‑Kateb is not reached. The detention is plainly still authorised and there is no occasion to consider the question of whether Al‑Kateb should be reopened. If your Honours find contrary to that submission that the point is reached, we submit that Al‑Kateb should not be reopened.

We note, your Honours, that there were two points that divided the Court in Al‑Kateb. There was a statutory construction point and a constitutional point. The statutory construction point divided the Court four/three, but it is significant that there were those two divisions because, as your Honour Justice French pointed out in Wurridjal and as flows through the jurisprudence in this area, a somewhat more liberal approach is taken to the reopening of constitutional questions than statutory questions for the obvious reasons that statutory questions can be revisited by the Parliament if it chooses to do so.

We submit that Al‑Kateb was a fully reasoned and considered decision of a Bench of seven members of this Court and that very strong grounds should be needed before the Court would reopen the question fully argued and decided in that matter and that in this case what is essentially sought to be done is to re‑agitate on both sides exactly the same arguments as were run in Al‑Kateb. The primary basis upon which it is said that the construction adopted by the minority in Al‑Kateb should be preferred are references to the principle of legality and the principle that legislation should be construed having regard to Australia’s international obligations. They were matters that were at the forefront of the mind of the Court that decided Al‑Kateb. They were fully looked at and considered by the Court and the matter was decided as a matter of construction.

Similarly, and, your Honours, I will not take the Court through the criteria in John v Federal Commissioner of Taxation, but your Honours will know that one relevant matter is whether or not the issues have been the subject of extensive analysis in other decisions and the case forms part of a stream of authority. While it is true that there had not been decisions in this Court engaging with the relevant constructional question before Al‑Kateb, there had been many cases in which the point had been examined and argued in the Federal Court and, of course, it had then been argued in the Full Federal Court in El Masri and the matter was brought to this Court as a removed ‑ ‑ ‑

GUMMOW J: No, John’s Case is not concerned with stare decisis in constitutional cases, is it?

MR DONAGHUE: No, but, your Honour, I am addressing here the statutory construction point. We accept that there is a more liberal attitude adopted in constitutional cases, although even in constitutional cases, as your Honours will recall in The Second Territory Senators Case there was a detailed analysis by both Justice Gibbs and Justice Stephen as to the responsibilities of a justice when asked to reopen an earlier decision. Both of their Honours in that case concluded, contrary to their view in The First Territory Senators Case that they should follow that prior decision, notwithstanding that it was a constitutional matter essentially because all that it was thought to be done was to re‑argue the point that had already been decided by the prior decision.

We submit that Al‑Kateb has not led to considerable inconvenience, that it has not been shown that any relevant point was overlooked or misunderstood and that the Act has been administered on the basis of that decision now since Al‑Kateb was decided and that our friends have not demonstrated that this is a case in which it would be appropriate to reopen that decision.

GUMMOW J: Now, do you say anything about Mr Kirk’s submissions this morning?

MR DONAGHUE: Now, I was going, your Honour, to address them very briefly in a moment but only very briefly. If I could just finish on the distinction of Al‑Kateb and the question of whether anything sufficiently has changed. Our friends, as we understood them, relied on three points. They said, one, this is different to Al‑Kateb because the plaintiff is a refugee. That, we accept, is a difference, but it is relevant only in this respect.

It is the fact that the plaintiff is a refugee that means that he cannot be removed to his home country because of the obligations Australia has under the Convention. He is, therefore, for that reason in functionally the same position as a stateless person, as Mr Al-Kateb is a person who does not have a home country to which he can be removed. That is what brings the debate within the arena or the area with which Al-Kateb is concerned, but it does not otherwise change the analysis.

Reference was made by our friend to the existence of non‑compellable powers in the Act by which the Minister could grant a visa. Mr Al‑Kateb had applied for refugee status. He sought review in the RRT unsuccessfully and as a consequence there was available to the Minister in that case the non‑compellable power under section 417 of the Act to grant a visa. That power is identical, relevantly identical to the power now found in section 195A as well as 417, so that is not a difference, the existence of an additional non‑compellable power that could have applied by reference to the same criteria.

Finally, our friends referred to the residence determination powers. We submit, again, that there is no relevant difference. The very premise for those provisions is that an unlawful non-citizen is required to be kept in detention and the residence determination is introduced as a version of immigration detention by reason of the statutory deeming. The extent to which it is in fact burdensome depends entirely on the conditions that are able to be imposed under that statutory regime, but the regime still exists – still contemplates the existence and operation of the closed regime that led the Court to the construction that was adopted in Al-Kateb.

BELL J: Nonetheless, it is a regime that has an unlawful non‑citizen in the community as distinct from being in immigration detention and to that extent detracts somewhat from the neatness of the scheme in Al‑Kateb. If you are an unlawful non‑citizen you are in detention pending removal. Now provision is made for an unlawful non‑citizen to be in something that is for certain purposes deemed to be immigration detention but in other respects is not.

If one turns to what it is that this plaintiff seeks, it is not that he be entitled to live and work in Australia as if he were a lawful non‑citizen. It is that he not be detained, conceivably indefinitely, and he acknowledges that his liberty in Australia, pending orders made by this Court, might be subject to conditions.

MR DONAGHUE: Although he does not identify the source of the power for those conditions and there is a ‑ ‑ ‑

BELL J: Indeed. There is an issue about that, but it is not from the plaintiff’s point of view in issue that it would be appropriate for the Court to make such an order.

MR DONAGHUE: That is true, your Honour, although one difficulty with the plaintiff’s case, as we apprehend it, is that they have tied their case, as we now understand it, to the question of section 500 of the Act and whether or not there could be a refusal or cancellation of their visa on one of the three identified grounds. But at the moment, of course, there is no application for a visa and there is no visa that can be cancelled. So it is not apparent how a decision could be made on one of those grounds in respect of this plaintiff. It is not, therefore, clear what the endpoint at which – whether the plaintiff’s case is they can now live forever in Australia in this status to which your Honour refers.

BELL J: Well, let us look at the end point being that at a point when it is possible to remove the plaintiff to another country who is willing to accept a person whom Australia considers poses a risk of the type described in the assessment, at that point it would be open to remove. The challenge is to the continued detention in confinement as distinct from being in the community, albeit it subject to any ‑ ‑ ‑

MR DONAGHUE: The scenario your Honour puts to me is the scenario for which we contend, that they can be removed in that situation and the question then is, is detention authorised until removal becomes possible? We submit two things; one, that in circumstances where the power to make a residence determination is a non‑compellable power that resides in the Minister. In circumstances where the Minister has not exercised that power, we submit that the statutory regime that operates upon an unlawful non‑citizen is exactly the same as it was Al‑Kateb. We also submit that there cannot be drawn a sharp distinction between the community and not because immigration detention is defined in such a way in section 5 that it covers quite a broad range. It is not just detention in an immigration detention centre, it is also detention in, relevantly, other places approved by the Minister in writing. So there are a whole series of different ‑ ‑ ‑

GUMMOW J: Including prisons.

MR DONAGHUE: Including prison in some cases, yes, but also including alternative places of detention, sometimes designated houses. There are a range of options under section 5 quite independently of the immigration residence determination program that allows for different levels of detention.

HAYNE J: There might be a lot places but it requires:

(a)being in the company of, and restrained by:

(i)an officer; or

. . .
(b)being held by, or on behalf of, an officer ‑ ‑ ‑

MR DONAGHUE: Yes, but the words “on behalf of” are important in that context, your Honour, so there are ‑ ‑ ‑

HAYNE J: I would have thought the words “being held” were not unimportant.

MR DONAGHUE: I accept that, your Honour, but it is the case that those powers are from time to time exercised so that carers of, for example, minors held in alternative places of detention, who are friends or designated to hold a person on behalf of an officer and thus excursions and other matters of that kind can take place consistently with the regime of the Act. I simply make the point that there is not a sharp dichotomy.

Your Honours, in light of the time, can I say this on the constitutional points. We have addressed them in writing, in essence, on the constitutional point arising in relation to Chu Kheng Lim. We respectfully rely upon and adopt the judgment of your Honour Justice Hayne and Justice Heydon in Al‑Kateb as reflecting the appropriate analysis as to the operation of those sections and we do not seek to add to or improve in any way upon them.

In relation to Mr Kirk’s argument this morning, we submit that the argument seeks to run together things that are not appropriately ran together. The condition precedent to detention that he identifies is somewhat unclear. Under the section, the condition precedent to detention

is being an unlawful non‑citizen. There is no question that a court can determine that status. The fact that there may a controversy about whether or not an error was made in refusing to grant a visa is a different question. The difficulty that Mr Kirk apprehends is in a challenge to that decision, not to a challenge relating to the matters that sections 196 and 198 make relevant to his detention and, in any event, the difficulties that he identifies are not difficulties that arise from any act.

They are difficulties that are apprehended about the way that a court exercising federal jurisdiction would exercise that federal jurisdiction, having regard to common law principles, including public interest immunity and principles determining the content of procedural fairness. If a court makes decisions in the application of principles of that kind, by reason of which a challenge to an administrative decision fails, that does not give rise, we submit, to any constitutional question of a Communist Party kind. The point with which that case was concerned was an attempt to make decisive judgments made by those other than courts exercising appropriate jurisdiction. Your Honours, if it please the Court, those are my submissions.

FRENCH CJ: Thank you, Mr Donaghue. Mr Renwick.

MR RENWICK: Your Honours, in view of the way the argument has panned out, we do not seek to add to our written submissions. In view of the fact that Thursday afternoon appears to relate to non‑constitutional matters, may we be excused?

FRENCH CJ: Yes.

MR RENWICK: If it please the Court?

FRENCH CJ: Thank you, Mr Renwick. Yes, Mr Niall.

MR NIALL: If the Court pleases. Firstly, can I deal with the question of section 500(1)(c). In our submission, on an ordinary reading of that provision, it plainly contemplates a decision to refuse a protection visa on any one of the three identified articles, including Article 32 and there is no way of reading it otherwise.

In terms of the sequence of language in 500(1)(a), (b) and (c) and the fact that the decision of the Minister is identified in paragraph (a), a delegate in paragraph (b) and not in paragraph (c), if the Court goes to section 502, it is expressly provided or contemplated there that the Minister, acting personally, will make a decision:

(iii)to refuse to grant a protection visa, or to cancel a protection visa, relying on one or more of the following Articles –

and the three articles are there set out. Again, it plainly contemplates a decision to refuse a protection visa on any one of the three articles. In our submission, that is properly read as a decision in relation to Article 1F under section 65 and a decision in relation to Article 32 or 33(2) under section 501. If a decision is made under section 501 may feed back into section 65 which requires the decision‑maker to ask whether the grant is not prevented by section 501.

So, in our submission, it is right to interpret the Act that the power in relation to Articles 32 and 33 to refuse a protection visa are found in the character provisions which fit comfortably within subsection (6)(d)(v). Of course the Act, having so identified it, regulates the decision‑making process in the ways we explained in our primary submissions.

In the course of his submissions, my learned friend submitted that there is no right to a person to remain in the community or in Australia if the person does not have a visa and he took the Court to the position of the Act in 1992, the Reform Act. In our submission, it is – and then he said that there is no right to live and work for someone who does not have a visa. There is no question of living and working. The question is whether the person is entitled to remain and on the position of the Commonwealth, the plaintiff is entitled to remain in Australia, at least until Australia finds a safe country that can take him. That could be for an indefinite period. At least, to that extent, there is an entitlement to remain and a prohibition on his removal.

Further, it is not right to say, as it may have been in 1992 or 1994, that there was no ability to be in the community. In section 189(3), there is expressly provided now a right to live in the community without a visa. There is a discretion in respect of a person detained in an offshore entry place to not to be detained. That is a clear example of someone who is remaining in the community without a visa without any violence to the scheme.

For the same reasons, someone who is on a residence determination, again, is remaining in the community and outside of detention. So, in our submission, the right to remain, relevantly, does not equate to a visa. The issue it becomes is not so much the right to remain, but the conditions on which the person will be entitled to remain, be it in detention or in the community, and the lawfulness of that depends on purpose.

In terms of the relevance of the decision of the Supreme Court in the Eritrean Case, in our submission, no assistance can be derived from that for

a couple of reasons. Firstly, the incorporation of the treaty is different, and it is a question not of the treaty, but the domestic law. Secondly, the provisions of the domestic law in the United Kingdom were relevantly different and the Court will see, in paragraph 14 the operation of section 11 of the Immigration Act which provided that for the purposes of the United Kingdom domestic law, the person was deemed not to enter the United Kingdom, and that provision which, under domestic law of the United Kingdom, provided that there was no entry was a significant aspect of the reasons for judgment, both of Lord Hope and also of Lord Dyson in Lord Dyson’s judgment at paragraph 56. There is specific reference to the significance of section 11.

Now, in our submission, the relevant operation of Article 32, if it be relevant, is the question of lawfulness in the territory for the purpose of domestic law. In the present case there is no comparable provision to section 11 and, secondly, the plaintiff entered lawfully into the territory. He was given a visa to do so. Thirdly, he was accepted as a refugee. Therefore, in our submission, for the purposes of Article 32, he is lawfully in the country as a refugee and could only be expelled or removed in compliance with Article 32(2).

So, in our submission, the decision in Eritrea is of no assistance to the Court and ultimately it is a question of what the Act does in relation to the incorporation of the Convention and the limits, if any, on removal and the extent to which a person is lawfully in the territory. They are the matters we wish to say by way of reply, subject to the resumption on Thursday, if the Court pleases.

FRENCH CJ: Yes, thank you, Mr Niall.

MS MORTIMER: If I might trouble the Court. Counsel on behalf of the Commission would seek leave to be excused from the further hearing of this, given we are not making any oral submissions?

FRENCH CJ: Yes, you have that leave.

MS MORTIMER: If the Court pleases.

FRENCH CJ: The Court will now adjourn until 9.45 tomorrow morning for pronouncement of orders.

AT 4.10 PM THE MATTER WAS ADJOURNED
UNTIL THURSDAY, 21 JUNE 2012

[2012] HCATrans 145

Key Legal Topics

Areas of Law

Administrative Law

Constitutional Law

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Standing

Statutory Construction

Natural Justice