Plaintiff M61/2010E v Commonwealth of Australia & Ors; Plaintiff M69 of 2010 v Commonwealth of Australia & Ors [2010] HCATrans 218

[2010] HCATrans 218

[2010] HCATrans 218

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M61 of 2010

B e t w e e n -

PLAINTIFF M61/2010E

Plaintiff

and

COMMONWEALTH OF AUSTRALIA

First Defendant

MINISTER FOR IMMIGRATION AND CITIZENSHIP

Second Defendant

STEVE KARAS

Third Defendant

TERRY LEW

Fourth Defendant

Office of the Registry
  Melbourne  No M69 of 2010

B e t w e e n -

PLAINTIFF M69 OF 2010

Plaintiff

and

COMMONWEALTH OF AUSTRALIA

First Defendant

MINISTER FOR IMMIGRATION AND CITIZENSHIP

Second Defendant

SUE ZELINKA

Third Defendant

SECRETARY, DEPARTMENT OF IMMIGRATION AND CITIZENSHIP

Fourth Defendant

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

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 24 AUGUST 2010, AT 10.16 AM

Copyright in the High Court of Australia

__________________

MS D.S. MORTIMER, SC:   May it please the Court, I appear on behalf of the plaintiff with my learned friends, MR R.M. NIALL and MS K.E. FOLEY, in Plaintiff M61.  (instructed by Allens Arthur Robinson Lawyers)

MR S.G.E. McLEISH, SC:   May it please the Court, I appear with my learned friends, MS L.G. DE FERRARI and MR P.D. HERZFELD, for Plaintiff M69. (instructed by Holding Redlich)

MR S.J. GAGELER, SC, Solicitor‑General of the Commonwealth of Australia):   If the Court pleases, in each matter I appear with MR S.P. DONAGHUE and MR D.F. O’LEARY for the first and second defendants. (instructed by Australian Government Solicitor)

MR S.P. DONAGHUE:   If it please the Court, I appear for the third and fourth defendant in each matter.  (instructed by Australian Government Solicitor)

MS MORTIMER:   If the Court pleases, in terms of the division of time for the hearing of this matter and having discussed that with my learned friends, I propose to address the Court for this morning and leave my learned friend Mr McLeish this afternoon; leave my learned friend Mr Gageler most of tomorrow and my learned friend Mr McLeish and I would have a short reply tomorrow afternoon.  That is how we were proposing it would be dealt with if that is convenient to the Court?

FRENCH CJ:   Yes.

MS MORTIMER:   Your Honours, the Commonwealth describes the process which determines that the plaintiff is not a refugee and, therefore, not someone to whom Australia owes protection obligations as a non‑statutory process.  Now, underpinning the plaintiff’s arguments is a rejection of that characterisation for three reasons.  Each of those reasons are based on what we would submit are the inextricable links between the RSA process and the Migration Act.

The first of those reasons is that, properly analysed, the evidence reveals that the RSA process forms part of the Minister’s consideration of how to exercise his powers under section 46A(2) of the Migration Act and under section 195A(2) of the Migration Act.  That is, in our submission, the establishment of the process itself is evidence that the Minister has decided he will consider exercising these powers in relation to offshore entry persons and what remains to be determined through the execution of the functions in that process is for the Minister to decide how he will exercise those powers, whether it will be positively or negatively, and which of the two powers, either section 46A or section 195A, he will exercise.

We submit, having assigned the determination tasks to, firstly, departmental officers and then to independent reviewers, those tasks form part of the Minister’s consideration and they must be carried out lawfully and they are susceptible to review because they are part of the exercise of powers under the Migration Act.

If we are wrong about that, the second argument we make is this.  If the characterisation is not that the Minister has embarked on consideration through the RSA process, then our submission is that the RSA determinations are necessary preconditions to any consideration of the exercise of those powers because the scheme of the Act requires and contemplates that there will be some kind of assessment and determination in relation to offshore entry persons of whether Australia owes them protection obligations.

FRENCH CJ:   That is in respect of that class of visa.  Section 46A, of course, applies to any class of visa, does it not?

MS MORTIMER:  It does your Honour, it does, but our submission here depends on a close examination of the text of those provisions, the reasons they were introduced and their particular application to people who are coming and arriving at places like Christmas Island and who are almost universally invoking Australia’s protection obligations.

So our submission here is that the RSA process, when one looks at its place in the scheme, is a necessary precondition because the powers in section 46A in particular will not be capable of being exercised in relation to these offshore entry people unless there is some kind of assessment and determination of refugee status.

GUMMOW J:   Do we not have to start at the beginning?  What is it that provides a legal basis for the detention of your client?

MS MORTIMER:   Your Honour, that I was about to articulate as the third of our reasons and then I propose to start with that, your Honour.  Your Honours, if the Court pleases, the RSA process, in our submission, needs, as a matter of law, to be characterised as a process authorised and contemplated by and in aid of the Act and not sitting outside it and that is because otherwise it will not justify the continued detention of persons such as the plaintiff and the subjection of persons such as the plaintiff to the RSA process would not be a valid reason with in the Act to postpone their removal.

So the relationship, in our submission, between the purposes that must be identified within the sphere of the Act for detention and removal are such that the process, the RSA process, if it is to support the detention of persons such as the plaintiff in Australia and to postpone his removal, must be a process that is intimately connected with the Act and not sitting outside it.

CRENNAN J:   So you are saying it cannot be just information gathering or making inquiries outside the Act?

MS MORTIMER:   That is so, your Honour, because his detention would not be authorised for that purpose and it is clear, on our submission, that he has been detained so that he can participate in the RSA process and if that is so, we say that is because it is a process within the scheme of the Act and that is because it is the only gateway for these people to a visa.  Can I turn then to develop the argument about why we submit there must be a very close link between the RSA process and the Act in order to support the plaintiff’s lawful detention and to postpone his removal and to do that I want to take the Court to the interaction between the plaintiff and the detention powers and the exercise of the detention powers and the non‑exercise of the removal powers in relation to the plaintiff.

The first interaction of the plaintiff is with the Act and not the RSA process, and that is through his detention.  That stems, in our submission, fundamentally from the changes that were introduced to this legislative scheme in 1992 through the Migration Reform Act and the bifurcation in sections 13 and 14 of the Act of non‑citizens into lawful and unlawful non‑citizens.  It is that status, in our submission, under this scheme which then determines the exposure of persons such as the plaintiff to detention.  Now, just to pause, if the Court pleases, and note that there has been some modification to the facts that have been agreed between the parties as to the initial detention of the plaintiff, your Honours will find the new agreed fact in paragraph 1 of the plaintiff’s reply submissions.

We had erroneously supposed that there had been an exercise of power in relation to the plaintiff and those travelling with him under section 245F of the Migration Act and we accept that is not the case, rather, the agreed facts are as set out in that passage in paragraph 1 of the reply submissions, so that the first coercive power by way of detention that was exercised against the plaintiff was that under section 189(3) of the Act.  If I might just take your Honours to that provision.  Section 189 deals with a number of categories of persons either in or outside the migration zone and there is no dispute, for the purposes of this case, that section 189(3) is the relevant authority to detain the plaintiff.  Again, we emphasise that it is a fact that he does not hold a visa that exposes him to this detention.

The detention notices that were given to the plaintiff accord with this provision.  Your Honours will find them in the supplementary application book.  The first detention notice is at page 10 of the supplementary application book.  Your Honours will see that this is the notice that was issued at the port at Flying Fish Cove to the plaintiff invoking section 189(3).  Your Honours will note that, unlike the detention power that perhaps is the more commonly exercised one under section 189(1), 189(3) is expressed in discretionary language.  Neither in the notice nor in the evidence before the Court is there any indication of the basis for the exercise of the discretion in relation to the plaintiff or otherwise but, in our submission, that is not particularly material.  What is material is the fact of the exercise of the power against him, that is, that his liberty has been interfered with and continues to be interfered with.

HAYNE J:   This marks the start of detention.  It does not carry us further into the continuation of detention yet.

MS MORTIMER:   No, it does not, your Honour.  The continuation of it is authorised by section 196, and I will come to that in a moment.  Section 196 – and perhaps if I turn to that now – in our submission, is the provision which authorises the continued detention of a person in the position of the plaintiff until one of three events occurs.  I will return to this in a moment.  I want to take your Honours to the documents that support how this was exercised against the plaintiff.  Essentially, there are two streams contemplated by section 196; either the person will be granted a visa, that is, a person will have his or her status in Australia transformed from unlawful to lawful, or the person will be removed from Australia.  I include in that the notion of deportation.  Those are the two options that condition the length of detention, in our submission, subject to the operation of section 198, to which I will also come.

HAYNE J:   This marks the terminus of detention.  So we have had the beginning and the end and we are presently, I think, to come to focus on this intermediate period, the period between commencement and termination and what is going on in this intermediate period.

MS MORTIMER:   Yes, your Honour.

FRENCH CJ:   That is the words “detained until”.

MS MORTIMER:   In section 196, your Honour, the language is “must be kept in immigration detention until”, yes.

FRENCH CJ:   So that the non‑statutory process – let us call it the RSA process, to use a neutral term – the RSA process, on your submission, has statutory significance because it feeds into the period of detention.

MS MORTIMER:   Feeds into it, determines the length of it and determines the outcome of it, your Honour, in our submission.

FRENCH CJ:   But it is not itself the exercise of any statutory power.

MS MORTIMER:   On our first argument we would submit it really is because it is a ‑ ‑ ‑

FRENCH CJ:   But you do not rely upon that proposition for your third argument?

MS MORTIMER:   No, your Honour.  The significance of the relationship between the plaintiff’s detention and his exposure to removal and the RSA process is really twofold, in our submission.  Firstly, there must be this close connection for the lawful purposes of detention and removal to be fulfilled and that tells against the Commonwealth’s submission that somehow the RSA process sits far away and disconnected from this.  Secondly, it is the principal way in which we submit the plaintiff’s rights and interests are affected because his liberty is affected and the only way he can regain his liberty in Australia is through the grant of a visa and the only way he can get into the visa scheme is through the exercise of power either under section 46A or section 195A.

HAYNE J:   But you said “regain his liberty in Australia”.  The geographic addition may mask the fact that liberty more generally may be at stake.  I know you are about to come to 198 and removal as soon as reasonably practicable, but he is detained where he is until either removed or granted a visa.  Now, he is at liberty from Australian coercive power on the happening of either occurrence.

MS MORTIMER:   Yes, your Honour, that is so.  That is why, in our submission, it can be described as regaining his liberty.  He had, until the exercise of power against him under section 189(3), his liberty.  Indeed, until he entered Flying Fish Cove now on the agreed facts he had his liberty.  If I may return, if the Court pleases, to the way that section 196 operated against the plaintiff.  The direction that was given in relation to section 196 is found in several documents in the supplementary application book and if I can take the court first to page 13 of the supplementary application book. 

It is a little difficult to follow the order of these, but the document at page 13 of the supplementary application book is headed “Request for Services” and is a request issued by a person, if your Honours look just under the first heading where it says “To: (Detention Services Provider, Serco General Manager)”, so that is the independent contractor, as we understand it, that manages the Christmas Island detention facility.  An officer, who is identified as Steven Lander in the next table, makes a request in relation to the plaintiff, and the plaintiff’s personal details are given in the fourth table down.  There is then an assertion that the plaintiff is “known or reasonably suspected to be an unlawful non-citizen” and an invocation then of the definition of immigration detention in section 5 of the Act that:

a person is in Immigration detention, if being held by or on behalf of an officer at a place of detention –

So in order to fulfil those conditions Mr Lander requests that the detention services provider, also caught by the definition of “officer” under the Act, perform the following functions and the one that is identified in the following table is to hold the detainee in detention at North West Point, which we understand to be part of the Christmas Island Detention Centre, and the source of the power for the initial detention is identified again as section 189(3).  So this document, in our submission, picks up the concept in section 5 that a person can be detained by or on behalf of an officer, picks up the system of independent contractors by which the detention facility operates and authorises the holding on behalf.

If your Honours go to page 18 of the supplementary application book your Honours will see what appears to be a more formal notice to hold in immigration detention again directed to the contractor identifying Mr Lander as the officer, identifying the plaintiff again on the basis of his status being an unlawful non‑citizen and directing that he be held on Mr Lander’s behalf at the specified place on Christmas Island.  We would submit, consistently with the way that section 196 is designed to operate, there is no end point in a notice such as this that is specified because the event which will bring the detention to an end cannot yet be anticipated.

FRENCH CJ:   Is this a statutory notice or an administrative form?

MS MORTIMER:   Your Honour, my understanding is that it is an administrative form, but I do not understand it to be prescribed under the Act, but I might have that checked and clarified, if your Honour pleases.  Now, there is a third form which appears to complete the kinds of authority seen to be necessary to do what needs to be done to the plaintiff, and that is on page 21.  That again is picking up some of the concepts in section 5 about detention involving restraint and conveyance.  So these documents, in our submission, put together identify the chain by which the plaintiff comes to find himself detained by this stage to be kept in immigration detention under section 196(1).

In our submission, there is no debate, so far as these powers are concerned, that they are purposive and to refer to one of the statements to this effect we would direct your Honours’ attention to the judgment of Chief Justice Gleeson in Al‑Kateb v Godwin (2004) 219 CLR 562 at paragraph 1. Now, his Honour was, of course, in dissent in the outcome in Al‑Kateb, but we would submit that this statement by his Honour remains accurate and we do not understand it to be the subject of any controversy.  It is about halfway through that paragraph, if the Court pleases.  His Honour says:

Detention is mandatory, not discretionary.  It is not a form of extra‑judicial punishment.  It exists “in the context . . . of executive powers to receive, investigate and determine an application by [the] alien for an entry permit and (after determination) to admit or deport”.

That, of course, is a reference to Lim’s Case, as the footnote reveals –

It is an incident of the exercise of those powers.  The Act envisages that the detention will come to an end, by the grant of a visa which entitles the alien to enter the Australian community, or by removal of the alien from Australia, either at the request of the alien, or following the conclusion of an unsuccessful attempt to obtain a visa.

Now, one of the things that we would emphasise about that observation by the Chief Justice is the centrality of the visa to what his Honour is saying because, aside from the circumstance, in our submission, where a person either requests to be removed or is being expelled without consideration, a person is held in detention, in our submission, because the fundamental purpose of the Act, aside from the initial ascertainment of a person’s status, is connected with the grant of a visa.

That is what the foundation of the Act is about.  That is the scheme by which a person becomes lawful in Australia.  That is the entire permission scheme by which a non‑citizen is entitled to enter and remain in Australia and the purposes of the detention power are, as his Honour observes, in our submission, similarly confined.  If that is right then two things flow.  Aside from an initial period of detention for a person in the position of the plaintiff to ascertain who he is, where he comes from, so that he may be removed, any continuation of his detention must be for the purposes that Chief Justice Gleeson outlined, and those purposes are for obtaining a visa and assessing his eligibility for a visa and deciding whether he should be granted or refused one.

CRENNAN J:   If the RAS process has a negative outcome and no independent review is requested, then the RAS process seems to operate to, to pick up the Chief Justice’s words, investigate and determine an application.  Is that right?

MS MORTIMER:   Yes, your Honour, it will always be, in our submission, in relation to offshore entry persons – and I will develop this a little more when I come to the terms of section 46A itself – but it will always be the only gateway through which a person gets a substantive determination of whether they are a refugee or not and it is that determination that then operates on the exercises of power and it is the exercises of power, and only the exercises of power under the statute, that can result in the grant of a visa.

CRENNAN J:   Whereas the independent review process, at least as set out in the 2010 documents, some might say it involves investigating but not determining.  That would be distinct from the RAS process with a negative outcome proceeding straight to removal.

MS MORTIMER:   In our submission, your Honour, they both have the same effect.  Although one is styled as an independent review of the other, each results in a substantive determination of whether a person is a refugee or not and that process of determination on the evidence is not again repeated.  It is not repeated once a person, if the bar is lifted, applies for a protection visa.  It is that determination, whether by the officer or the independent merits reviewer, that governs, substantively, the eligibility for a visa.  We would submit that that is the same effect at the first instance as on review.  We would submit that there is, in that sense, no relevant distinction to be made between the two processes, although clearly there is a distinction about who carries them out.

CRENNAN J:   I might have misunderstood something but I thought part of your argument turned on saying the independent review process still leaves something to be done by the Minister, that is to say, the Minister has to make a determination.

MS MORTIMER:   Yes, in that sense, your Honour, that is so.  We do say that because section 46A is a personal power.  That is so, but that does not affect the argument that what has been determined in relation to a person’s refugee status is still a substantive and, we say, a mandatory consideration for the Minister, but it is a consequence, we say, of the fact that the power in section 46A and section 195A is a personal power, that the Minister should be looking at the unfavourable ones as well as the favourable ones if he is to exercise the power personally.  That, of course, all hinges on our first characterisation of what is going on in the scheme, that is, that he has embarked on consideration and he is being informed by those determinations and only in that setting.

FRENCH CJ:   Is the assessment of a request for – it is not an application, of course, under the Act, it is a request, I think, for a determination of refugee status.  Is that solely by reference to Article 1A and the exclusions or does it also bring to bear the statutory qualifications that you see in sections 91R and following?

MS MORTIMER:   Your Honour, we submit that because the criterion in the RSA process is the criterion in section 36 of the Act ‑ ‑ ‑

FRENCH CJ:   Protection obligations.

MS MORTIMER:   Protection obligations, those parts of substantive Australian law, including therefore  91R, that affect the construction of Article 1A should be picked up in the process because ultimately it leads to the grant of a visa, the criterion of which we submit is the protection obligations.  One would not imply into the scheme a disconformity in the law to be applied.  One would be seeking to find conformity and some harmony in that.

FRENCH CJ:   It may be wrong to speak of them as qualifications; it may be that some would say they are just implementation of the obligations by defining them in a particular way.

MS MORTIMER:   That is so, your Honour, but, nevertheless, those provisions, such as section 91R that your Honour has identified, are intended to and do operate substantively on the components of the definition in Article 1A.  We would submit that just as much as the decisions of this Court that explain when a person’s fear of persecution is well founded need to be picked up in this process and constrain the determination, so do those aspects of the Migration Act.

FRENCH CJ:   That would inform, for example, sur place claim.

MS MORTIMER:   Yes, your Honour, that is so.  So modifications to the substantive rule, as opposed, for example, to those parts of the Act which deal with procedural requirements of a statutory Tribunal such as the RRT, we would not submit that those are the kinds of things that are picked up under the RSA process, but anything that goes to the meaning and application of the criterion in section 36 of the Act we submit are picked up.

If the Court pleases, to return to the second of the two aspects of the coercive powers that are exercised against the plaintiff which we submit require a close connection between the RSA process and the Act and also illustrate how his rights are affected, I have dealt with the detention power, but the second aspect – and this is the one that is picked up, as we understand it, to some extent by a question that was asked of us by the Court – is the operation of section 198 of the Act, the removal power.  If I may ask your Honours to go to that.

GUMMOW J:   You seek, amongst other things, an injunction preventing your client’s removal until determination of his claim, do you not?  I am looking at page 4.  So that would restrain what would otherwise be an exercise of the power under section 198, I suppose.

MS MORTIMER:   Yes, your Honour.

GUMMOW J:   Then the question is, what is the equity to get that restraint?

MS MORTIMER:   Yes, your Honour.  We would submit that the equity is that the scheme of the Act contemplates that he is a person who has invoked Australia’s protection obligations, will have those claims assessed and assessed lawfully and if they have not been assessed lawfully, he is entitled to have them assessed lawfully and for him as an offshore entry person, the only way to do that is through some kind of process such as the RSA process.

GUMMOW J:   You also seek mandamus that his application be dealt with in accordance with law.  What is the content of the notions of “law” and “lawfully” where there does not seem to be an immediate engagement of the statute?

MS MORTIMER:   Your Honour, we submit that the content of that is twofold:  procedural fairness and a proper application of the substantive law in the determination of Article 1A, so that a proper construction of those components in Article 1A, well‑founded fear of persecution, what persecution is, and a dealing with the claims as raised.

GUMMOW J:   You also rely for jurisdiction on 75(i) of the Constitution I see.

MS MORTIMER:   Yes, your Honour, that is probably not something we need trouble the Court ‑ ‑ ‑

GUMMOW J:   That is the treaty point, is it not?

MS MORTIMER:   It is the treaty point.

GUMMOW J:   Have you just been putting to us something that is connected to the treaty point as to how this claim is to be dealt with by the Executive in applying the treaty?

MS MORTIMER:   Your Honour, the better way that we would seek to put it is to recognise that the aspect of the treaty that has been picked up and incorporated into the Act is the concept of protection obligations in Article 1A, and that the scheme of the Act is that two things will happen, that there will be an assessment of those protection obligations, and if they are engaged, there will be protection afforded, and the way that protection is afforded is through the grant of a visa.

FRENCH CJ:   The obligation is non‑refoulement, is it not?

MS MORTIMER:   The key obligation is non‑refoulement.

FRENCH CJ:   That is Article 33, I think.

MS MORTIMER:   It is Article 33, your Honour, and I did propose to develop that a little later as to how we say that that, properly construed, is the scheme of the Act, that the scheme of the Act is to ensure that Australia respects its non‑refoulement obligation and it does that differently depending on the kind of person to which the Act applies in the circumstances of that person.  So it does it differently for offshore entry persons to the way that it does it for persons that arrive and are able to make a valid application for a visa without a discretionary power being exercised.

KIEFEL J:   Do you draw any connection between the obligation expressed as “non‑refoulement” and any power exercised in relation to removal - removal or not, I should say?

MS MORTIMER:   Your Honour, we submit that the scheme of the Act intends that a person to whom Australia owes protection obligations will not be removed from Australia in a way that contravenes Australia’s non‑refoulement obligation.  We do submit that there is a link between the manner in which the removal power is to be exercised and Australia’s non‑refoulement obligations.  We do submit that.

GUMMOW J:   So does the phrase “reasonably practicable” in 198(1) – do the practicalities include obligations concerning refoulement under Article 33 of the Convention?

MS MORTIMER:   Your Honour, we submit that they do in this way - that section 198 is operating in the context of this Act and in the context of a scheme that provides for the grant of visas, and heavily provides for respecting Australia’s protection obligations and, in our submission, it is appropriate to construe that term “reasonably practicable” as comprehending that there will have been an assessment of whether Australia’s protection obligations are engaged.

Now, there are a lot of provisions in the Act that make it clear that a person may not be entitled to repeated assessments of that and section 48B – A and B of the Act are an example of that.  If you have applied for a protection visa and you have been refused you cannot apply for another one unless the Minister gives you permission to do so, so you are exposed to removal.  But you have had an assessment within Australia in accordance with Australian law of whether you are a person to whom Australia owes protection obligations.  It is only once that is done that you are exposed to removal. 

We submit that the enactment of section 46A together with section 198A, because they are twin pillars of the scheme that was introduced in 2002 -and I see your Honours reaching for the Act.  I am going to come back to that because it is a very important part of our argument but they are two pillars of the “Pacific Solution”, as it was colloquially called in 2002.  But they are not intended, in our submission, to involve non‑observance of Australia’s protection obligations and they are not intended to involve the breach of the non‑refoulement obligations.  They are simply there to provide a different mechanism for assessment, one that at the time the government saw as less attractive to persons who were coming by boat and likely to provide a disincentive to people smugglers. 

Those were the policy reasons behind this, but it was not intended, in our submission, to do violence to the scheme of the Act, the scheme of the Act being to respect Australia’s protection obligations.  May I just draw your Honours ‑ ‑ ‑

GUMMOW J:   What is the significance for all of this?  You mentioned what happened 10 years or so ago, but there was historical precedence of some sort with the old‑fashioned DORS Committee was there not, in the 1970s?

MS MORTIMER:   Yes, your Honour.

GUMMOW J:   Thus the view used to be taken, I think, that decisions of the DORS Committee were not decisions under a statute so the AD(JR) Act did not apply to them.

MS MORTIMER:   Well, your Honour, in Mayer’s Case the Court found that the statute authorised ‑ ‑ ‑

GUMMOW J:   That was by the Minister?

MS MORTIMER:   Yes, your Honour, that was a determination by the Minister that is so, that is so.

GUMMOW J:   That is 6A, yes.  Not the anterior activities of the DORS Committee?

MS MORTIMER:   No, that is so, your Honour, that is so, but they were taking place, in our submission, in the context of a very different legislative scheme and always one must come back to, in our submission, the context of the legislative scheme.  Here we have now in 2010 a highly prescriptive legislative scheme intended, in our submission, comprehensively to regulate a person’s status, because from that status flows all the coercive powers and from that status flows also the obligation to remove.  So a very different kind of scheme from the scheme that existed prior to 1980, your Honour, we would submit.

GUMMOW J:   They do seem to have in common the engagement of the Executive in some ‑ ‑ ‑

MS MORTIMER:   They do, your Honour.

GUMMOW J:   ‑ ‑ ‑ outside process, outside a statute and you say that disjunction has not been achieved?

MS MORTIMER:   Either it has not been achieved, your Honour, or it is not possible lawfully to achieve it any more.  But, in fact, when one looks at what has happened it is not a disjunction at all because the 46A power requires, before its exercise can be considered, before its exercise can be undertaken, there has to be an assessment.  One otherwise does not know anything about this offshore entry person.  One has to inquire into who this person is, why he has come to Australia, what his claims are and there has to be some determination about that.  Now, the statute is in that sense silent on it, but it is a process, we submit, the statute requires for power to be exercised.

That is where it is very different from section 417 and those other discretionary powers upon which the Commonwealth relies for a parallel that occur at the end of a decision‑making process under the Act where the Minister has a wealth of information about the person from a series of determinations under the Migration Act on which to decide to exercise the power.  Do not need to imply in that sense, although there may be an administrative process that goes with that, you do not need one, but here in 46A, that is the first interaction of an offshore entry person with the Act and if there is not an assessment, then it is not possible for Australia to know whether its protection obligations are engaged in relation to this person.  So that is why we submit that the Minister by establishing the process has recognised that fact and, in that sense, he has decided to undertake a consideration and decided that his exercise of the power, how he will exercise the power, will be informed by the outcome of that process.

FRENCH CJ:   So is there lurking in that somewhere a decision which would be amenable to the AD(JR) Act?

MS MORTIMER:   A decision by the Minister, does your Honour mean?

FRENCH CJ:   No, a commitment to making a decision by adopting that process.

MS MORTIMER:   Yes, your Honour, there is.

FRENCH CJ: The whole point of the precursor of 46A(7), which was, I think, introduced in section 115 in the 1989 amendments, was to exclude AD(JR) review, that is, the no duty to enter, and then that was replicated in all sorts of other provisions.

MS MORTIMER:   That is so, your Honour, and it appears in several places in the Act, but our principal submission is that that device to avoid an exercise of judicial power to compel anything is irrelevant if the Minister has actually embarked on the consideration.  We say that is exactly what he has done by creating this process.

FRENCH CJ: But the logic of it was, I thought, just looking back to the explanatory memoranda and the second reading speech of section 115, to take this out of the category of decisions and therefore out of what is done under 46A and its precursors out of the category of decision‑making which would be amenable to review under the AD(JR) Act, and we are assuming the validity of it, of course.

MS MORTIMER:   Yes, we are, your Honour.  But we submit that, on the way that we put the case, the validity issue disappears because there is a process that has been decided upon, consideration has begun.

FRENCH CJ:   I suppose what I am asking is whether, consistently with that statutory scheme and its origins, one can have, as it were, a non‑statutory process which can somehow involve or engender a reviewable commitment by the Minister to make a decision which then drags it into the area of judicial review.  That is what you seem to be saying.

MS MORTIMER:   It is, your Honour, because we resist the characterisation of it sitting wholly outside the statute and we submit that it is simply the Minister directing functionaries on his behalf.

FRENCH CJ:   But it is the Minister putting his toe into the pool of 46A and he cannot get it out.

MS MORTIMER:   Yes, he cannot get it out, your Honour, without completing the process, that is so.  That is our principal submission.

HAYNE J:   Can I understand that against the background of the three sections with which we have presently been concerned.  We began at 189(3), we went then to 196(1).  So 189(3) the commencement of detention, 196(1) combination of duration of detention and terminus and, relevantly, it is 198(2), is it not, that would be the other provision to which we would have to have regard in the consideration of the detention issue?

MS MORTIMER:   Yes, your Honour, and that is the one to which I was coming, yes.

HAYNE J:   If you perhaps deal with it before I – but can I just say, the question to which attention may need to be directed is, when you put together 189(3) plus 196(1) plus 198(2), where is there, if you like, statutory room for what is happening with the RSA process?  You take such course as seems best.

MS MORTIMER:   Yes, your Honour, I am quite content to answer that directly.  The statutory room, your Honour, in relation to detention and holding in detention is because this process must be about determining whether someone can apply for a visa, and that is the Al‑Kateb point.  So that is the only room, other than a very brief initial period of detention, to ascertain who this person is and where to send them.  You are keeping them there, like this plaintiff, for six months.  You must be doing it for the purpose of deciding whether they are eligible for a visa.

HAYNE J:   That is a description of the content of the room, where in the statute it finds it root.  You say it is found in 46A or the other, 195A?

MS MORTIMER:   Yes, your Honour, that is, one must read the detention power together with the only provisions in the Act that are capable of operating in respect of offshore entry persons to let them into the visa scheme, and similarly with section 198(2), in our submission.  May I just start by identifying which part of section 198(2) we submit operates in relation to this plaintiff because that is perhaps the first necessary condition.  This plaintiff is, in our submission, a person under section 198(2)(a) who is covered by section 193(1)(c). 

If your Honours turn to that, your Honours will see section 193(1)(c) is a person who has been “detained”, relevantly, “under subsection 189(3)”.  That is how the plaintiff gets within the first of the three criteria in section 198(2).  He has not been immigration cleared.  Indeed, the documents reveal he is characterised as bypassing immigration clearance.  Those detention documents that I took your Honours to indicate that.  Paragraph (c), he “has not made a valid application for of substantive visa” because he is prohibited by section 46A(1) from doing so and, naturally enough, he therefore has not made a valid application that has been finally determined.

So prima facie that would suggest that those officers responsible for his detention are under a statutory obligation to remove him and have been under that obligation since he was first detained.  The only statutory concept that provides a qualification on that duty is the concept of “as soon as reasonably practicable”.

In order to give the RSA process, in our submission, an operation which is harmonious with the removal obligation one must see it as directed towards deciding whether a person can get a visa or not because if it is not directed towards that then the notion of “reasonably practicable” cannot operate in relation to this kind of person.

FRENCH CJ:   You may not need “reasonably practicable” for this, may you?  It may just be implicit in subsection (2)(c):

(i)has not made a valid application –

There has to be some point at which that, as it were, crystallises which allows for the opportunity for somebody to make a valid application.  Now, for a person who is not an offshore person there is presumably some basic opportunity to make a valid application for the offshore person.  The question whether they make a valid application depends upon whether the Minister embarks upon the consideration under 46A and lifts the bar.

MS MORTIMER:   Yes, your Honour, and I accept that.

FRENCH CJ:   It is really an alternative ‑ ‑ ‑

MS MORTIMER:   A combination of those two approaches, your Honour, is to read “as soon as reasonably practicable” in the context of the notion in (c) about “has not made a valid application”.  That is consistent, in our submission, with the terms of section 198(3), which provides that:

The fact that an unlawful non‑citizen is eligible to apply for a substantive visa . . . but has not done so does not prevent the –

removal duty arising.  Now, what that means, in our submission, or how that is significant is two ways.  Firstly, it cannot apply directly to offshore entry people because, in fact, they are not eligible to apply for a visa.  Secondly, it contemplates some positive failure on the part of the person not to apply, some conscious decision not to apply. 

All it is really doing, in our submission, is saying that a person cannot stick their hand up and say, “Well I might be eligible for something.  I have not applied for it, but I might be” and that impedes your duty to remove.  But 46A people – offshore entry people – do not fit within subsection (3) because they are not eligible to apply.  That does mean, as your Honour Justice French observed, in our submission, that the way that section 198(2) must be construed is that there needs to be some kind of opportunity that the scheme contemplates will be available to a person before the removal obligation is triggered.                    Now, that again fits, in our submission, with what we submit is the scheme of the Act to ensure that Australia does not breach its Article 33 obligations.

KIEFEL J:   In that respect is there a tension between the statutory obligation placed upon an officer to remove under section 198(2) and the non‑return international obligations to which you have referred?

MS MORTIMER:   Only, your Honour, if section198(2) is not construed, taking into account the position of offshore entry persons under the Act and taking into account the need to ensure that the question of whether protection obligations are owed to them is assessed, at least once.

KIEFEL J:   Well, if there is a tension it is addressed by the Minister undertaking the considerations you have referred to.  Is that how you put it?

MS MORTIMER:   That tension is resolved in that way, yes, your Honour, but we would also submit that this kind of explanation of the way that the duty in section 198 should be construed is the only way to reconcile the timing of the performance of the duty with the operation of section 46A.  Otherwise, if one was to read 46A as a simple prohibition - you are an offshore entry person, you are not able to apply for a visa, then 198(2) the duty in that would operate immediately on that person.  The outcome of that – to pick up the Commonwealth’s favourite phrase in this proceeding – the practical effect of that could well be a breach of Australia’s non‑refoulement obligations because you have not inquired.

BELL J:   How do you deal with the first and second defendant’s submissions at paragraph 36 concerning the scope of the Article 33 obligation?  The point being made, it is broader than resettlement in Australia.

MS MORTIMER:   Of course, your Honour, and, your Honour, I am happy to deal with that now.  That requires me to go the scheme in section 46A and section 198A and we submit that ‑ ‑ ‑

BELL J:   Is it convenient to do it now?

MS MORTIMER:   It is absolutely convenient, your Honour, because I have really finished what I needed to say about detention and removal.  We accept that the scheme in those provisions accommodates what is colloquially called the Pacific solution and that is what the Commonwealth is talking about in paragraph 36, but that scheme still was designed to respect and honour Australia’s protection obligations.  May I take your Honours to how we say that is so and start with section 46A itself.  Section 46A(1) contains the prohibition which is triggered by two circumstances existing; that the person is in Australia and, secondly, that the person has the status of an unlawful non‑citizen, that is, they are non‑citizen without a valid visa.

FRENCH CJ:   Well, it is not a prohibition, is it?  It is really an excision from the class of – well, it is a disqualification in a sense.

MS MORTIMER:   It is a disqualification, your Honour.  Yes, I accept that.  What then, in our submission, occurs is one of two things in relation to those people not on the scheme; that they are removed under section 198(2) but, rather, as the scheme was conceived, that section 198A would be applied to them, and if I can ask your Honours to go to that.  Its situation in the scheme, right next to the principal removal obligation, is significant, in our submission, and the different language it uses is also significant.  Section 198A does not talk about removal.  That is not the language of this provision.  It talks about taking only one category of person, an offshore entry person, that is, the very person to whom the disqualification in section 46A applies taking them to a declared country. 

Now, what we submit is most significant for our argument about section 198A is subsection (3).  The qualifications for a country to be declared, in summary, are that there will be provided in that country to an offshore entry person an assessment of whether protection obligations are owed to them and if owed, protection of them.  That is a fulfilment of non‑refoulement.  So that section 198A was conceived as an alternative way for Australia to respect and implement its non‑refoulement obligations in relation to offshore entry persons by taking those persons outside Australia and having their protection obligations assessed somewhere else.

GUMMOW J:   Has this situation arisen with other countries that are parties to the treaty, the Refugee Convention, do you know?

MS MORTIMER:   Your Honour, I understand it has been contemplated in Europe but not implemented.

GUMMOW J:   That is what I was wondering.

FRENCH CJ:   Some countries, I think.

MS MORTIMER:   My understanding is that that occurred after the Pacific – following Australia’s development of this.

FRENCH CJ:   I thought that even before that there were some countries that were applying a safe third country policy, but perhaps that was to reject ‑ ‑ ‑

MS MORTIMER:   Your Honour, certainly in the Act that is also part of the substantive law in that sense in terms of where there may be no need to consider an application or an application may be dealt with differently if a person has access to a safe third country.  To answer your Honour Justice Gummow’s question, there were some processes in the United States ‑ ‑ ‑

GUMMOW J:   This is exercising physical force on people.  Section 198A condones an assault, I would have thought.

MS MORTIMER:   My understanding, your Honour, is that the Act authorises the continuation of detention.

GUMMOW J:   Yes.  It is just the same remarks.  Subsection (2)(b) certainly does.

MS MORTIMER:   Yes.

GUMMOW J:   What is the defence to an action against the Commonwealth for assault?  This section, I suppose.

MS MORTIMER:   Yes, your Honour, statutory authority again exercised for a purpose.

GUMMOW J:   So the question is does the statutory authority implement or not implement the treaty obligation?  I do not know the answer to that.

MS MORTIMER:   We would submit that the intent of the criteria in subsection (3) is to ensure that that occurs, that is it is not a power that is conferred simply for the purpose of taking people whose presence in Australia is seen to be inconvenient somewhere else and dumping them there.  It is purposive.  When one asks what is the purpose, the purpose is to ensure that Australia does not breach its non-refoulement obligations.  There will not be a breach if these people are taken to a safe third country where their claims will be assessed properly and if they are found to be refugees they will be protected.  That is all consistent with Australia’s protection obligations.

GUMMOW J:   That is the view that is taken by the legislature.

MS MORTIMER:   It is the view that is taken by the scheme.  Yes, your Honour, that is so.  That is sufficient for the purposes of our argument in this case.  We are content with that being the character of the scheme.  The disqualification in section 46A(1) is there to enable the facility in section 198A to work.  So you disqualify someone from applying for a visa onshore and as part of the same scheme you confer powers, including coercive powers, to take them somewhere else to have them assessed.  But it does not exhaust the purpose of section 46A because, if it did, one would not need subsection (2).

In reality, this is a scheme, when it was implemented, that contemplated assessment of protection obligations, in our submission, in two ways, either by taking the people offshore and assessing them offshore, or through subsection (2) by assessing them onshore. Now, there is no indication of any legislative priority to either of those choices, and rightly so, and in our submission, as historical events have borne out it is a policy choice, and what we have seen since 2007 is the demise at a policy level of the Pacific Solution so that section 198A lies dormant. The mechanism for respecting Australia’s protection obligations is the alternative mechanism for which the Act provides, and that is onshore assessment through section 46A(2).

Now, that is a long answer to your Honour Justice Bell’s question to me about our response to the Commonwealth submissions, but our response is that we do not engage in any mischaracterisation. We submit that they are true alternatives within the legislative scheme designed to give the Commonwealth a policy choice about how it will respect Australia’s protection obligations, and that policy choice has in fact changed, and in fact section 46A(2) now does all the work of respecting Australia’s protection obligations for people who are classified as offshore entry persons.

It is doing all that work because the Minister has decided, in our submission, that he will consider people who have been determined to be refugees in that process because they are the people to whom Australia owes protection obligations, and the only way that those obligations can be implemented if those people are onshore is by giving them a visa.  That is why the determination under this process provides, we would say, automatic entry into the visa scheme if it is favourable and almost automatic grant of a visa.

Now, I put that highly, almost automatic grant of a visa, but we submit that that is what the evidence before the Court demonstrates.  It is not that there is an initial filter and then the entire section 65 consideration process is engaged upon again.  No, no, in our submission, that does not happen.  That is the best evidence to support our proposition that the Minister has really embarked on the section 46A process.  There is nothing preliminary about this.

FRENCH CJ:   Does the adoption of the RSA and IMR scheme amount to or reflect a policy decision or a ministerial policy about what is or is capable of constituting in the public interest for the purposes of 46A(2)?  I am just wondering how it engages with the language of the section because you really cannot just have them in a cloud together.

MS MORTIMER:   No, you cannot, your Honour, and our submission is that the concept of the public interest in section 46A includes, as a mandatory consideration, whether Australia owes protection obligations because when you look at the scheme - it may include other matters as well, we do not cavil with that proposition, but when you look at the way the scheme was designed and implemented, the parallel with section 198A, the application of it to offshore entry persons and what was known about those persons, that is, they are coming by boat claiming to be refugees.  That was the characteristic that these people had.

FRENCH CJ:   The Minister says that the existence of protection obligations as assessed under the RSA - let us suppose, taking your submission at its highest, the Minister says “I accept that the determination of the existence of protection obligations under the RSA is, or would be, a relevant and central” - perhaps mandatory may be a word we have difficulty with – “in determining whether it is in the public interest that I should issue a 46A(2) notice”.  He has gone that far in terms of a policy, but has he actually taken any step under the section itself?

MS MORTIMER:   We submit he has, your Honour, because he has devolved the substantive determination of whether Australia owes protection obligations to firstly, his officers and, secondly, to somebody to review the substantive determination of his officers.  He does not otherwise look at the substantive qualification of that person as a refugee again.  It is a simple ‑ ‑ ‑

FRENCH CJ:   You can see a public interest criterion which might say, all right, people to whom we owe protection obligations, plus we do not want to exceed a certain annual intake from that category of person, that is offshore persons, plus perhaps a raft of other criteria, priority to particular countries and so forth.  There are some refugees who are worse off than others.

MS MORTIMER:   There may be, your Honour.  There may be people ‑ ‑ ‑

FRENCH CJ:   All of those things could inform a decision under 46A(2).  That is why I wonder whether ‑ ‑ ‑

MS MORTIMER:   We – I am sorry, your Honour.

FRENCH CJ:   Go on, yes.

MS MORTIMER:   We accept that, but we say the one thing that is relevant in that sense is the owing of protection obligations.  You cannot ignore that.  It is an integral component of the process.  If it is not you risk refouling people in breach of Article 33 if you do not ensure that that assessment is undertaken or if you ignore it and you do not, for yourself, undertake it again.  So in either of those - and the Commonwealth appears to say you can ignore an RSA determination, you can pay no regard to it, it does not have to be constrained by any Australian law, they could decide it on the basis of a complete misreading of Article 1A, it does not matter - if any of those propositions are right, then that involves a breach of Australia’s international obligations and that is construction of the legislation, in our submission, that should not be adopted if there is an alternative construction available.

CRENNAN J:   Well, it also might run into problems in relation to the lawfulness of the detention.

MS MORTIMER:   Yes, your Honour.

HAYNE J:   Well, is there a middle ground in that submission?  I am not sure whether there is or is not, but there is the continued assertion of coercive power over the individual.  That continued assertion of coercive power must find accommodation with 198(2).  Relevantly, you say the accommodation includes taking steps, at least steps preliminary to the engagement of 46A.  You say it accommodates taking steps under 46A and that is your chief submission, I think?

MS MORTIMER:   Yes, your Honour.

HAYNE J:   Is there the middle ground though of taking steps preliminary to examination of the engagement of 46A?

MS MORTIMER:   Yes, there is, your Honour, and we do put that argument.  We have put it in our written submissions as our second argument, that if properly characterised, one cannot say the Minister has actually embarked on consideration when you look at the evidence, then what he has done is to establish an assessment and determination process once off – well, once off with review – but a once‑off self‑contained process to inform him about whether he will consider exercising the power.

HAYNE J:   But you say in this middle ground, recognising that it is characterised as assertion of coercive power pending the taking of steps preliminary to 46A(2), you say that those preliminary steps must themselves (a) be attended by procedural fairness, (b) must address the right legal question which is posed as the requisite or perhaps as the relevant preliminary step undertaken?  Is that the way it is put?

MS MORTIMER:   Yes, your Honour, we do.  If it is a preliminary step, it is an essential preliminary step because it is the only occasion for that assessment to occur, that assessment of whether the person is a refugee or not.  It is determinative of that in a recommendatory way in the same way we would say the situation in Hot Holdings obtains.

HAYNE J:   But you buttress the need for accommodation by saying that the Act speaks so much about protection obligations?  Section 198A contemplates preservation of protection obligation, albeit in a context where someone has been removed from Australia.

MS MORTIMER:   Yes, your Honour.  Physically taken from Australia, yes, but still under some kind of control, it being assumed that Australia is ensuring its protection obligations will be respected.

FRENCH CJ:   Well, they can also be brought back, 198B, because the transitory person includes an offshore person who has been removed from the 198A.  The control reaches ‑ ‑ ‑

HAYNE J:   But a 198A person is someone who is removed from Australia, I think.

FRENCH CJ:   A transitory person is brought back from another country.

HAYNE J:   Yes.

MS MORTIMER:   Yes, and I think the Chief Justice is right, that transitory person covers a number of categories.

FRENCH CJ:   Well, they might be brought back to give evidence, for example, in the prosecution of a people smuggler.  I think I remember that happening a few years ago in Western Australia.

MS MORTIMER:   Yes, your Honour, or medical treatment I think is another practical example of where they may need to be brought back to Australia.

GUMMOW J:   If you are right about that, and the engagement of 46A(2) in the way you have been putting it to us in response to Justice Hayne’s question, if you are right about that, subsection (7) is presently beside the point, is it not?

MS MORTIMER:   On our argument, yes, your Honour.

GUMMOW J:   Because the Minister has launched on this himself.

MS MORTIMER:   Entirely, your Honour.

GUMMOW J:   Wisely, from the Minister’s point, because he has to decide whether it is in the public interest and the public interest includes the Refugee Convention.  He has to have something to assist his thinking.  That is the view taken, so he has set up the RSA.

MS MORTIMER:   That is it in a nutshell, your Honour, that is our argument.

GUMMOW J:   Does that then produce on the part of the RSA a privative clause decision?

HAYNE J:   Answer in not more than three hours, writing your name at the head of each sheet, Ms Mortimer.

GUMMOW J:   Looking at 474(2) or section 5A, which is a – 5E rather, is it not?  Yes, a purported privative clause decision.

MS MORTIMER:   I am going to ask for some particulars before I respond, if I may, your Honour.

GUMMOW J:   Because at the end of the day you want mandamus, that is what I am trying to get to, from this Court and an injunction in the meantime if necessary.

MS MORTIMER:   We do, your Honour.

GUMMOW J:   The mandamus would be to decide it according to law and the question is, what is the law?

MS MORTIMER:   Mandamus directed to the Minister, your Honour, yes.

GUMMOW J:   Yes.  What is the law?  According to law, what law?

MS MORTIMER:   Well, we would submit the common law rules of procedural fairness and the legal constraints on the Minister’s authority to decide whether it is in the public interest to lift the bar.  Those legal constraints, as I have developed, require consideration of the terms of Article 1A so that the law about the meaning and application of Article 1A must be correctly applied.  So the substantive law about that.

FRENCH CJ:   So the Minister having, as it were, on your argument, moved out of the range of the protection of subsection (7) has embarked upon or committed himself to a process of “consideration” which is to be informed by common law requirements of procedural fairness affecting the prior assessment?

MS MORTIMER:   Yes, your Honour.

FRENCH CJ:   That feeds into that consideration.

MS MORTIMER:   That is so.

FRENCH CJ:   And, of course, also that would be a correct assessment according to law.

MS MORTIMER:   Yes, your Honour.  The determination that informs his consideration of the public interest must be a determination that accurately applies the Australian law about Article 1A because he is exercising a discretion under an Australian Act about Australia’s protection obligations and the meaning of Article 1A in the context of this Act as a component of the public interest.  So Australian law about the meaning and application of Article 1A is an essential constraint, we would submit, on the determination.

GUMMOW J:   Yes, and in that limited sense he has embarked on a matter arising under the treaty, and that is justiciable.  It has to be so.

MS MORTIMER:   Yes, your Honour, that is so, if we needed to go there.  On our argument, we have 75(iii) and 75(v), but that would be right, your Honour, in our submission.

GUMMOW J:   I think it is said in some manual or other that these delegates or contractors or whoever they are do not need to be regulated by decisions of this Court, which is a rather remarkable state of affairs.

MS MORTIMER:   It, indeed, does say that, your Honour.  The decisions assert that, as well, and it is probably apposite – I note the time and my self‑imposed constraints this morning.  I would need to take your Honours through some of those documents to make good what we contend is the nature of the process and what those documents disclose about the nature of the process.  If I might do that by starting with the foundation document that provides information.

It appears before the commencement of the RSA process, and this is what is called the entry interview.  Your Honours will find this in volume 1 of the application book at page 66.  This is, we accept, a process to which all, as the document calls them, unauthorised arrivals, are subjected, not simply offshore entry persons.

FRENCH CJ:   This is a statutory process because it threatens people with penalties for false information.

MS MORTIMER: Your Honour, I was going to draw your Honour’s attention to some of those because they are significant. This document makes a number of assertions which we submit are relevant. In the second paragraph in that boxed part, there is an assertion that the Department is authorised to collect this information under Part 2 of the Migration Act. When one turns to Part 2 it is not actually so easy, in our submission, to pin down what the authorisations might be.

Part 2 is a large component of this Act but so far as we can tell one could go to a provision such as section 18. That does not apply because that is a coercive power to obtain information from person A about person B. Conceivably it might have some application, I suppose, to an inquiry about a people smuggler, but it is not going to principally authorise the extraction of information from this plaintiff. One can see a power such as section 170. That is a requirement on certain persons to provide evidence of identity, so fairly limited, in terms of its subject matter, what can be coerced from that, or the obligation imposed from that.

One could see a provision such as section 257, again, a purposive power for determining the status of a person, according to subsection (1), and there are then from section 261 onwards a number of powers again directed towards ascertaining a person’s identity.  But there does not appear to us, so far as we can find, to be any general conferral of authorisation to obtain information.

There is section 56, but section 56 is all about obtaining information for visas.  Now, that might explain the next sentence in that paragraph because the next sentence says:

The information provided will be used for assessing your eligibility for a visa and for other purposes relating to the administration of the Migration Act.

So clearly ascertaining identity in matters like that and matters relating to the administration of the Migration Act, but on its face, the entry interview is said to be being used for the purposes of assessing a person’s eligibility for a visa and it does, as your Honour the Chief Justice pointed out, then remind the person about the very significant penalties for the provision of false information.  The reference to a penalty of imprisonment for 10 years, we understand to be a reference to section 234 of the Act.

When one looks at the content of the entry interview on the following pages, in our submission, it clearly has a lot of details about identity, nationality, family, mode of arrival in Australia but then if one goes, if the Court pleases, to page 76 of the application book, the Court will see that at this entry interview expressly again the initial opportunity is provided to see whether Australia’s protection obligations are engaged.

FRENCH CJ:   Is there a document anywhere here which constitutes a request for assessment of refugee status?

MS MORTIMER:   There is, your Honour, but that comes later.  It comes chronologically after this process.

FRENCH CJ:   I see.

MS MORTIMER:   Your Honour will find it – in terms of the RSA process?

FRENCH CJ:   Yes.

MS MORTIMER:   Your Honour will find it in the supplementary application book at page 25.  In relation to this plaintiff, your Honour, that is the document that was dated 14 November 2009.  So it comes a few weeks after this entry interview.  The entry interview itself provides for the making of invoking of Australia’s protection obligations and that is given considerable statutory significance for the exercise of a number of other powers, notably the cancellation powers.  So in terms of the application of the statutory powers to a person like the plaintiff, if he ever gets to a visa, the cancellation powers can operate on what the plaintiff says at this entry interview.

Let me explain to your Honours how that occurs.  If your Honours turn to section 109 and section 113.  Section 109 will suffice if the Court pleases.  There is a power given to the Minister to cancel a visa if information provided was incorrect.  An extended definition of when information is provided is given by section 99 of the Act.  Section 99 provides that:

Any information that a non-citizen gives or provides, causes to be given or provided . . . to the Minister, an officer, an authorised system or a person or Tribunal –

is deemed for the purposes of some of the cancellation provisions to be an answer to a question in a visa application.  So what section 99 does is extend the notion of when you are answering a question in a visa application right back to something like the provision of information at an entry interview.  So what that means in practice is that if this plaintiff provided in this entry interview information which ultimately led to a positive RSA determination, the lifting of the bar, the granting of a protection visa and was subsequently found to be incorrect, could provide grounds for cancellation.  The reason I have spent a little time on that, if the Court pleases, is to show the inextricable links between these things that the Commonwealth assets happen outside the statutory process and the Act. 

So it is not just detention and removal, although those are critical examples.  The subsequent exercise of statutory powers to the disadvantage of the plaintiff if he successfully gets a visa is also sheeted back to these things that the Commonwealth say sit outside the statute. 

Now, after the entry interview is completed then we come to the commencement of the RSA process and as we understand the evidence so long as an offshore entry person such as the plaintiff makes a claim during that entry interview then that person is given access to the RSA process, again, consistently with the respect for Australia’s protection obligations and the need to assess them. 

So your Honours will see at page 25 of the supplementary application book the plaintiff’s application under the RSA process again setting out all his personal details.  There is nothing in particular that I need to take your Honours to about that.  His statement which accompanied that application is in the main application book - at page 177 of volume 1 of the application book.  So together with his application form the plaintiff then completed that statutory declaration explaining the reasons that he claimed to have a well‑founded fear of persecution for the purposes of Article 1A. 

Now, he was also interviewed by the fourth defendant, Mr Lew, who was the officer assigned to assess the plaintiff’s claims at first instance and if I can ask your Honours to go to page 92 of volume 1 of the application book your Honours will see Mr Lew’s decision.  At the bottom of page 92 your Honours will see that the plaintiff was interviewed by an immigration officer on 23 November 2009, so shortly after he made his application.  That is consistent with the procedures in the manual to which I will take your Honours shortly. 

While we are on this decision we do emphasise – I will just take your Honours to those parts of the this decision which we say reflect the determinative nature of it and the wrongful assertion that there is no aspect of Australian law that needs to be applied to it.  Your Honours will see on page 94 where it says “Material before the RSA officer” – item 4:

Relevant case law and legislative provisions in the Migration Act – as an aid to interpretation of the Refugees Convention.

That is where we submit there is a mischaracterisation of what is being undertaken in this and that the legislative provisions of the Migration Act, so far as they contain something like section 91R, are more than an aid, they govern the determination of whether Australia owes protection obligations to the person under Article 1A.  The language of the document on its last page, page 100 of the application book, in our submission, is unequivocally the language of determination.  This is the occasion for findings.  Your Honours will see that notion repeated throughout those paragraphs on page 100, “I find the claimant, I find the claimant”.

Then your Honours will also see the language of satisfaction introduced at item 6, “I am satisfied”. Now, that is a picking up, of course, of the language of section 65 of the Migration Act, not insignificant and, in our submission, telling because this is the determination that eventually, we submit, will constitute the satisfaction for the purposes of section 65. The final paragraph talks about entitlement to a review of the finding and that in itself, in our submission, recognises the determinative nature of it, that is, it is a finding against you and you are entitled to have it reviewed because it affects you. Unless this process recognised the negative effect, there would be no occasion to provide a review.

The letter which accompanies this your Honours will find on pages 90 and 91 of the application book and the part which I wish to emphasise is the part down the bottom which again demonstrates when it suits the Commonwealth but also to ensure that what is happening is lawful, that there is a complete and inextricable link with the exercise of powers under the Act:

We are collecting your personal information for the purposes of making decisions under the Migration Act 1958 and the Migration Regulations 1994.

Just like the purpose of detention powers, we submit that must be right.  The purpose of powers to collect information are all about being able to assess a person’s eligibility for a visa, and this document recognises that.  Now, after that unfavourable review, the plaintiff then did apply for independent merits review.  If I can take your Honours to the decision made by the independent merits reviewer – your Honours will find that in volume 1 of the application book at page 112 – again just highlighting some of the aspects not for the purpose of advancing arguments yet about grounds but the aspects of the decision.  This may have been the paragraph to which your Honour Justice Gummow was referring, paragraph 2 on page 112.

GUMMOW J:   Yes.

MS MORTIMER:   Now, clearly the reviewer cannot mean that as an absolute statement because the other documents suggest that parts of Australian law at least are recognised as applicable, the Privacy Act, for example, is recognised as applicable, but what it appears to suggest is that there is no universe of constraint, there is no law in that sense which constrains how this reviewer is to approach the application of Article 1A of the Convention.  It does not suggest another source.  It just says, “I am not bound by Australian law.  I am not going to look at Australian legislation.  I can look at relevant case law”, and, indeed, he does, but he purports to say that his universe, in terms of the substantive nature of the decision, is unconstrained.  This decision record, in our submission, is materially indistinguishable from a decision record of the parallel statutory Tribunal, the Refugee Review Tribunal.

HAYNE J:   It is cast in terms of the recommendation to the Minister, see page 112, line 12.

MS MORTIMER: It is, your Honour. Right at the end of the document it is cast in that. The rest of the document, the substantive part of it, is expressed in terms of findings and again picks up the language of section 65 in terms of satisfaction, for example, in paragraph 53 on page 134.

FRENCH CJ:   To whom is the recommendation directed?  Is that covered in the manual?

MS MORTIMER:   It is, your Honour, and that is where I propose to go next; to each of the manuals for the first instance and the second instance decision.  Although there is a heading “Recommendation”, that is preceded by a finding that the plaintiff does not meet the definition.  So, in our submission, again what this demonstrates is this is the substantive consideration.  It may be, as we do put one of the arguments if are right about what this process is, that the Minister could himself reach a different conclusion, but what the subsequent documents demonstrate, particularly the documents that your Honours have in this court book, about a real life application of section 46A is that they demonstrate that a substantive finding at first or second instance translates automatically into a protection visa, and I will come to that in a moment.

Can I take your Honours to each of the manuals.  There are in the materials before the Court two versions of each manual, each promulgated at a slightly different time and we note from the Commonwealth’s submissions that the Commonwealth suggests that in relation to the assessment at first instance, the appropriate manual is exhibit AM‑7, which your Honours will find in volume 2 of the application book at page C120.  So this is the version at September 2009 bearing in mind, if the Court pleases, that the plaintiff entered the process shortly thereafter in October 2009, November 2009 and was assessed through the early part of 2010.

So we accept that this is the appropriate version of the two to look at.  In relation to the review guidelines if I just might indicate that now the Commonwealth identifies exhibit AM‑8 at page 201 of the same application book as the relevant one.  That is notwithstanding that according to the dates the second version of this was promulgated in March 2010, which is very shortly before the IMR decision on behalf of the plaintiff.  But we accept that it is more likely that the first version of this was the one that was used and applied so we do not have any difficulty with the Commonwealth’s position that those are the two versions of the manual that the Court should look at.

Now, if I can take your Honours to exhibit AM‑7 and the assessment at first instance and to page C125 of that.  Your Honours will see about halfway down that a statement about the purpose of the process being:

so that the Minister for Immigration and Citizenship (the Minister) can be advised whether Australia’s protection obligations under the Refugees Convention are engaged.

So that is consistent with our characterisation of the process and the next sentence asserts that:

Consideration of the exercise of the Minister’s power under s46A to allow a visa application to be made will occur following assessment of protection obligations as outlined in this manual.

In our submission that indicates that this is part of that process.  There then is a reference under 1.3 to the non‑statutory nature of the process according to the manual and what does not apply.  The Migration Act although as your Honours have seen substantial parts of the Migration Act do appear to apply and including some of the coercive information in extracting parts and Australian case law does not apply, decisions of this Court said not to apply, but they are policies that as a matter of policy officers could be guided by decisions of this Court.

We have yet to hear from the Commonwealth, in our submission, if it is not decisions of this Court about Article 1A that govern an officer of the Commonwealth in making this determination, what it is because in the Commonwealth submissions to date we have had negative submissions about what is not, but not yet anything about what is the law that is said to govern.  Your Honours will see then on page 128 a flow chart ‑ ‑ ‑

CRENNAN J:   Just before you leave the page you are on, there is a reference to procedural fairness and also that the RSA procedures are closely modelled on the onshore protection visa determinations.

MS MORTIMER:   Yes, your Honour, there is.  That is the first of many.  It is important, your Honour.  I should have picked that up.  That is a consistent theme in these manuals, both the recognition of the obligations of procedural fairness and the recognition of the parallels between the visa process and this process. 

Your Honours will see on page 128 a flow chart.  There are a couple of versions of flow charts, some of which suggest there is only one road open once there is a positive determination and some of which suggest that the Minister may still decline to exercise the power either under section 195A or under section 46A.  May I just draw your Honours’ attention on this flow chart to the parallel paths of 195A and 46A for this purpose because 195A, which I have not spent a lot of time on yet, involves the actual grant of a visa.  So it is not the lifting of a preliminary obstacle to an application and then consideration of it.  It is the actual grant of a visa.

So if one is examining what the effect of a determination under this process might be on a person like the plaintiff, the availability of an immediate grant of the visa is a much closer and more advantageous outcome than 46A.  So it is much more than a practical effect in that sense.  It is a legal effect.  It is a decision that can change his status.  What does the Minister look at?  The Minister looks at a determination under this process and is then able, on the basis of that determination, to change a person’s status under 195A from unlawful to lawful.  Now, that is not the kind of effect which is a sufficient interest for certiorari.  In our submission, one would have to depart from the approach taken in Kioa.

FRENCH CJ:   There is no provision for – this comes back to the question I asked you before about to whom is the recommendation directed – reflecting a finding that a person does not have refugee status because the only things that feed in to the Minister on the flow chart are positive outcomes.

MS MORTIMER:   Yes, your Honour.

CRENNAN J:   In fact, if there is a negative outcome and no request for an independent merits review you finish up with removal which would suggest, although it is not relevant to your facts, that this procedure would directly underpin an exercise of power under section 198 of the Act.

MS MORTIMER:   Yes, your Honour, it would, and we would submit consistently with our construction of section 198 because there has been an assessment.  There has been an assessment; it has been a negative assessment ‑ ‑ ‑

CRENNAN J:   That is what I am saying, it is an assessment, it is a determination and it underpins an exercise of statutory power to remove.

MS MORTIMER:   Yes, your Honour, we submit it does.

HAYNE J:   That is consistent with what appears at 109 of volume 1 of the application book where, at the end of the processes, the letter is sent to the plaintiff.  At line 20, “The Department will no start making arrangements for your return”, et cetera.  So that we begin the process of removal only at the point of the letter found at 109.  Until then, this person has been detained and removal has not begun.

MS MORTIMER:   Yes, your Honour, and that, we submit, is consistent with the construction we have given to 198(2).  May I take your Honours, simply by way of example of some other features of the scheme, to page C130 of the application book to two statements on that page, firstly, under the heading “The RSA Team”, the second paragraph, that “The RSA officer is DIAC employee”.  Your Honours will have seen in the material the references to the engagement under section 22 of the Public Service Act and the material that suggests there was a call for applications from persons who already were employed in the Department to be seconded to do these particular assessments, but again there is a strong parallel with the kinds of functions that these employees are performing under the Act. 

The process is designed to ensure that the people who are doing these assessments are experienced in doing these assessments, they are doing them as delegates under the Act, they are going to be carrying them out in the same kind of way, in our submission.

HAYNE J:   What content, if any, does the document give to the expression “The RSA officer is a DIAC employee delegated by the Minister”?  Is that amplified or explained elsewhere in the papers?

MS MORTIMER:   No, your Honour, it is not and, as we understand it, there is no evidence of any formal delegation, certainly not under the Migration Act.  There appears to be evidence of appointment under section 22 of the Public Service Act.  So that may be a term used loosely, we would expect, your Honour, here.  On this same page down the bottom your Honours will see the assistance that is given to people in this scheme is the same publicly funded assistance.  Public moneys are appropriated and expended on these people through the IAAAS scheme, the same scheme that is available to protection visa applicants and the same people, that is, people who are migration agents, under the Act.  Again, those people who are experienced, qualified, regulated by the Act are the people who are chosen by the Commonwealth to be given money to fund the preparation and assistance of these applications.

CRENNAN J:   Just before we leave this page, at the midpoint of the page, bullet point six of “The RSA’s officer’s responsibilities” are again a reference to “ensuring cases are assessed in accordance with natural justice”, and then bullet point eight explicitly refers to the requirement that the RSA – imposing responsibility on the RSA officer to make “findings as to whether the claimant is a refugee”.

MS MORTIMER:   Yes, your Honour, that is right, and we submit that is precisely what happens, again because this is the only occasion on which that fact finding and application of some law to the facts is undertaken in relation to these people.  Now, if I may take your Honours to, in similar language, page C134, the last full paragraph.  The description there of what the RSA officer is to do is that:

the RSA officer is required to make a determination as to whether the claims may engage Australia’s protection obligation within the terms of the Refugees Convention.

There are then pages and pages of directions given to RSA officers about the manner in which they are to interview people, the important role of interpreters, recording particular classifications of applicants, such as unaccompanied minors – that is dealt with on page 140 of the application book – and then how those claims in particular are to be assessed.  We then come, at page C145, to the sources of information that are available to decision‑makers under the scheme and your Honours will see at item 24.1 of this document that these officers have access to “departmental databases, such as ICSE, CISnet, Safeguard and MR” and these are all sources of information collected under the authority of the Migration Act to which these officers have access. 

There is then set out the other sources of information on the next page to which the decision‑makers are to have regard; information from the claimant, information from the department, again presumably acquired under the authority of the Act, country information – and I will come to how these decision‑makers get access to that in a moment – and then some guidance about how that information should be used.  There are then a series of procedures that talk about again the kinds of processes that are required before a visa is granted, “Prior protection and nationality checks” and how those checks are to be carried out. 

Then on page C148 there is a heading “The Country Research Section” and again the principal resource to be employed is a departmental resource.  Your Honours will see that in the last sentence of that first paragraph 26.1, “A key tool for this critical exercise” in examining country information “is the range of services provided by DIAC’s Country Research Section”, again the principal function of this being one that feeds into decision‑makers in the Act and feeding into both departmental officers and the Refugee Review Tribunal. 

One does find on occasion, in our submission, slippage in this manual into the language of the Act, unconscious but telling, about what the process is really all about.  An example of that is on page C151.  This is a part of the manual that is dealing with procedural fairness and talks in great detail about the common law rules of natural justice or procedural fairness and what they require and recognises that they are applying to this process.

In the second paragraph the manual purports to qualify the obligations by reference to a statutory concept of non‑disclosable information. Your Honours will be perhaps familiar with that from section 424A. But it is otherwise demonstrating that really this is a process that is going on, we submit, within the confines of the Act and the statutory concepts are being superimposed on to it.

HEYDON J:   Where is non‑disclosable information discussed in this document? 

MS MORTIMER:   It is not otherwise discussed, your Honour.

HEYDON J:   I see.  That is the only reference?

MS MORTIMER:   There may be more than one reference, but it is not defined, your Honour, and we submit that it is simply – perhaps unconsciously, but deliberately picking up a statutory term in the Migration Act that is used to qualify the procedural fairness obligations that are imposed by statute.

HEYDON J:   The common law rules of natural justice know nothing of non‑disclosable information.

MS MORTIMER:   Precisely, your Honour, so we are not suggesting it is a valid qualification.  We are simply highlighting that this document, even in its terms, is picking up statutory concepts like that.

CRENNAN J:   Do you make a point of that sort in relation to bullet point 5 referring to adverse information?

MS MORTIMER:   Your Honour, that may be a paraphrase of the common law obligations of procedural fairness, in our submission.  Our principal contention in this case is that the common law obligations of procedural fairness that apply to this process are the Kioa kinds of obligations, information that is credible, relevant and significant and adverse.  So that is picking up that kind of language, perhaps, in a shorthand way, we would think, your Honour, rather than picking up a statutory concept. 

Now, if one goes over a few more pages there is then on page C154 some advice given or directions given about how the record is to be prepared and at point 30 on the page that it has got to:

be logical, rational, and set out the reasons for the assessment -

Although the document states it must be that on the Commonwealth’s argument it is not enforceable in that way and if the final assessment is illogical, irrational, does not set out any reasons and completely misapplies the law that does not matter. 

There is express reference, for example, at C155 halfway down the page and also over the page to the need to assess the claims that are put forward by an applicant and we say that again that is an orthodox understanding of the application of Article 1A that one must assess all the Convention claims that are put forward by the applicant.  Of course, when we get to the grounds of the review in this case one of our principal grounds of review is that a key claim made by this plaintiff was not assessed by the independent reviewer.  Can I take your Honours to page C163, which is the part headed “Finalising Cases” ‑ ‑ ‑

FRENCH CJ:   Just before you go to that, 38.2 at C159 under the heading “Serious Harm” seems to replicate, I think, I have not checked them all, 91R(2) of the Act, is that right?

MS MORTIMER:   It does, your Honour, and this is one of the conundrums about this document, in our submission.  It purports to pick up those kinds of aspects of the substantive domestic law of Australia in relation to the application of Article 1A but then on the Commonwealth’s argument it does not matter if that is not how it is actually applied.  Page C163, your Honours will see a heading “Positive RSA Outcome” and a statement that:

When an OEP –

an offshore entry person, that is –

is found to be owed protection through the RSA process, and is not subject to exclusion clauses under Articles 1F and 33(2) of the Refugees Convention, Australia’s protection obligations under the Convention are enlivened.

A submission will be prepared by the Department to the Minister advising the Minister that –

The next sentence says, although it is a little hard to read with the word “Draft” across it –

This allows the OEP to lodge an application for a visa.  After the Minister lifts the bar, the OEP will be invited to lodge a Protection visa application (Form 866).  This application will be assessed –

Now, I will come to the evidence about ‑ ‑ ‑

CRENNAN J:   But the next sentence is important, I think.

MS MORTIMER:   Yes, your Honour, it is: 

If subsequent information comes to light which may impact on the assessment ‑ ‑ ‑

CRENNAN J:   No, I was referring to the fact:

This application will be assessed with reference to the claims made during the RSA process.

Yes, your Honour, but what it is allowing for is that there may be something else that comes to light.  What that reveals for the purposes of our argument is again the substantive determination is this one.  New information might come in that obviously may not be able to be ignored, but this is the operative determination.  Your Honours will see the next paragraph:

Subject to health and character requirements being met, a Protection visa will then be granted to the OEP and they will be resettled in Australia.

That is the purpose.  It is the summary of the operation of 46A.

FRENCH CJ:   So far as the negative review outcome is concerned, subject to the independent merits review that is the end of the road. 
Although there was, I think, a recommendation at the foot of the document that we saw earlier, the RSA record of decision, there is no one to receive that recommendation.

MS MORTIMER:   If it is negative, your Honour?

FRENCH CJ:   Yes, if it is negative.

MS MORTIMER:  That is so. 

FRENCH CJ:   The same is true of an IMR recommendation.

MS MORTIMER:  That is so.  It simply does not go anywhere.

FRENCH CJ:   Yes.

GUMMOW J:   Is the result of this that looking at Part 7, section 411(2)(a), the product is a non-RRT reviewable decision because it is made in relation to a non-citizen who is not physically present in the migration zone?  Is that how it works?  Is it that which shuts out the RRT from engagement?

MS MORTIMER:   Your Honour, I think not.  My understanding is that Christmas Island is a part of the migration zone, so a person ‑ ‑ ‑

GUMMOW J:   What is it that shuts out the RRT?

MS MORTIMER: The absence of a decision under section 65 would be my global answer, your Honour, but I would have to track that through.

GUMMOW J:   I think it had better be tracked through.

MS MORTIMER:   Yes, your Honour.  If we turn it around the other way and look at section 411(1), that is what the positive jurisdiction is, we have the two pre‑1994 ones, but then the two operative ones are (c) and (d).

GUMMOW J:   Yes, and because of the way section 46A works there has not been a decision to refuse.

MS MORTIMER:   That is so, your Honour.

GUMMOW J:   That is the theory of it.

MS MORTIMER:   That is the theory, yes, your Honour.

GUMMOW J:   So that shuts out the RRT.  What then engages Part 8 or does not engage Part 8, the judicial review structure?

MS MORTIMER:   Your Honour, that will turn on whether this is a privative clause decision.  The operation of Part 8 will turn on that to some extent.

GUMMOW J:   But the assumption is that Part 8 is simply not engaged, is that right?

MS MORTIMER:   Your Honour, that is certainly the assumption of the Commonwealth’s argument.

GUMMOW J:   Yes, that is right.  I am trying to work out what the scheme of the Act is.

MS MORTIMER:   Because it is not made under the Act, we anticipate, to be the basis for that.

GUMMOW J:   There is lots of talk in vague terms about policy, but what is the policy that underlies this structure – of the RSA structure, I mean?

MS MORTIMER:   There is the policy to which I have referred about the assessment of protection obligations and respecting non‑refoulement obligations, but then in terms of seeking to preclude judicial review ‑ ‑ ‑

GUMMOW J:   Is it anything more than excluding Part 7 and Part 8 of the Act?

MS MORTIMER:   Well, your Honour, on the arguments of the Commonwealth ‑ ‑ ‑

GUMMOW J:   You say that is a bad thing, I understand that, but ‑ ‑ ‑

MS MORTIMER:   Yes.  On the arguments of the Commonwealth in this Court it is a lot more than that because they say it has no legal effect, it does not affect rights or interests, it is nothing, it is a simple conclusion that does not lead anywhere unless the Minister decides it leads somewhere, so there is nothing for this Court to review under its ‑ ‑ ‑

GUMMOW J:   So it does not engage Chapter III in any respect?

MS MORTIMER:   No.  That is how we understand it.

FRENCH CJ:   That is as though the UNHCR was doing it?

MS MORTIMER:   Yes, your Honour.

FRENCH CJ:   That is on the Commonwealth argument, as your ‑ ‑ ‑

MS MORTIMER:   As though the UNHCR was doing it for the UNHCR’s purposes, your Honour.

FRENCH CJ:   With the possibility that Australia will take notice of their findings?

MS MORTIMER:   Yes, your Honour, possibly.

FRENCH CJ:   That was happening on Nauru, was it not?

MS MORTIMER:   Your Honour, as we understand it and as we understand Mr Metcalfe’s evidence, what was occurring on Nauru, Manus Island and, to some extent, Christmas Island, was the 198A process, that is, the processing of people in a declared country with the attendant protections that 198A requires but, as we understand it, processing by officers of the Commonwealth, but, your Honour, there is no evidence about that before the Court.

GUMMOW J:   In the regard of the matters we have just been raising with you, what do you say about paragraph 58 of the Commonwealth’s submissions, in effect, that there are no rights or duties upon which these remedies could attach?

MS MORTIMER:   Yes, your Honour.  Well, we say a number of things.  The first is that clearly the plaintiff has a common law right to liberty which is presently being interfered with and can only lawfully be interfered with for a purpose under the Act.  He has a right to his liberty and he has an interest in it and the interest he has in it is staying in Australia and securing a visa to make him a lawful non‑citizen.

The Commonwealth posits, in our submission, that there must be an immediate and direct effect or an immediate legal right.  Now, that is not the approach that was taken by Justice Brennan in Kioa (1985) 159 CLR 550 at page 606. Of course, we accept this was in the context of procedural fairness but that is relevant, in our submission. In the middle paragraph at page 606 his Honour Justice Brennan goes through the status or articulates each step in the process that Mr and Mrs Kioa needed to undertake in order to change their status and that was what his Honour found to be a sufficient right or interest to attract the rules of natural justice to that decision and his Honour makes that link – if your Honours turn to page 624, the middle paragraph, the one that starts “The second indicium”. Towards the end of that paragraph on page 624 there is this statement:

The complex of powers contained in ss 6, 6A, 7 and 18 are directed to the status and disposition of the immigrant.  The affection of the immigrant’s interests is of the very nature of those powers and the repository must have regard to those interests in exercising them.  And if the legislature intended the Minister or his delegate to have regard to the interests of the prohibited immigrant, the legislature may be presumed to intend that the prohibited immigrant should be heard before those powers are exercised.

So there is no need for this direct and immediate link that the Commonwealth posits because this is not a statutory scheme that works in that way.  It is a statutory scheme that goes through a number of stages.  But the whole point about an offshore entry person is the only gateway into the Act and into the change of status is section 46A and 195A.

HAYNE J:   Well, whether or not that is right, I understand the force of the proposition you put, but the plaintiff was detained whilst this process was being undertaken and his detention during that period was not referable to the practicality of removing him from Australia.  Removal processes had not then begun.

MS MORTIMER:   That is so, your Honour.

HAYNE J:   And his detention during the application to him of this process, you would say, as I understand it, depended upon the lawfulness of application of the process both in the sense of it was a process which the Act accommodated, but that the process itself had to be undertaken according to law.

MS MORTIMER:   Yes, your Honour, that is so.  The principle and obvious interest of the plaintiff and the principle and obvious right is his liberty.  We do not, we submit, really have to go beyond that in the scheme and the way the scheme has been applied to him.  The only change to his status can be achieved through the grant of a visa.  Your Honours, I am conscious of the time, and in terms of the evidence, I have not yet had a chance to take your Honours through the Independent Merits Review Manual, but before I get to that I do want to take your Honours to the pro forma letter that is said by the first instance manual to be sent to a person who gets a positive outcome at the first instance – that is at page C197 – because this is the first of the documents on which we rely to show what we say is really an automatic outcome.  Your Honours will see the second paragraph says:

I am writing to inform you that after a thorough assessment of your claims, and following careful consideration of all available information, you have been found to be a refugee as defined by the Refugees Convention.

The next paragraph says:

The Minister for Immigration and Citizenship has exercised his power under Section 46A(2) of the Migration Act 1958 to allow you to lodge a protection visa (PV) application.

In the same letter a person is informed of the outcome of the process and the exercise of the 46A power and that is because, as these documents reveal, that is the intended outcome.  If you get a successful determination, you are going to have the bar lifted, and that is exactly what this letter discloses.

HEYDON J:   What was involved in the Department processing the application?  It implies that there is something more to be done.  On one reading of this letter the minute you read the words “The Minister has exercised the power and you have been found to be a refugee”, there is no entitlement for you to be incarcerated a minute longer.

MS MORTIMER:   Your Honour, this only allows the lodgement of a protection visa application, so it does not ‑ ‑ ‑

HEYDON J:   Yes, but if you have been found to be a refugee and you are allowed to lodge it, why is not lodgement and the opening of the door to freedom simultaneous?

MS MORTIMER:   Almost simultaneous?  Well, your Honour, this is the point at which I should take you to the other key piece of evidence that proves that it almost is.

HEYDON J:   All right, if that is in the order of your address, by all means.

MS MORTIMER:   Yes, your Honour.  I am happy to do that.  It is exhibit AM‑6 at page C115.  This is deposed by Mr Metcalfe to be a real, live – it is not a pro forma.  This is a real, live example, de‑identified, of the way this process works.

The first thing that we would note is that the purpose is said to be to seek your decision on whether you wish to exercise your 46A power and we note the dates and we ask your Honours to look carefully at the next bit, “Urgency”:

Please action by 21 May 2010.
In order to allow time to finalise logistical arrangements for visa grants the week beginning 24 May 2010 –

three days it is going to take from the lifting of the bar, not just to an application but to the grant of a visa.  Three days.

HEYDON J:   I do not see why it does not take three minutes.

MS MORTIMER:   Well, your Honour, presumably there are processes but ‑ ‑ ‑

HEYDON J:   What would they be?  The discovery of some adverse information which indicates the earlier finding of refugee status was erroneous?

MS MORTIMER:   One would think not, your Honour, and one of the reasons for that is what is at the bottom of this document on this page because, bearing in mind that this purports to be prior to the lifting of the bar and yet, all health, character and security clearances have been finalised for these people.  Those are protection visa criteria, not part of the RSA process.  The carrying out of those requirements only has relevance and could only be authorised bearing in mind these are inquiries made of ASIO, these are inquiries made disclosing these people’s identities and they are only authorised for the grant of a visa.

FRENCH CJ:   I suppose under 46A(1) on one reading of it, an application for a visa could be made prior to ministerial intervention but it would not become a valid application until ministerial intervention, just looking at how the timing might be organised.  Do we know how that was actually done or is done?

MS MORTIMER:  At what stage the visa application is filled out, your Honour?

FRENCH CJ:   Yes.

MS MORTIMER:  There is actually no evidence about whether a visa application is filled out.

FRENCH CJ:   I see.

GUMMOW J:   I suppose what this document at C115 may assist you is that the steps are predicated on the basis that it will be in the public interest for the Minister to lift the bar on being told that there is a finding of existence and protection obligations.  That seems to be how it works.

MS MORTIMER:   Absolutely, your Honour, and that is made express in the next document at C119, because this is the statement made to Parliament and what is the public interest identified?  The only public interest identified is that these people had been found to be owed protection.

FRENCH CJ:   That rather takes us back to the question of whether this reflects a ministerial policy decision that satisfaction of a positive outcome in the RSA process satisfies the public interest requirement for the purposes of section 46.

MS MORTIMER:  Yes, your Honour.  We would submit that it reflects the relevant consideration in the public interest, something that must be considered.

FRENCH CJ:   Well, there is nothing else reflected in this process.

MS MORTIMER:   No, your Honour, absolutely nothing else.

FRENCH CJ:   That might be an appropriate moment to adjourn.  We will come back at 2.15pm.

AT 12.47 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.19 PM:

FRENCH CJ:   Yes, Ms Mortimer.

MS MORTIMER:   If the Court pleases.  May I return to your Honour Justice Heydon’s question to me just before the luncheon adjournment about why, where there is a positive RSA determination, there is not an instantaneous change in status by visa grant.  It seems to us, if your Honour pleases, that there are two answers to that.  If the Minister elected to use his power under section 195A, which is available to him in these circumstances and recognised in the RSA process, then there could be an instantaneous grant of a visa.  That is because that power is not constrained in particular by the requirements of section 46 of the Act that there be a valid application so that could be instantaneous.

It appears that power is available and your Honour could see that from the manual at page C225 and I will just give your Honours that reference.  There appears in practice, however, to be a policy choice that section 195A is only used in circumstances where it is found by the RSA determination process that protection obligations are not engaged and there appears to be a policy choice made, but it is only in those circumstances that 195A might be used, although that does not, in our submission, appear to be reflected in the guidelines.  But as a matter of practice, for example, in Mr Metcalfe’s affidavit, that is the description that is given.  If the Minister elects to use section 46A, then it is not possible for the process to be completely instantaneous because ‑ ‑ ‑

HEYDON J:   Not instantaneous perhaps, but one second would come after another second ‑ ‑ ‑

MS MORTIMER:   Yes, your Honour, but section 46 and the requirements of a valid application are then engaged so that the matters in section 46 about a valid application need to be satisfied and they include – and through section 46(1)(b) and section 46(4) those matters pick up prescriptions in the regulations about what is needed for there to be a valid application.

HEYDON J:   But need the determination be laid before each House of Parliament before the grant of a visa takes place?

MS MORTIMER:   No, your Honour, no, and that is why in the material that I took the Court to shortly before lunch it appears that the process can be undertaken in a matter of days because there must be a communication that a visa application needs to be lodged, and that is of a particular kind. If I might just give your Honours the references in the regulations to where that prescription is? The progression is through section 46(1)(b), section 46(4), regulation 2.07, and Schedule 1, item 14.01. If you put those things together the effect of them is that the approved form 866 of the application for a protection visa must be used in order for the application to be valid and then for it to be able to be considered under section 65.

So that, in our submission, explains why the process may take a couple of days but, of course, it would run into problems with the detention power if it were to take too long, in our submission, but clearly it may take a couple of days if 46A is to be used.  That document at exhibit AM-6 that I took the Court to before the luncheon adjournment demonstrates it is quite a short time, but nevertheless there is a period required.

Now, your Honours, in the interests of time I do not propose to take the Court in oral argument to the particular pages of the merits review guidelines, exhibit AM-8 that we rely on, but may I give your Honours some application book references and these references demonstrate a number of things.  They demonstrate again the ties back to the Act.  They demonstrate the authority of the Minister in issuing this process.  They demonstrate the close attention to procedural fairness that the process gives.  They demonstrate that independent merits reviewers are subject to direction by the Department and the Minister and they demonstrate a very close relationship between these reviewers and the Refugee Review Tribunal.  Those are the things these references demonstrate.  The references are C208, C212, C213 and C216, if the Court pleases.

Just returning to a question from your Honour the Chief Justice before lunch about whether the notice at supplementary application book page 18 was a statutory form, our understanding is that it is not, your Honour.  If the Court pleases, that leaves me to address, by way of oral argument, something about the grounds of review in relation to the claims made by the plaintiff in this proceeding.  I propose to develop orally only two of the grounds:  ground 11, which is our procedural fairness ground and ground 14 which is our failure to deal with a claim ground, and really only to develop some points that have arisen by reason of the Commonwealth submissions made against us.  We are otherwise content to rely on our written submissions about the grounds.

In relation to ground 11, the procedural fairness ground, each of the allegations made in that ground deal with a failure to disclose country information.  That is the nature of the denial that is said to have occurred.  What is said to have occurred in the decision‑making of the independent reviewer is that the independent reviewer used country information to make adverse findings against the plaintiff on credibility.  If I can ask your Honours to go to Mr Karas’ decision at page 112 of volume 1 of the application book and to go in particular, if the Court pleases, to pages 128 and following – these are the parts where we get to the findings.

There is a consistent theme that emerges in these findings starting at paragraph 35 and it is a series of findings that the plaintiff has embellished and exaggerated his difficulties and embellished and exaggerated the situation in Sri Lanka.  That is the finding in paragraph 35.  That theme of embellishment and fabrication of his story of the situation in Sri Lanka and of inconsistencies between what he says happens there and what the country information says, in our submission, is a consistent theme throughout the rest of these paragraphs in this part of the decision. 

The way in which country information is used is to decide that the plaintiff should not be believed about his own account and about what the true situation is in Sri Lanka if he were to be returned there.  So it is those two issues that is the use that is put to the country information.  We do not apprehend, if the Court pleases, that it is contested that none of the country information in terms of the way it was eventually used by the independent reviewer was put to the plaintiff.  So if, for example, your Honours look at the interview which is in the application book at page 142 onwards, your Honours will see nothing said by the independent reviewer to the plaintiff or to his adviser about the country information that the independent reviewer had and what it meant. 

What your Honours will see, for example, on pages 161, 162, and then particularly 165 onwards, is both the applicant and his adviser putting a whole lot of positive evidence and submissions about what the situation was like in Sri Lanka and the adviser, in particular, from page 165 of application book onwards, spends quite a bit of time talking about what the current situation is in Sri Lanka and what the country information reveals.

FRENCH CJ:   The factual base for determining what information was relied upon and not put is set out in the Digest of Factual Material?

MS MORTIMER:   In the digest that is so, your Honour.

FRENCH CJ:   And that is largely agreed, I think?

MS MORTIMER:   It is, your Honour.  So I do not propose to go to that.  The simple point is that there was nothing put back to the applicant or his adviser to say, “Well, I think you are wrong about that” or “I do not think the country information bears that out” or “What about these bits of information?” or most notably, in our submission, “I have and you do not have because it is not publicly available a DFAT table that says this.”  So we do not have that kind of engagement on the evidence at all and, in our submission, that makes it, in terms of common law procedural fairness, a reasonably straightforward denial of procedural fairness.

Now, it is said by the Commonwealth, well, the material was not adverse, it is used adversely, and there is a difference between that, says the Commonwealth in their submissions.  We would urge the Court to reject that supposed difference principally because it runs counter to what this Court said in Applicant VEAL about the timing of the delivery and observation of the obligation to afford procedural fairness.  One does not look at the reasons and ask how the material was used in order to determine whether the obligation was met or not met.  This country information had the capacity to be used adversely to the plaintiff and, indeed, it was, and it was relevant to the central issue about whether his account of what had happened to him in Sri Lanka should be believed and whether what he was telling the independent reviewer about what the situation was in Sri Lanka was an accurate account or not.

So this material had the capacity to be used adversely to him and that, in our submission, will generally always be the most that can be said about country information when it is not personal.  The reason a plaintiff needs an opportunity to respond to country information is because it will have varying uses and it will have varying shades, and there will be parts of it that may be favourable and parts that are unfavourable.  There will be unfavourable parts that could be answered by a reference to another part and that, indeed, was precisely the situation in this case. 

In paragraph 33 what that list shows is that in the country information actually used by the independent reviewer, but not these parts, there was quite a lot of material support for what the plaintiff was saying, but because the plaintiff was not put on notice that this country information, in terms of what the independent reviewer was apprehending, did not support his claim, these were not references that he was able to make.

So the opportunity to respond and the opportunity to deal with material clearly that was credible, relevant, and significant and had the capacity to be adverse to him, that opportunity was denied to him and at common law in terms of procedural fairness we submit that is enough to make out the ground of review.

We also submit in response to what is said by the Commonwealth that care needs to be taken in not setting the threshold for denial of procedural fairness too high when information like this is used in the assessment of credibility.  This is a point that is made in Aala by both the Chief Justice at paragraph 4 and by your Honour Justice Gummow and Justice Gaudron at paragraphs 76 to 80.

It is very difficult to unpick the contributing factors to credibility findings where there has been non‑disclosure of material.  In terms of, with the benefit of hindsight, saying it did not make a difference or it could not have made a difference or it was not, in terms of the language of the Commonwealth’s submissions, it was not critical, it was not determinative the way that country information is used to assess the credibility of a person’s claims is, in our submission, often cumulative and impressionistic.

Where there is a complete denial of any opportunity to answer a proposition that a decision‑maker clearly has in mind that the whole fabric of a person’s claim is undermined by what the country information said and credibility findings follow upon that, then in terms of identifying a denial of procedural fairness, we submit, not too a high threshold can be imposed because one cannot simply unpick or focus on one piece of country information and say you cannot be sure that that was determinative.  Of course you cannot.

Here we have a complete denial of any country information being put to this applicant and no qualifying excuses such as one might have under section 424A of the Migration Act.  We are in the realm of the common law here.  If the Court pleases, that is all I want to develop orally by way of the denial of procedural fairness claim.

Can I come now to ground 14, which is failure to deal with a claim.  There are two reasons that I seek to spend a couple of moments developing this orally.  Firstly, if the Court pleases, because it is a very stark example of the choice about reviewability and non‑reviewability and what law substantively governs this RSA determination as between the Commonwealth and the plaintiff in this case because in terms of the concept of jurisdictional error, the failure to deal with a claim is, we submit, a well‑recognised and classic example of a jurisdictional error.  The Commonwealth would say a person may make five claims, an RSA reviewer may deal with only one and it does not matter because there is relevantly no enforceable boundaries around their authority to decide and, indeed, they are not really deciding anything. 

The plaintiff made, as we point out at paragraph 75 of our written submissions, a clearly articulated claim to be a member of a social group, wealthy Tamil businessmen.  May I take the Court to the way that claim was put in the application book at volume 1 at page 187.  There are two subparagraphs that identify the plaintiff’s claim here; the first is subparagraph (b) on page 187 and the second is (c) and (c) is the one on which we are focusing:

that the applicant also faces a risk of harm on account of his profile as a shop owner, on account of his membership of the particular social groups ‘Tamil business owners’, or ‘Tamils who are perceived to be wealthy’ on account of his family’s jewellery shop.

Now, physically, in the way the submission is presented, it is separated from the claims in (b).  That may be the practical explanation of why the Tribunal overlooked it, because if one looks at the Tribunal’s reasons at paragraph 6, application book 113, one will see a complete replication of the claims in (b) and an omission of (c).  So underlying this could just be a true failure to advert to a claim in a practical sense.  But in the submission this claim is, in our submission, significantly developed and a lot of time was spent on it by the adviser.  Your Honours will see that from page 199 of the application book.  That is where the articulation of the basis for this claim starts.  Paragraph (b):

The risk of harm to the applicant at the hands of government backed paramilitary groups on account of his membership of the particular social group ‘Tamil business owners’ or ‘Tamils who are perceived to be wealthy’.

This submission is developed by reference to country information right through to page 204 of the application book.  So we are not dealing with a one line claim, we are dealing with a significant claim advanced by reference to quite a substantial amount of material.  It is dealt with, we accept not as fulsomely but it is dealt with by the applicant himself in his statutory declaration at page 180 of the application book in paragraphs 12 and 13.  In paragraph 12 he deposes to the extortion that was occurring in relation to Tamil families living in Chilaw.  In paragraph 13 he talks about the fact that many of the Tamils are financially better off than others and that that annoys others.  It is clearly not as sophisticated in articulation as the one then developed by his adviser, but that is the norm rather than the exception, in our submission.

HEYDON J:   The Solicitor‑General contends that it was not raised or discussed during the interview.  Do you agree with that?

MS MORTIMER:   Yes, your Honour, that is an agreed ‑ ‑ ‑

HEYDON J:   He says that, in effect, your client should have raised it during the interview, in other words, not merely have put it in the statutory declaration, not merely have put it in the adviser’s document, but also raise it during the interview.  The question is, is he right in saying that as a matter of fact?

MS MORTIMER:   Not in terms, in our submission, your Honour, of the obligation on the reviewer to deal with it.  Now, it is important in this context to understand, in our submission, that the interview is driven in an inquisitorial manner by the reviewer and what occurs at the end is an opportunity for the adviser to put some material and one, not unnaturally, will expect the adviser to focus on what the interviewer has been asking about, and that is exactly what happened in this process.

So there was no inquiry by the reviewer about this claim and there was no response to it by the adviser.  As a matter of fact that is correct, your Honour, but we say that does not relieve the reviewer from the obligation to consider the claims that were raised and their Convention basis in deciding whether this was a person to whom Australia owed protection obligations.  Obviously, there is a level of significance and materiality at which that obligation will disappear but we submit we are above that level because of the very clear and quite lengthy way in which the claim was put in writing.

The only response on the merits by the Commonwealth to this is, in terms of looking at the independent merit reviewer’s findings, to look at two very general findings towards the end of the decision and I am taking this from the Commonwealth submissions at paragraph 76.  The Commonwealth relies on two things said by the independent merits reviewer at page 133 of the application book, the third line from the top of 133, this is the first one relied on, where the reviewer says:

I do not accept that he was, or is, of interest to the police, army, authorities, paramilitaries like the Karuna group or anyone else in Sri Lanka for the reasons that he claims -

Now, that is simply, in our submission, a rolled‑up finding that could not possibly be characterised as dealing with this claim.  The second passage relied on by the Commonwealth is the last part of that paragraph where the reviewer says:

I find that the claimant does not face a real chance of persecution from the Sri Lankan police or army, or paramilitaries like the Karuna group or anyone else either now or in the foreseeable future because of his imputed political opinion, his membership of a particular social group of Tamil ethnicity -

That is not the claim.  That is a different claim -

and whose brother was recruited by the LTTE in 2001, or for any other Convention reason -

So the Commonwealth relies again on that rolled‑up catch‑all at the end and that similarly, in our submission, cannot possibly constitute the dealing with a clearly articulated and particularised claim.  Our submission is that if we were in the Federal Magistrates Court with a claim like that, jurisdictional error, it is the kind the Commonwealth would give up on.  It is a very clear jurisdictional error.  So it, in that sense, serves as a useful vehicle to test the competing claims of the parties in this case about whether the decision is of a character susceptible to review and what the boundaries of the power exercised by the independent merits reviewer are.  If the Court pleases.

HAYNE J:   Just before you sit down, Ms Mortimer, can I take you back to the next subject of Part 8 and privative clauses?

MS MORTIMER:   Yes, your Honour.

HAYNE J:   Your argument in part is, I think, an argument – well, is it an argument that says that there is a decision being made under the Act?

GUMMOW J:   And before you answer that, have a look at 474(3)(h).

MS MORTIMER:   Yes.  The answer to your Honour Justice Hayne’s question is yes.

HAYNE J:   Where does that take us then in respect of Part 8 and Division 1 of Part 8 and privative clauses?  If we accept that limb of your argument, what is the consequence?

MS MORTIMER:   It takes us to Plaintiff S157 in my submission and it takes us to what this Court has said about marking out the boundaries of the exercise of a decision‑making function and the concept of jurisdictional error which, in substance, is what I put in answer to your Honour Justice Gummow this morning.

GUMMOW J:   But at the time of Plaintiff S157 there was not section 5E.  That is post, is it not – post S157?

MS MORTIMER:   Yes, it is, your Honour, but I do not understand the Commonwealth to have been submitting in this Court that a decision that is affected by jurisdictional error is otherwise now protected by section 474 by reason of 5E.

FRENCH CJ:   Where is that definition picked up in Part 8?

MS MORTIMER:   Your Honour, I think there is a definition ‑ ‑ ‑

FRENCH CJ:   Of the term “purported privative clause decision”.

GUMMOW J:   It runs through 476, I think, and it runs through 476 ‑ ‑ ‑

FRENCH CJ:   That goes to the statutory jurisdictions, I think, does it not?

MS MORTIMER:   Yes, your Honour, I think it links into the concept of what is a primary decision.

FRENCH CJ:   But does it impact on the constitutional jurisdiction, or purport to?

MS MORTIMER:   My understanding is it does not, your Honour.

GUMMOW J:   Sorry, could you say that again?

MS MORTIMER:   It does not impact on the constitutional jurisdiction.

FRENCH CJ:   It goes to those statutory jurisdiction provisions coming out of the Judiciary Act.

MS MORTIMER:   And the division between which court has jurisdiction to deal with which kind of decision. 

FRENCH CJ:   I notice that 195A decisions are expressly included in the definition of “privative clause decision”, but 46A is not mentioned.  But you would characterise this as a 474(3)(h).  Any other category?  I think some of them overlap.

MS MORTIMER:   Yes, your Honour, at least it would be that because it is a decision, we have submitted, on a mandatory consideration under 46A and, as such, it appears to fit within conduct preparatory to the making of a decision which would be the decision to lift the bar under 46A.

FRENCH CJ:   On the case of a negative so‑called recommendation which does not go to the Minister who never sees it, the decision must somehow arise out of this implied policy that “I will not consider cases in respect of which there is a negative assessment for the purposes of section 46A”.

MS MORTIMER:   We would say, your Honour, I would not exercise my power in respect of cases where there is a negative outcome.

FRENCH CJ:   All right.

HAYNE J:   Two other questions about, in effect, findings of fact that I think you may be inviting us to make.  First, I would understand you to be saying that the processes established within and followed by the Department would found the conclusion that for the avoidance of breach of international obligations the Minister directed inquiries to be made about the refugee status of offshore entry persons.  Is that right?

MS MORTIMER:   Yes, your Honour.  That is right.

HAYNE J:   I understand your submissions to go what may be the same step or a further step, I do not think it presently matters which it is classified as, that the procedures also found the conclusion that the Minister has begun an inquiry, whether the public interest as understood under 46A, which includes observance of international obligations, is engaged.

MS MORTIMER:   Yes, your Honour.

HAYNE J:   Thank you.

MS MORTIMER:   If the Court pleases.

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

MR McLEISH:   If the Court pleases, we want to commence with our constitutional invalidity argument and then turn to the different, alternative route by which we say judicial review is available in respect of the two decisions made under the scheme in our case.

MR McLEISH:   There will be seven stages in this argument, and it is probably useful if I just ‑ ‑ ‑

FRENCH CJ:   Seven ages of man.....

MR McLEISH:   I hope it will not be quite like that, your Honour. As I said, the first part of our argument is that section 46A is invalid because section 46A(7) attempts to stultify the constitutional jurisdiction in section 75(v) of the Constitution. If we are right about that, then there is no bar to an application for a protection visa and judicial review of the decisions under the scheme would serve no purpose. The remainder of our argument is in favour of the availability of the judicial review on somewhat different grounds to those that Ms Mortimer put forward, although, of course, we adopt her submissions as an alternative and the Court can only come to one characterisation of this scheme in these two cases.

So the second step is that if section 46A is valid, then the plaintiff has rights and interests, though capable of being affected by the decisions made under the scheme, and to show that, I will be taking the Court to some further evidence of the relationship between the scheme and section 46A. The third step in the argument is that the decisions were made in the exercise of the executive power of the Commonwealth under section 61 of the Constitution, and this is where we adopt a different approach to Ms Mortimer. We submit that the materials show at least that the decisions were made and the scheme was established for the purpose of the administration or execution of section 61 and that as a result, the power that was being exercised was executive power under section 61 of the Constitution.

The fourth step in the argument is that in the exercise of that power the rules of natural justice are attracted and the fifth and sixth steps go to relief. Firstly, we will submit that certiorari goes because the decisions under the scheme operate as a precondition to the minister considering whether to exercise his power under section 46A(2) and we rely on Hot Holdings and Lain’s Case for that proposition.  Sixth, we would submit that mandamus should go to require the incomplete tasks assigned under the scheme to be performed according to law.  Finally, the seventh step, we wanted to take the Court very briefly to the five grounds on which we rely.

So commencing with invalidity; the starting point for that argument are some observations of the Court in Bodruddaza v Minister for Immigration 228 CLR 651. This is a joint judgment of six members of the Court with which Justice Callinan expressed his agreement subject to an irrelevant reservation. At page 668 in paragraph 45 of the judgment the Court approved the observations of Justice Dixon in the Banking Case about the special significance of section 75(v) where:

His Honour said that the purpose of the inclusion of s 75(v) [of the Constitution] was “to make it constitutionally certain that there would be a jurisdiction capable of restraining officers of the Commonwealth from exceeding Federal power”.

The Court went on to endorse what was said by five members of the Court in Plaintiff S157 in the following paragraph on page 669.  In our submission, both these paragraphs are important because they emphasise not only the existence of the jurisdiction, but also its practical capacity to restrain both excesses of federal power and to remedy the neglect of that power.  In Plaintiff S157 what the Court said was that:

“The reservation to this Court by the Constitution of the jurisdiction in all matters in which the named constitutional writs or an injunction are sought against an officer of the Commonwealth is a means of assuring to all people affected that officers of the Commonwealth obey the law and neither exceed nor neglect any jurisdiction which the law confers on them.  The centrality, and protective purpose, of the jurisdiction of this Court in that regard places significant barriers in the way of legislative attempts (by privative clauses or otherwise) –

and we say we are in the “otherwise” category in this case –

to impair judicial review of administrative action. Such jurisdiction exists to maintain the federal compact by ensuring that propounded laws are constitutionally valid and ministerial or other official action lawful and within jurisdiction . . . The Court must be obedient to its constitutional function. In the end, pursuant to s 75 of the Constitution, this limits the powers of the Parliament or of the Executive to avoid, or confine, judicial review.”

I note we make references to some other authorities in footnote 16 on page 6 of our written submissions.  As I submitted, these observations have a practical focus, that is the assurance of all people affected that the law will be applied and obeyed by those exercising federal power, to use the phrase of Justice Dixon.  The principle that emerged in Bodruddaza was set out at paragraph 53 on page 671, and that is that a law is invalid:

if, whether directly or as a matter of practical effect, it does not so curtail or limit the right or ability of applicants to seek relief under s 75(v) as to be inconsistent with the place of that provision in the constitutional structure, as explained in Plaintiff S157/2002.

The judgment emphasises that that is a matter of substance or practical effect, and not merely one of form. That is in paragraph 54. We submit that here we have a law which, by section 46A(7), has exactly that forbidden effect. That is because of the way that the Court explained the operation of section 417 of the Act in Applicants S134 211 CLR 441. At page 461 in paragraph 48 the Court succinctly described what it called the “fatal conundrum” which, in that case, section 417(7) gave rise to and that was a provision in the same terms, relevantly, as section 46A(7). The five members of the Court there said that:

On the footing that prohibition or injunction and certiorari issue, directed to the Minister, the prosecutors seek mandamus requiring the Minister to reconsider the exercise of his power under s 417(1). However, s 417(7) states in terms that the Minister does not have a duty to consider whether to exercise the power conferred by s 417(1). That gives rise to a fatal conundrum. In the express absence of a duty, mandamus would not issue without an order that the earlier decision of the Minister be set aside. Further, in that regard, there would be no utility in granting relief to set aside that earlier decision where mandamus could not then issue.

The same point was made by Justices Gaudron and Kirby at page 474 in paragraph 100. In other words, because the Minister is under no duty to consider whether to exercise the power, mandamus clearly does not go, but also nor does certiorari. Even if the Minister exercises the power, there is no point in granting relief to set aside the decision where mandamus does not go and that is the fatal conundrum. So subsection (7) bites even if the Minister does decide to exercise the power and thereby renders the constitutional relief for which section 75(v) provides futile. For that reason we say that section 46A(7) does curtail or affect the exercise of that relief and its position in the constitutional structure in the way explained in Bodruddaza.

We set out in the written submissions other arguments which we rely on which really draw on different components of the constitutional structure which were not expressly identified in Bodruddaza but which we say do reach the same result.  The first of those, which we refer to in paragraph 22, is Justice Dixon’s well‑known observation in the Communist Party Case that the rule of law requires that limits on power can be enforced by the courts and we say that subsection (7) prevents that from happening.

The second component of the constitutional structure was that identified recently in Kirk and that is that the Constitution does not envisage islands of power, including executive power, that are immune from supervision and restraint. The third matter we refer to is the uncontroversial principle that a non‑judicial body cannot determine the limits of its own power. We say that each of those principles is defeated by a provision which effectively prevents this Court from granting useful or practical relief for a departure from the limits provided for in section 46A.

HEYDON J:   Could we go back to Mr Justice Dixon in the Communist Party Case. He says that the rule of law forms an assumption underlying the Constitution. Bearing in mind that the rule of law is an extraordinarily controversial and fuzzy conception, does that mean that all elements of whatever one thinks to be the rule of law are constitutionally mandated?

MR MCLEISH:   I think, your Honour, probably the answer to that is that the implications remain to be worked out, but the aspect of it that we rely on is that limits on power can be enforced by the courts.  We do not need to go any further about other aspects of the rule of law.

CRENNAN J:   There might have been a reference to things that are omitted like due process, for argument’s sake, but that the Constitution is framed on the assumption of the rule of law which may, in effect, if you consider Chapter III, reach results not all that dissimilar from the results that might have been reached if there were an express guarantee.

MR MCLEISH:   We do want to make a submission about procedural fairness, your Honour, but we do not go so far as to say there is a substantive content to that. For the argument on validity it is sufficient that the rule of law envisages that the courts enforce limits on power and for the Parliament to confer a power on a Minister subject to limits and then attach to that power a provision which has the effect of preventing the constitutional jurisdiction in section 75(v) from being exercised in relation to that power we say does offend the constitutional structure and that aspect of the rule of law forming part of that structure.

HEYDON J:  I just want to see how this fits with section 46A(2). If that had been enacted without subsection (7) you would submit, would you, that subsection (2) confers a discretion but that discretion is coupled with a duty to consider whether or not it should be exercised?

MR McLEISH:   Yes, your Honour.

HEYDON J:   And 75(v) could operate in relation to that subsection (2) duty.

MR McLEISH:   Both in relation to a failure to exercise it or to correct its mis‑exercise.  That is how we conceive the section would have operated, but for subsection (7).

HEYDON J:  What worries me is – and this may not be fatal to your argument – there may be scattered through the vast bulk of Commonwealth legislation a large number of provisions that do not have a subsection (7) attached to them and nonetheless do not really have any duty of any kind attached to them. On this reasoning, this assumption of the rule of law implicit in the Constitution, there would be a lot of invalidity about – it is a bit difficult to deal with in the abstract, I appreciate. I am just worried of the practical consequences of your argument.

MR McLEISH:  We appreciate that concern, your Honour. Perhaps it is best looked at by the assumption that there must be a matter in order for section 75(v) to be engaged. The most obvious, possibly even the only way in which that might happen, would be if there was an application or request for the relevant power to be exercised. We only need to go so far as to say that there is a duty to exercise the power when asked to do so, to exercise it one way or the other and not merely to ignore the request for application and that if that is a lawful refusal that can be adjudicated and the Court can determine whether the grounds of refusal were justified. It is a general question. Provisions such as subsection (7) though, as far as we have been able to find, are only found in the Migration Act, but I will come back to that shortly.

FRENCH CJ:  That went back to – I think, as I put to Ms Mortimer earlier on – section 115 in 1989 and then the clear purpose seems to have been simply to exclude the possibility that a failure by the Minister to consider could be characterised as a decision for the purposes of the Administrative Decisions (Judicial Review) Act.

MR McLEISH:   Yes, your Honour, that was of course in a climate when generally that was where migration decisions went.

FRENCH CJ:   Indeed, they were getting rid of parts of 6A, I think, at that time.

MR McLEISH:  But that purpose being achieved by that mechanism, we say similarly, but invalidly the purpose of excluding review under section 75(v) was achieved at the same time in exactly the same way.

HAYNE J:   But you say in your written submissions in this respect at paragraph 23 that:

One basic element of the rule of law is that where a power is conferred by law subject to limits, those limits must be capable of effective enforcement by the judicial branch.

What is the relevant limit on power, the enforcement of which is prevented, hindered, precluded by 46A(7)?

MR McLEISH:   It is the limit of the public interest, your Honour.  That is the criterion by which the power has to be exercised and albeit that it is a broad criterion it is still one which the courts are capable of reviewing.

GUMMOW J:   It is not the public interest.  It is what the Minister thinks.  Is that an Avon Downs type situation?

MR McLEISH:   No, your Honour, we would prefer to rely on Water Conservation v Browning, that the scope and purpose of the statute need to be identified and considerations extraneous to that would not be ‑ ‑ ‑

GUMMOW J:   The Minister’s power - “The Minister may” is conditioned upon the earlier state of affairs, namely the Minister thinks.  Is that not right?

MR McLEISH:   It is, your Honour, but ‑ ‑ ‑

GUMMOW J:   It is a…..jurisdictional fact.

MR McLEISH:   It is, your Honour, but the Minister must still inform him or herself by reference to the public interest and broad as it is it is still a criterion capable of review in the court.

GUMMOW J:   Yes.

MR McLEISH:   It is not completely open ended and in Browning – I should give the reference to that. It is 74 CLR 492 and especially Justice Dixon at page 505. The difference between the absence of limits on power and the absence of extraneous considerations is identified. That is how we say the ‑ ‑ ‑

GUMMOW J:   How does subsection (7) connect with subsection (2) which has two limbs to it.  The first limb of subsection (2) is the Minister’s thought processes.  The second element in (2) is the Minister may then do something.  What is the consideration talked of in (7)?  Is it the jurisdictional threshold or is it the subsequent exercise of power, or both?

MR McLEISH:   We construe (2) as the may and (2) being a must in the Julius v Bishop of Oxford sense.  So that if the Minister thinks it is in the public interest to do so, Parliament expects the Minister to lift the bar.

GUMMOW J:   I see.

MR McLEISH:   So we say that subsection (7) goes to the consideration of the public interest.

GUMMOW J:   So the expression “to consider” goes to the first step whether he or she thinks it is in the public interest, is that right?

MR McLEISH:  Yes, that is how we submit the section operates.

BELL J:   In your reply submissions you deal with the submissions advanced by the first and second defendants in paragraph 20 of their submissions by pointing out that in Applicants S134 the validity of section 417 was not in issue. You do not deal with the submission that you are ultimately driven to a contention that a power conferred must in every case be accompanied by a duty to consider the exercise of the power and the ramifications that might have which the defendants rely on.

MR McLEISH:  Yes, your Honour, I attempted to deal with that in answer to Justice Heydon, but, in short ‑ ‑ ‑

BELL J:  And is the answer that the only place you find a provision of this character is in this Act?

MR McLEISH:   Well, that is in subsection (7), yes, your Honour, but ‑ ‑ ‑

BELL J:   But what of the proposition that is being put?

MR McLEISH: We would say that where there is the conferral of a power which is capable of affecting rights such that a matter might arise under the Constitution if a persons asks for the power to be exercised and the holder of the power declines to exercise the power, then it is in that more confined class of case that there could be that obligation and it is not a radical proposition, we submit, if the power has been conferred that on a request by a person to exercise that power the statutory office bearer or the Minister or whoever has been given the power is required to consider whether to do so.

Now, there might be, and there are ways of preventing abuses in that situation and the courts have reference to section 46A and section 46B about repeat applications for protection visas and matters of that sort, but we submit that there would be nothing surprising about a person given a power to be exercised – a public power to be required to consider whether to do so when someone who might be affected by the way in which the power is exercised asks for that to be done or applies for that to be done.

Of course there will also be other areas, your Honour, where a matter is not justiciable and that is a separate consideration, so there may well be the statutory powers whose exercise is not reviewable, but that is because there is no matter, as I think your Honour Justice Gummow explained in Ditfort 19 FCR 347 at page 370. So there will be other classes of case where it will not be appropriate to impose a duty. Those cases are all consistent with the constitutional structure which was referred to in Bodruddaza. We are not submitting that every single failure to exercise a power is going to attract section 75(v).

The Commonwealth also says in its written submissions that ministerial discretions equivalent to section 46A can be traced back to federation. Our researchers have not found provisions such as section 46A(7) outside the Migration Act and in the Migration Act not until 1989, and your Honour the Chief Justice has already referred to the reasons which were given for including the first of these provisions.  I think your Honours have been given copies of the Immigration Restriction Act 1901 which are relied on by the Commonwealth as a predecessor provision. This is Act No 17 of 1901. Section 3 lists a series of categories of persons whose immigration into the Commonwealth is prohibited, and also a series of exceptions and for present purposes the significant exception is in section 3(h) which refers to:

Any person possessed of a certificate of exemption in force for the time being in the form in the Schedule, signed by the Minister –

We would point to the absence of any provision such as subsection (7) relating to whether or not the Minister was required to exercise or decide whether or not to grant a certificate.  Our submission would be that if a person sought such a certificate from the Minister, the Minister would be compellable through mandamus to decide that application.  So that is not truly a predecessor of provisions like section 46A.

We have also had handed to the Court some materials relating to the Migration Legislation Amendment Act(No 2) 1989 and the Migration Legislation Amendment Act 1989.  The numbering of all these provisions – well, the provisions have been renumbered a number of times, but if I can take the Court first to the Migration Legislation Amendment Act 1989, which is Act No 59 of 1989.  This was where what is now section 351 of the Act first appeared in a different form.  It is on page 1576 of that legislation.  Section 64U was inserted into the Act.  This provided that:

Where the Minister thinks that it is in the public interest to do so, the Minister may set aside a decision of the Tribunal –

this was, I think I am right in saying, the Immigration Review Tribunal –

and substitute a decision that is more favourable to the applicant.

That provision did not have the exclusive terms of subsection (7).  Shortly thereafter in the Migration Legislation Amendment Act No 2, section 64U was replaced with what is now the more familiar provision. Page 4799 provided for the omitting of the previous provision and substituting the following section. In new subsection (6) it is provided in terms that are relevantly the same as section 46A(7).

This was explained in the explanatory memorandum, which I think your Honours also have, at item 11 and, as your Honour the Chief Justice said this morning, what was said there was that the section provides that the Minister is not under a duty to consider whether to exercise his power to set aside a decision of the IRT.  Where the Minister decides not to exercise his power, that decision is not subject to judicial review by the Federal Court on the grounds that there has been a failure to make a decision under section 7 of the AD(JR) Act.

The intended breadth of that amendment, although it does not emerge from the explanatory memorandum – the debate on the second reading does flesh out just what was intended.  The second reading speech was moved in the House of Representatives by Mr Holding, and if your Honours have the extracts from Hansard there, on page 3458 at the top of the left‑hand column the Minister says:

To remove confusion as to the operation of the Administrative Decisions (Judicial Review) Act 1977 in relation to the Minister’s powers after each tier of review, provisions have been inserted which provide that there is no duty on the Minister to exercise the power in individual cases.

There is then a lengthy contribution from Mr Ruddock who was, I think I am right in saying, the Shadow Minister at the time. That did not really go to this issue directly but in response Dr Theophanous, who had been the chairman of the Joint Select Committee on Migration Regulations which was part of the whole process of introducing the 1989 amendments, did address the scope of the new section 64U in more detail. At page 3465 of Hansard Dr Theophanous said in the right‑hand column:

Of course, much depends on the Minister’s desire to exercise the amendments to section 64U.  If a Minister does not feel like exercising that power very much, that Minister will look at only a small number of cases.  On the other hand, a Minister who feels like exercising that power comprehensively may desire to look at a very large number of cases.  The situation is left in the hands of the Minister.  There is no requirement – and this is very important – for the Minister to look at cases if he does not feel that the compassionate circumstances warrant anything more than a cursory glance.  In other words, the Minister can decide to use his own system for determining which of those cases will come to his attention and how to deal with them.

That is as it should be.

In our submission, they are the indicia of arbitrary power which fits the purpose of section 75(v) to prevent and, contrary to what was said by Dr Theophanous, we submit that the Constitution does not allow for a person holding a power of this kind just to feel like whether to exercise it or not, and where there are limits placed on the power and an attempt has been made by a person to engage the power, to have the Minister exercise the power, the Minister is required to do more than simply decide whether he feels like it or not.

As we have submitted, the effect of what is said in S134 is even if the Minister feels like exercising the power and that exercise goes wholly astray the result is that there cannot be judicial review of any practical consequence or, indeed, that the judicial review is futile.

HAYNE J:   Does the proposition that you have just advanced require subdivision?  If a power is given to, be it a minister or an official, upon satisfaction of certain matters, and that power is exercised, the decision can be reviewed, in a satisfaction case perhaps only within the limits of Avon Downs, but your proposition seems to be that there can be no conferral of a power on a minister except a Julius v Bishop of Oxford power.  Is that right, that is, if condition is met I must exercise the power?

MR McLEISH:   No, your Honour, because even if it was not a Julius v Bishop of Oxford Case and it was a discretion, the Minister could be directed to decide whether to exercise the discretion, which is effectively to exercise it one way or the other, and the actual exercise of the discretion could be reviewed.  The import of S134 is that even if the power is exercised, where there is no duty to exercise it even certiorari is of no utility, so we would say the same principle would apply whether there was an obligation upon satisfaction of a precondition to exercise the power, or where there was a discretion enlivened.  But our submission is just that the holder of the discretion has to actually address the question of exercising it when application is made for that to be done.

HAYNE J:   That is, in a case where the criteria for exercise of the power are not explicitly spelled out in the Act, and the repository of power must always consider, whether having regard to subject matter, et cetera, an occasion for exercise of the power has arisen.

MR McLEISH:   We say when an application for the exercise is made, and we could add, by a person whose rights or interests may be affected by the exercise but we do not need to bring in the procedural fairness requirement at this point.  We submit that it is simply when somebody seeks the exercise of the power that the obligation to consider whether to exercise it would arise. 

We submit that is not a large implication. We say, really, the large implication is that a provision like subsection (7) is valid because if it is, then presumably every Commonwealth Act could have provisions to that effect wherever there is a statutory power conferred, and nothing would be left for section 75(v) to do in relation to Commonwealth legislation. This is one Act where there are several examples of it, but if it is valid there is no reason we can identify, and we would submit, why every Commonwealth Act might not have such provision or even why there might not be an omnibus provision to that effect.

Your Honour, arguments about severance have been raised but I think it might be most efficient if I leave those to reply.  We have addressed those in our written reply.  I want to now move to the judicial review grounds which, as I submitted at the outset, arise if section 46A is valid.  We identify the interests of a person in the plaintiff’s position perhaps somewhat more narrowly than Ms Mortimer in that we focus on two interests. 

The first is a person’s interest in having the bar in section 46A lifted and thereby becoming entitled to apply for a visa and we say that the interest in having that outcome is an important one and it bears on liberty, but we identify it in that slightly narrower sense.

The second interest is an interest in the nature of a status which is the person’s status in the eyes of the Commonwealth as someone to whom the Commonwealth either does or does not owe protection obligations under the Refugees Convention.  Our submission is that both of the decisions made under the scheme are capable of affecting those interests.  I will take the Court to some further material about the way in which that happens.

The interest in having the bar lifted and applying for a visa is capable of being affected by the making of a determination, whether positive or negative, and we say that it is directly affected.  The interest in the form of status is the very subject of the determinations and in none of the material is there any suggestion that the Commonwealth does anything other than adopt the determinations made under the Refugee Status Assessment Scheme as its own. 

So whether they are styled as recommendations or otherwise the evidence is clear, which I will take the Court to, that once a determination is made as to refugee status, whatever else might flow from that in relation to section 46A, the Commonwealth proceeds on the basis that that is determinative of that refugee status.

FRENCH CJ:   When you say the Commonwealth adopts a determination, what is the character of that adoption?  Are you talking about an exercise of executive power or are you talking about some implied decision or proleptic decision of the kind that Ms Mortimer was referring to?

MR McLEISH:   We say it is an exercise of executive power, your Honour.  So for the rest of the process in relation to an offshore entry person, the applicant is considered either as being a person owed protection obligations or not.  In the application of section 46A the removal process, all the processes under the Act, which are indisputably under the Act, that status which is an important status is taken as determined and ‑ ‑ ‑

FRENCH CJ:   Taken by whom?

MR McLEISH:   Taken by the Commonwealth, your Honour.  The Commonwealth does not second‑guess these determinations or recommendations.  There is a debate over whether it bears on section 46A, of course, but we say there is no debate on whether the Commonwealth treats people as refugees, to use a colloquialism or not.  Once these determinations have been made the process proceeds on that basis and the evidence is that ‑ ‑ ‑

FRENCH CJ:   The process of detention and removal?

MR McLEISH:   Detention and removal and evaluation of claims under sections 46A and 195A and the evidence is also to that effect.  Without going back over the references that Ms Mortimer has already taken the Court to, I did want to go to some other parts of application book 2 and some further evidence in the M69 proceeding which bear on those questions.  Firstly, the affidavit of Mr Metcalfe who is the Secretary of the Department, which has been filed by the Commonwealth, sets out some of the salient background and could I take the Court to page C4 of volume 2?  This bears on the last point that I was making.  Mr Metcalfe says in paragraph 9 on page C4 that:

Following the commencement of the above Acts -

which includes the Act introduced in section 46A -

the Department developed an offshore refugee status assessment process, which was part of what was then referred to as the ‘Pacific strategy’ . . . The purpose of refugee status assessments (RSAs) was, and still is, to ensure that a person who is assessed as a refugee under the Convention . . . as modified by the Protocol . . . is not returned to a country where that person had a well-founded fear of persecution in breach of Australia’s international obligations under the Convention.

Two things we draw from that.  The first is that the assessment is then acted upon by the Commonwealth and the second is that the way it is acted upon is to ensure that the person is not returned to a country where the person has a well‑founded fear of persecution.

The way in which the process works is set out in a flowchart which Mr Metcalfe exhibits as exhibit AM‑5, which was on page C112, and this is a different flowchart to the one that appeared in the RSA manual which Ms Mortimer took the Court to.  It is a little bit difficult to read but it distinguishes between the processes in 46A and 195A.  At about line 15 – or perhaps there is a bifurcation under “Independent Merits Review” “Negative Outcome” and “Positive Outcome” and “Negative Outcome” leads to “Considered for Removal” which is the same place where a negative refugee status assessment ends up.  There is a fork there which looks at whether there are obligations or return issues found and Mr Metcalfe elaborates on those in his affidavit.  If they are found, the matter is referred under section 195A ‑ ‑ ‑

FRENCH CJ:   This is outside the framework of the Refugees Convention?

MR McLEISH:   Yes, exactly, your Honour.  I think it is paragraph 26.  I will take your Honours later to the place where that is made clear in Mr Metcalfe’s affidavit.  There is a fork under section 195A which decides whether those sections are engaged, that is section 195A, and if it is referred, then there is a submission to the Minister for considerations.  They include international human rights obligations et cetera.  Then there is another fork, if the Minister declines to intervene or he does intervene.  We contrast that with the way in which the section 46A process is described on the right‑hand side of this diagram and that is that a positive outcome either from the RSA itself or the independent merits review leads directly to a submission provided to the Minister. 

We appreciate that this is no doubt an oversimplification, but to the extent that it represents the ordinary case and the expectation of how this process works, we say it is significant because not only does the Minister intervene, the Minister lifts the bar.  There is an application for a protection visa in a positive outcome and a visa grant.  A positive outcome does not lead anywhere on this diagram other than to a visa grant.  Now, we appreciate that it is said that there is discretion, it is only a recommendation, to the Minister and that there may be other circumstances that come up at the stage of a visa grant.  But this flowchart, we submit, shows the way in which the scheme is generally expected to operate.

The Court was taken to the form of submission to the Minister and saw that there was an urgency attached to that.  That is at page 115 of the book.  I will not take your Honours back to that.  There are then references in the RSA manual, and again I will not take your Honours back to that except to note that at pages 196 and 197 there are two notification letters, which I think the Court was taken to briefly, one for a negative finding and one for a positive finding and, as Ms Mortimer said, it is all in the same letter.  There is no notification letter saying there is a positive finding, but the Minister has decided not to raise the bar.  That is clearly not the expected way in which this scheme would operate. 

A question was asked this morning about, if Australian case law is not binding on the refugee status assessment process, then where do the rules come from?  Some indication of that is given at page 126 of the manual.  Line 10 says:

An RSA officer may also refer to DIAC’s Refugee Law Guidelines, which provide advice and interpretation of Australian law which is relevant to the assessment of whether Australia owes protection obligations under the Refugees Convention.  As the RSA process is non‑statutory, it is important to note that DIAC’s Refugee Law Guidelines are non‑binding, but may be useful when interpreting Australian protection obligations.

It seems that nothing is really binding because the documents keep reciting that this is a non‑statutory process, but Australian case law ‑ ‑ ‑

GUMMOW J:   That is a negative.  If it is a non‑statutory process, what is it?  What processes are non‑statutory?  Is that ever explained?

MR McLEISH:   It seems to be a mantra that is intended to recite the process out of reach of the courts and we say that the process is one under section 61 of the Constitution; it is an exercise of executive power. If we are wrong about that, we, as I said before, adopt Ms Mortimer’s submission about it, in fact, being a process under section 46A itself.

GUMMOW J:   If it is neither?

MR McLEISH:   Your Honour, we do not conceive of it being possible that it is neither unless we are completely wrong about it having any effect on rights and interests.

GUMMOW J:   We might then be back to the Communist Party Case, I think.  That would be an example of what Sir Owen Dixon was talking about; there would be a black hole.

MR McLEISH:   Yes, your Honour, it would be a frolic and a black hole, with respect, is a good term to describe it.

GUMMOW J:   Not just a folly, because people are incarcerated under this system and transported around the country.

MR McLEISH:   Yes, and it would raise obvious questions about the validity of that of that process.

FRENCH CJ:   Executive power of the exercise of a capacity to inquire, being the capacity which any person has, do you say it goes beyond that?

MR McLEISH:   Yes, I will come to that, your Honour, but in short we say that ‑ ‑ ‑

FRENCH CJ:   How albeit it affects interests in ‑ ‑ ‑

MR McLEISH:   It is not just a capacity to inquire when the Commonwealth does it, it is something very different and certainly when refugee status is being determined it is very different.  In the Independent Merits Review guidelines, which start at page 203 of volume 2 – they start at page 207 by reciting their purpose:

The following guidelines are designed to assist Independent Reviewers, appointed to the Refugee Status Assessment Review Panel, to undertake independent merits review of negative RSA findings.

On the opposite page, again it is hard to read, but it is said:

These guidelines should be read in conjunction with –

various departmental publications, including the RSA Processing Procedures Manual which we take it is AM‑7.  At page 208 there is a description in paragraph 1.4 of, again, the “Non‑Statutory Refugee Status Assessment process”.  Again, it says at line 10:

The RSA process is a non‑statutory process and therefore, the Act, the Migration Regulations 1994 (‘the Regulations’) and Australian case law on the interpretations of the definition of a refugee and “protection obligations” do not apply.

It is not explained how the next sentence follows, but we accept that it is correct and we will make our own submissions why it follows, but it goes on:

However, the common law rules of natural justice or “procedural fairness” do apply ‑ ‑ ‑

FRENCH CJ:   On one view that might be just an instruction to apply them rather than a statement about the law.

MR McLEISH:   Well, yes, your Honour, it probably is now it is intended.  We say that they apply by force of the common law, that is what common law rules are, but, yes, no doubt that is one reading of it.  Then it says:

The RSA process has been implemented to assist the Minister in considering exercising his discretion to allow an application for a visa from an OEP.  The Department’s refugee status assessment officers (‘RSA officers’) are responsible for assessing protection claims made by an OEP.

Again, nobody else assesses those claims, even if it is just a recommendation to the Minister, only these RSA officers and reviewers actually assess protection claims.  Then the process is described at line 20:

Once the Department has completed a RSA, any OEPs found to be owed Australia’s protection obligations –

again, in terms of a finding –

will be referred to the Minister for consideration under section 46A (2) of the Act.  If the Minister considers that it is in the public interest to do so, he may determine ‑ ‑ ‑

HAYNE J:   On that same page, under paragraph 1.5, do we have any evidence or material that would amplify what is there said about a ministerial announcement of enhanced processing regimes for OEPs?

MR MCLEISH:   I am not sure that I have seen that, your Honour.  I might have to answer that question in the morning.  I do not believe it is in our materials.

HAYNE J:   I think the Solicitor may be offering you help in the form of a wooden horse – to your right, Mr McLeish.

MR MCLEISH:   Thank you.  It is in the book and I have read it.  It is at page C5.  I thank my learned friend.  There is a reference in paragraph 13 there to the announcement.  I do not think we have the actual announcement but that describes in perhaps rather uninformative terms what was to be done to strengthen and enhance the process, to create the process that ‑ ‑ ‑

FRENCH CJ:   Is that scrutiny by the Immigration Ombudsman a statutory process?

MR MCLEISH:   I will have to come back to that question, your Honour.  I am not sure of the answer to that.  I just mention page 209 of the guidelines which makes it explicit not only - at the bottom of the page – that independent reviewers may be guided by various sections of the Act:  sections 36, 91R to 91U and Australian case law.  Again, as I said, they may be useful as an aid.  In volume 1 in M69 there is some evidence about the way in which the scheme has worked in practice.  Firstly, there is the affidavit of Garry Fleming, first assistant secretary of the ‑ ‑ ‑

FRENCH CJ:   Just before you leave that last paragraph, on the process that we have been shown by Ms Mortimer there does not seem to be any scope for, as it were, departmental second‑guessing of the independent reviewer’s positive determination or, for that matter, that of the RSA process.  So that if, for example, a more generous approach to well‑founded fear of persecution than that permitted by 91R and the others were adopted there does not seem to be any process under which there would be an intervention about that.

MR MCLEISH:   No, and the evidence I am about to take your Honour to will show that there is not any intervention, that it is explicitly left to the reviewer.  So Mr Fleming’s affidavit – he is a first assistant secretary in the Department – starts at page 223 of volume 1.  Firstly at page 224 and following he talks about the records that have been kept of the process since October 2008.

HEYDON J:   I am having a bit of trouble following this.  Did you say page 224 of volume 1?

MR MCLEISH:   Of volume 1 in M69.

FRENCH CJ:   I think we only have one volume.

MR MCLEISH:   We lay claim to a joint interest in volume 2, your Honour.  But yes, there is only one called M69.  But the evidence in volume 2 is evidence in both cases, as we understand it.  That is the Metcalfe affidavit.  So at page 224, Mr Fleming says that:

Between October 2008 to 25 June 2010 there have been 4210 requests for RSAs made by offshore persons. 

That figure does not include certain people who arrived after 9 April with whom we are not concerned.  Paragraph 7 says 2326 of those persons who have found to have met the definition.  Then it says at the end of that paragraph:

The Minister exercised his power under s 46A(2) in each of those cases.

Then 733 were assessed as not meeting the definition.  Of those 459 requested independent merits review and the bulk of those have not yet been finalised, but 179 merits reviews have been completed and 77 resulted in recommendations, as is described, that a person be recognised as a refugee, 30 of those were referred to the Minister and the Minister exercised his power in each case, 47 are still undergoing security and health checks, and Ms Mortimer made reference to that in the letter which the Court was taken to before lunch, they are yet to be referred to the Minister.  Then 102 cases the person was recommended not to be recognised in paragraph 7.2.1.3 and then 274 people have not yet sought review.

HAYNE J:   Do you invite us to conclude that, from the evidence at 225, the enhanced RSA process undertaken since 29 July 2008 is a process in which a recommendation is not made to the Minister in a case having an outcome favourable to the applicant until health and security checks have been concluded?  That seems to follow.

MR McLEISH:   It does not actually say that in relation to the 2326 people in paragraph 7.1.

HAYNE J:   But it does in respect of the 77 persons mentioned at 225; 30 were referred, 47 were still undergoing security and health checks and are yet to be referred.  Is it open to us to conclude that reference is not made until not only refugee status is determined, but also security and health?

MR McLEISH:   Probably not open to conclude in every case, your Honour.  It is really silent as to whether there are some occasions when it is and some when it is not.  I think the letter that your Honour was taken to before lunch showed that security and health checks had been completed before a reference was made.  We would accept the more likely inference is that that would be what would have happened. 

HAYNE J:   A possible interpretation of that is that the RSA process fits into a scheme of administration, if I can use that as an entirely neutral term, in which what goes to the Minister is a concluded set of inquiries about whether someone should be given a visa.

MR McLEISH:   Yes, we submit that is correct, your Honour.

HAYNE J:   That may reflect back on where the RSA process fits in the Act and, in particular, where it fits in connection with 46A.

MR McLEISH:   Yes, your Honour.  There is a figure, which is difficult to read, at the top of page 226 which we think – I am not sure that my arithmetic is correct – there are persons there who “are undergoing further processing prior to referral to the Minister” and that does seem to bear out what your Honour said.  It is perhaps unclear.  They have either not had their assessments finalised or are undergoing further processing.  Then in 7.4 it is made clear that:

Save for two cases referred in error no case has been referred to the Minister for consideration of the exercise of his power under s 46A(2) of the Act without a recommendation having been made at either the first stage of the RSA process or following the IMR that an offshore entry person be recognised as a refugee.

Indeed, in 7.5:

Save for two cases referred to in paragraph 7.4 above, the Minister has not exercised his power under s 46A(2) of the Act in any case in the absence of a recommendation –

In other words, the making of a recommendation is a precondition under this scheme for the matter before the question getting to the Minister at all, and the decisions bear on the person’s interest in having the bar lifted and applying for a visa in that very direct way as a result.  Mr Fleming goes on at paragraph 11 to describe what happens to these things that care called recommendations by the independent reviewers.  He says:

Once Independent Reviewers provide their report to the Department their role in the IMR process has concluded.  They are required to return to the Department all documents provided to them in relation to the subject of the IMR as well as any equipment provided.

Paragraph 12:

For operational reasons, including quality assurance and client management concerns, recommendations by Independent Reviewers may not immediately be notified to clients.

Now, we say there is something incongruous in calling it a recommendation if it is still just that when it is notified to a client, and the rest of the evidence we submit shows that what is classed as a recommendation turns into something determinative on its way to the client.  That is explained in the affidavit of Malissa Dryden in the same book commencing at page 300, an acting assistant secretary in the Department.  She goes into more detail about the quality assurance process starting at page 304.  In paragraph 18 she describes how the assistant secretary:

instituted a process by which IMR recommendations would be subject to a quality assurance check before an offshore entry person would be notified of the outcome . . . 

19.      The quality assurance check is confined to an examination of the reasons that have been prepared for an IMR recommendation.  It does not involve any review of any of the primary documents or submissions that are considered by an independent reviewer in making a recommendation.  Further, the quality assurance check is separate from the capacity of independent merits reviewers to seek legal advice from the Refugee Review Tribunal if that is required.

20.      Both positive and negative IMR recommendations are subject to quality assurance checking.

21.      In establishing the quality assurance process, the Department was aware of the need to preserve the independence of the reviewers who undertake the IMR process.  Accordingly, care is taken not to trespass upon the conclusions reached by independent reviewers in any particular case.  The quality assurance process primarily involves checking IMR recommendations for spelling, grammatical, cut and paste or other obvious errors.  At its highest, the process may result in a suggestion being made to an independent reviewer that he or she may wish to consider an additional matter, consider more up to date country information, or clarify parts of a decision‑record or recommendation.

Then paragraph 22, comments are “conveyed informally” and at the top of page 305:

Independent reviewers are free to disregard any such comments.  The Department has never suggested, let alone requested, that an independent reviewer should alter his or her recommendation as a result of the of the quality assurance process.

HEYDON J:   To what submission are these materials going?

MR MCLEISH:   They are going to the status of the decision of the independent merits reviewer, your Honour.  That is that, although it is described as a recommendation the Commonwealth adopts it as determinative of refugee status subject only to matters of quality assurance, so that the decision is actually a determination of status and not merely a recommendation to somebody who will then decide whether or not to accept it.  In the case of M69 the process ends with the communication of the decision of the independent merits reviewer to the applicant.  That is at page 51 of volume 1.  There, an officer of the Department, Ms Harrison, wrote a letter saying: 

I am writing to inform you that following careful consideration of all available information, the independent reviewer is not satisfied that you are owed protection obligations –

This immediately leads to:

The Department will now start making arrangements for your return to Sri Lanka. 

So that letter is the evidence of the adoption in this case of the decision of the independent merits reviewer.

CRENNAN J:   I think you treat the date of the notification of the independent reviewer’s decision as the date of the – what I think you call a constructive refusal of the Minister to exercise the power under section 46A.

MR McLEISH:   Yes, your Honour.

CRENNAN J:   So you do not conceive of the Minister having made what you might call a proleptic decision about what he might do in these circumstances, when he first gives instructions to start the process?

MR McLEISH:   No, but the announcement of the taking the steps for removal we do take as the Minister’s constructive refusal.  The request to the Minister appears at page 90 of the book in the statutory declaration of the plaintiff.  In the first paragraph there he requests:

refugee protection under the Refugee Status Assessment process.  I also respectively request that the Minister for Immigration allow me to apply for a Protection Visa in Australia.

So we say that request which was made at the outset of the process was constructively refused when Ms Harrison’s letter was sent.  That is correct, your Honour.

In summary, we submit that the evidence shows that the purpose of conducting the refugee status assessments is to inform the exercise of the Minister’s powers under section 46A.  If there is a positive assessment, the Minister invariably lifts the bar and a protection visa is almost certain to be granted.  Unless there is a positive assessment, the Minister will not consider whether to lift the bar and the person will be liable to removal.  Therefore, the making of the refugee status assessment either at first instance or on review affects the person’s ability to apply for a protection visa.  Those are the interests, we say, that are affected by the making of these decisions. 

The third part of our argument is about the authority of the decision‑makers themselves.  The first decision‑maker in M69 was Ms Taylor.  She was an employee of the Department, I will not take the Court to it, but that appears in paragraphs 14 and 15 of Mr Metcalfe’s affidavit.  She was clearly, we submit, exercising executive power in making the refugee status assessment in accordance with her duties under the Public Service Act. 

Ms Zelinka, who was the independent merits reviewer in this case, was appointed by the Minister to a body called the Refugee Status Assessment Review Panel.  I have taken the Court to the reference to that panel at the beginning of the guidelines.  The fact that the appointment was by the Minster appears at page 164.  I will not take the Court to that, but it is in volume 2 in the procedures manual itself.  Perhaps I should take the Court to it.  At C164 at about line 15, the manual says:

A non-statutory advisory body called the ‘Refugee Status Assessment Review Panel’ has been established for the purpose of conducting independent merits review for claimants who have received negative RSA outcomes.  The Minister has appointed a number of Independent Reviewers in addition to a Senior Independent Reviewer to this panel. 

Ms Zelinka was also named as an independent reviewer in the contract between the Commonwealth and the service provider, Wizard People.  All the independent reviewers are named and, as such, have the imprimatur of the Commonwealth.  They are not merely bodies provided by Wizard People.  That appears at page C98.  In addition, her task was governed by the guidelines that the Court has been taken to that were published by the Commonwealth and we say that these factors suffice to make Ms Zelinka an officer of the Commonwealth exercising executive power in deciding on behalf of the Commonwealth whether or not applicants for independent merits review were, in fact, owed protection obligations.

GUMMOW J:   Where do you deal with this in your written submissions, Mr McLeish?  It is a rather important submission about the word “officer” ? is it not, 75(v)?

MR McLEISH:   We deal with this starting at paragraph 39 on page 8, the more particular aspects of Ms Zelinka’s circumstances starting at paragraph 44.

GUMMOW J:   No, that is all about the facts designed to demonstrate a constitutional fact, namely, that these people are officers within the meaning of 75(v).

MR McLEISH:   We point to her appointment to the panel by the Minister.

FRENCH CJ:   But your argument is at 45 and there on, is it not?

MR McLEISH:   Yes, it is at 45.  It is also in the reply.

GUMMOW J:   There is no reason in principle, why not?

MR McLEISH:   Well, that is part of it, your Honour.

GUMMOW J:   That does not usually move us very far.

MR McLEISH:   Well, given the existence of an office and the description of the Commonwealth of the guidelines by which she was to perform that task and the fact that the outcome of that process was a determination to be relied on by the Commonwealth and adopted by it, we say that it is not a long step.

GUMMOW J:   An officer is a person who holds an office, I suppose.  What is the office?

MR McLEISH:   The office is membership of the panel appointed by the Minister.

HEYDON J:   Your reply paragraphs 9 to 11. 

MR McLEISH:   That is right, your Honour.  Our alternative submission is that in any event we have already taken the Court to - the Commonwealth adopted Ms Zelinka’s decision without any further evaluation.  What we say is that it follows that both of the decisions of the first assessor and the reviewer were made in the execution of section 46A.  We say that is because they were made for the purpose of informing the Minister’s exercise or non‑exercise of the power in section 46A and that that amounts to a decision made in the exercise of section 46A.

FRENCH CJ:   In characterising her as an officer, does one look to the function rather than the employment arrangements?

MR McLEISH:   One does, your Honour, and to the existence of the panel.  The employment arrangements, we say, do not take the matter very far because only someone appointed by the Minister to the panel can be subject to those arrangements and someone expressly included in the contract by the Commonwealth as well.  Both of those factors point to the involvement of the Commonwealth in the selection of the person to conduct the review.

GUMMOW J:   What are the terms of this constitution of the person as an officer?

MR McLEISH:   I am sorry, I missed the question, your Honour.

GUMMOW J:   You say the Minister made appointments to these offices.  What were the terms of the appointments?

MR McLEISH:   We say that the only terms we are aware of are the terms of the guidelines themselves, that assessments will be conducted under those guidelines when cases are assigned.  There are materials in the books about terms of payment and so on.  I do not want to take the Court’s time with those.  I note the time.

FRENCH CJ:   Yes, that might be a convenient moment, Mr McLeish.  We will adjourn until 10.15 tomorrow morning.

AT 4.17 PM THE MATTER WAS ADJOURNED
UNTIL WEDNESDAY, 25 AUGUST 2010