Plaintiff M64/2015 v Minister for Immigration and Border Protection

[2015] HCATrans 287

[2015] HCATrans 287

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne   No M64 of 2015

B e t w e e n -

PLAINTIFF M64/2015

Plaintiff

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Defendant

FRENCH CJ
BELL J
GAGELER J
KEANE J
GORDON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 6 NOVEMBER 2015, AT 9.59 AM

Copyright in the High Court of Australia

MR C.J. HORAN:   May it please the Court, I appear with MS K.E. GRINBERG, for the plaintiff.  (instructed by Russell Kennedy Pty Ltd)

MR S.P. DONAGHUE, QC:   May it please the Court, I appear with MR N.M. WOOD, for the defendant.  (instructed by Australian Government Solicitor)

FRENCH CJ:   Yes, Mr Horan.

MR HORAN:   If the Court pleases, the issues raised by the special case fall into two main areas.  The first concerns the operation of the government policy concerning what are called “priorities” within the Special Humanitarian Programme, and the second is the application of that policy and those priorities by the delegate in making the decision to refuse the particular visa application that is the subject of this present proceeding.  The plaintiff submits that the policy either operated or was applied so as to foreclose a proper consideration by the delegate of the compelling reasons criterion, and that is the question whether there were compelling reasons for giving special consideration to the grant of visas in the circumstances of this particular application.  Associated to that general submission, the plaintiff submits that this led to associated errors in that the delegate misconstrued the relevant criterion which is in clause 202.222(2) and also took into account irrelevant considerations.

Now, I thought I would commence by briefly identifying the applicable regulations.  The visa application in this case is sometimes referred to as a split family application which in broad terms is a means by which a holder of a protection visa or other visas in Australia ‑ who is in Australia can propose members of his or her immediate family for entry into Australia, and these applications are not required to satisfy the ordinary time of application requirement under clause 202.211(1)(a) whereby an applicant must be “subject to substantial discrimination, amounting to gross violation of human rights” in his or her home country

So, in other words, historically the split family application is an alternative basis on which to obtain a special humanitarian visa which depends on family reunion and the strength of connection that that gives, rather than on the existence of discrimination or persecution in the home country, which is not to say that the existence of discrimination and persecution is not present or not relevant, but it is not a time of application requirement.  The split family applications were the subject of this Court’s decision in Shahi and at paragraphs 12 to 13 the Court there identifies the alternative nature of split family applications as opposed to claims‑based applications for humanitarian visas.

In the present case, it is accepted that the existence and degree of discrimination faced by the visa applicants is now relevant because it is one of the factors that goes to the application of the compelling reasons criterion in subclause (2) of clause 202.222 which is a time of decision criterion.  I will turn now to address the history of that clause.

There is some slight complexity in identifying the version of that clause that is applicable in this case, and that is due in part to the length of time taken to decide this application, and also to the fact that during that time there were numerous changes made to the regulations, some of which applied to pending applications and some of which did not.  But the history is set out in detail in paragraphs 11 to 16 of the plaintiff’s written submissions so I refer the Court to those details.  But, for present purposes, it is sufficient to note that as a result of amendments to the regulations which took effect on 22 March 2014, the applicants were required to satisfy what may be described as the four factor compelling reasons criterion.

If the Court has the plaintiff’s written submissions, the relevant provisions are set out in the annexure to those submissions.  The starting point is the form of the relevant compelling reasons criterion at the time of application which is at page 8 of the attachment.  This is taken from a compilation of the regulations as at 5 November 2011 which immediately precedes the date on which the application was made.  That sets out what has become the criterion that governs this application but it did have a change in history over the course of the period of application which I will need to identify.

This clause - the Court will see that at the time of application there were no subclauses in clause 202.222. Subclause (2) was introduced by amendments in September 2012 and they appear at pages 17 and 18 of the attachment and these are taken from the Migration Amendment Regulation 2012 (No 5) and effectively, if the Court needs to identify the form of the criterion applicable to this application, it is the form on page 18, however, subject to one qualification or caveat, that there was an error made by the drafters in framing clause (2) because it referred to the “degree of persecution” in paragraphs (a) and (c) and not discrimination, which is the correct concept in the context of this subclass of visa. So the drafters, at page 24 of the attachment, corrected that by substituting “discrimination”. So, subject to that change, that subclause is the applicable version.

The current version of the subclause – there was a further amendment, which actually predated the date of decision, but it was not applicable to pending applications.  That is addressed in the written submissions but, essentially, that changed the language in paragraph (d) from “persons such as the applicant in Australia” to “the applicant in Australia.”  It is not suggested that that change applies to this case.

GAGELER J:   Mr Horan, I am getting a little confused.  Can we look at one version for the purposes of this hearing?

MR HORAN:   Yes.

GAGELER J:   Which is it?

MR HORAN:   It is the one at page 18, but subject to that correction of “persecution” to “discrimination”.  It is effectively in the same terms as the one that applied at the date of application, but it has been turned into subclause (2).  The only reason, your Honour, that I am not taking the Court to the shortest and easiest route of subclause (2) as it applied at the date of decision is because it had been amended but the transitional provisions did not apply that amendment to this application.

GORDON J:   What is the point to be drawn from this history?

MR HORAN:   The significant point is that the four‑factor criterion was introduced in March 2014.  Prior to that time there had been, for split family applications of the nature of this application, a single‑factor criterion, which is the one at subclause 1.  That is at page 17 of the attachment and that single‑factor criterion only had regard to the extent of connection with Australia and did not require consideration of humanitarian claims.  So the change that was brought about or one significant change in March 2014 was to apply the four‑factor criterion to this application and that is what led to the applicants having to put in information to show humanitarian claims directed to demonstrating compelling reasons.

FRENCH CJ:   We are ultimately concerned, are we not, with the interface between factor (d) and the priority policy and the numerical allocation within the framework of that policy?

MR HORAN:   Yes, I think that the parties – I think it is common ground that the policy applies not just to factor (d), although it has a particular relevance to the question of capacity, but the policy is applicable to the application of the compelling reasons requirement generally ‑ ‑ ‑

FRENCH CJ:   Generally.  All right, I understand.

MR HORAN:   ‑ ‑ ‑ and to the disposition of applications generally.  But the broad submission made by the applicant is that the policy impermissibly subjugated a category of applicants so that they were treated differently in the application of compelling reasons – the compelling reasons criterion – in a way that did not have any relationship to the mandatory factors which a decision‑maker has to take into account, and in fact ‑ ‑ ‑

FRENCH CJ:   Well, the compelling reasons criterion is ultimately highly evaluative.

MR HORAN:   It is, but we do not dispute that.  In fact, we rely on that to say that for that reason, that evaluative subjective judgment needs to be made by the decision‑maker who is tasked with the responsibility of making the decision.  It highlights the dangers and difficulties of a delegate in that situation abdicating that function by reference to broad policy guidelines which treat one category of applicant differently to another category, and ‑ ‑ ‑

KEANE J:   How can this work otherwise than by approaching the question as whether there are compelling reasons for giving special consideration to an applicant?  That necessarily means identifying someone as special compared to someone else – compared to the general run of applicants, does it not?

MR HORAN:   It does.

KEANE J:   It necessarily involves doing something like that and then the question is, are the criteria whereby one does that reasonable and relevant or something?

MR HORAN:   Yes.  We say it does require looking at the circumstances of each case to determine whether one case is more compelling and deserves special consideration, but that needs to be done, firstly, on the facts of that individual case, not by reference to a broad classification of applications ‑ ‑ ‑

KEANE J:   But if you have the generality of applications – and we are necessarily assuming that, are we not; you have to, because there is a chunk of humanitarian visas to be allocated.  Is that right?

MR HORAN:   We do not necessarily accept that as an absolute premise, but there is a decision made by the government as to the size of the humanitarian program, as, I think, there are decisions in relation to the overall size of the migration program generally.  Not everybody who applies can be granted a Subclass 202 visa.  It is only those applications which demonstrate compelling reasons for giving special consideration.

That is an important function conferred on the decision‑maker in each case to look at whether the circumstances of that case are compelling, but not only that, the criterion directs the decision‑maker as to what must be taken into account in sorting the applications into those that are compelling and those that are not. 

It must be done by reference to those four factors, and at the heart of one strand of the plaintiff’s submissions is the argument that the policy here – and in particular, the lowest priority category, which is what we are concerned with – does not have anything to do with compelling reasons having regard to those four factors, because it is defined by reference not to a characteristic of the applicants in a direct sense, but by reason of characteristics of their proposer, which have nothing to do with the degree of discrimination, have nothing to do with the strength of connection to Australia, have nothing to do with available resettlement countries.  Insofar as they have something to do with capacity ‑ ‑ ‑

KEANE J:   Is that right, though, in relation to criterion (b)?  Is it not relevant to the extent of the connection of the family, who are the applicants – their connection with Australia arises because of the arrival here of an unaccompanied minor?

MR HORAN:   Their relationship to someone who is here on a permanent visa is relevant insofar as one might distinguish between immediate family, from close family, from distant relatives, for example.  The manner in which the proposer arrived in Australia, we say, is not legitimately relevant to the strength of connection to Australia if that person is here on holding a permanent visa.

Historically, split family applications have been based on strength of connection through membership of the immediate family of somebody here in Australia.  This policy seeks to discount those factors in respect of one defined category of applicant.  So, we say, that that is not consistent with a consideration in the individual case of whether or not there are compelling reasons for a particular applicant after taking into account each of the four factors.

GAGELER J:   Where do we find the policy most clearly crystallised?

MR HORAN:   It is set out at paragraph 18 of the special case – the actual priorities.  The underlying documents – the two clearest statements of the policy are at pages 131 to 132 of the special case book and in particular at page 132 – this is in a frequently‑asked questions leaflet – there is a question:  what are the new processing priorities?  The other place which is relevant, from the point of view of the delegate making the decision, is the policy guidelines in the PAM manual.  That is at court book 150 which again sets out the five categories. 

The previous position, to the extent relevant, I would note in passing at court book 209 there is a reference in the middle of the page.  This is a letter from the Department in June 2012 which predates the changes in the introduction to the processing priorities.  At about line 27 of that page, the Department states that at that time:

All visa applications proposed under the ‘split family’ provision are given the highest priority when assessed under the Special Humanitarian Program.

GORDON J:   Mr Horan, do you also rely on what appears in the special case book at pages 136, and following, which is that – I understood that, especially on page 138, there was the background to the compelling reasons criterion and, more importantly, that it then went through the factors.  Is that not part of the policy?

MR HORAN:   That would be part of the policy that is relevant to the delegate’s decision.  That section of the policy guidelines does not itself set out the five category priorities.

GORDON J:   I think it does because under 71.4, does it not tell you on page 139 in the second sentence, that you have to go to 7.2, the prioritising?

MR HORAN:   Yes.  That is correct, your Honour.  It is a combination of the guidelines on the Class XB specific criteria and, in particular, the compelling reasons criterion with the policy on caseload management and priorities which is at court book 150.

GORDON J:   As I understood your submission, it is that, having identified this as the priorities, one of your principal submissions is that this is inconsistent with the Act.

MR HORAN:   Or with the regulations.

GORDON J:   How is it inconsistent?

MR HORAN:   It is inconsistent with the regulations in the manner in which I was seeking to explain in answer to Justice Keane’s question that the lowest priority category, priority 5, is defined as an application by the holder of a protection visa relevantly, regardless of the relationship, and so those applications are put lower in the pile or the line of applications solely because their proposer holds a particular type of visa.

That is regardless of the relationship between the applicants and the proposer so even if it is, for example, a stronger, closer relationship than those in priority 4, that will not enable them to be given priority and even if they have a stronger degree of discrimination or persecution in the home country, they still go to the bottom of the pile.  So that somebody who faces severe persecution or discrimination and is an immediate family member of their proposer will be deprioritised in favour of applications, including priority 4, applications proposed by a friend or distant relative who holds any other type of visa.

So we say that is inconsistent, in answer to your Honour Justice Gordon’s question, because the compelling reasons criterion firstly requires the decision‑maker, the delegate, to conduct his or her own subjective evaluation of whether this individual case is compelling and special, and this attempts to override or subjugate that assessment.  But secondly, it does so in a manner that at least potentially cuts across or conflicts with the mandatory considerations in subclause (2), namely, degree of persecution or degree of discrimination and strength of connection to Australia.

Now, accepting, as your Honour Justice Keane points out, that it may be arguable that the manner in which someone arrived in Australia has some potential relevance to connection if the reasoning be adopted that a person who arrived here by regular means, to use a shorthand, as an offshore humanitarian applicant, has a stronger connection to Australia than somebody who arrived here by irregular means, we would say that that in itself is a contestable proposition but, even if it is relevant, it is only one of the relevant factors along with the actual nature of the family relationship.

The person who is a friend of someone in Australia has a much weaker connection to Australia than a parent of a minor who is in Australia and what this policy does is say that an application by a parent of a minor, who is in Australia, holding a protection visa, should be put behind an application by a friend of somebody on another visa in Australia and ‑ ‑ ‑

FRENCH CJ:   Do you accept that the four factors are not exhaustive of what might inform the judgment as to whether there are compelling reasons?

MR HORAN:   I think that is probably correct, that they are mandatory but not to the exclusion of other permissible considerations.

FRENCH CJ:   Given the rather indeterminate nature of the term “compelling”, is there any reason why that assessment cannot validly be informed by reference to a government policy?

MR HORAN:   We do not say that government policy cannot be taken into account.

FRENCH CJ:   Including giving priority to particular classes of person.

MR HORAN:   Well, where, for example, it might be ‑ at the one level one has the government policy which is the one on which the defendants rely which is a reasonably transparent policy as to the size and composition of the humanitarian program which is formulated after a consultative process. 

Now, that policy clearly is something that would be legitimately taken into account in determining whether there are compelling reasons but it must be done so on an equal footing.  So, it might affect how compelling a case might be if there is 40,000 applicants and only 5,000 is the target to grant, then you adjust up or down how compelling the cases might be.

In relation to the mandatory factors, it might affect how, what degree of discrimination should be demonstrated, what extent of connection, so in that sense it is relevant to take into account policy.  But what this policy that is really is at the heart of the decision in this case does is not simply look in a general sense at the size and composition of the program but it looks at this accompanying ministerial policy of priorities, which was not subject to the same ‑ ‑ ‑

FRENCH CJ:   Yes, I understand that, but I am just asking why cannot that inform the rather broad concept of “compelling”?

MR HORAN:   Well, for two reasons.

FRENCH CJ:   I mean, the delegate has to have some hooks upon which to hang judgments and obviously there are some specified here, but I do not quite understand why a policy allocating priorities, saying that these are, in the view of the government, more deserving than others and, therefore, this priority should be accorded, why that is inconsistent with the regulation.

MR HORAN:   Mainly because, putting to one side the inflexibility point, which I will come to later, the main inconsistency is because it cuts across the mandatory factors which strongly suggest a legislative intention that the degree of discrimination or the extent of connection is relevant to “compelling”.  To take one example, which is not quite this case, but ‑ ‑ ‑

FRENCH CJ:   Well, let us suppose you have two people, each of whom answers with equal merit, if you like, in favour of a grant, the four factors but one is in priority class 1 and the other is in priority class 5.  Why should that not be a discrimen?

MR HORAN:   Well, that might be a basis on which to differentiate between those applications, all other things being equal, but that is not what this policy does.  It takes cases that are not equal, and the example I was going to give was, if a delegate were to reason, I have to look at the degree of discrimination and the extent of connection and I find that this applicant has a stronger – if the delegate were to reason, this case is compelling because the applicants have a weaker connection to Australia and it is compelling because they have no claim of discrimination.

Now, one would that has legitimately had regard to the two factors, but it has done it in a way that is perversely inconsistent with the obvious intent of those factors, which is when the regulation refers to the degree of discrimination it is referring to a scale whereby a case is more compelling if there is a higher degree.  So that if a policy then says, regardless of relationship or connection to Australia, and regardless of degree of discrimination, these cases are lowest priority because they are proposed by the holder of a protection visa, that is running counter to the clear intent of the mandatory factors.

So, even if there is scope to take into account other considerations that are permissible, the respect or effect has to be given to the four mandatory relevant considerations, and one cannot invert them or stand them on their head so as to disadvantage someone with a stronger or more compelling case when you look at the fact there is (a), (b), and (c), and even (d), because, on our construction of paragraph (d) – which I will have to come to – it is not directed at outer limit capacity, it is directed at individual capacity to resettle a particular applicant.

So, it might even invert that in that somebody who has a strong support network already in Australia again can be subjugated in the order of priorities.  The first aspect of inconsistency is the manner in which this potentially and actually, in fact, cuts across the intent of the mandatory factors, which is to tell the decision‑maker that a case is more compelling and more special if these factors are present.  The policy disregards those factors and proceeds on the basis that the visa held by the proposer is the primary determinative factor of the priority of this application.

GORDON J:   Can I just ask one question about that issue?  On page 134 of the policy, when dealing with IMAs, it seems as though it is not the actual decision‑making which gives rise to this question, but they do not even look at the applications.  It says:

If you arrived as an IMA and you hold a permanent visa, your family members will also receive lowest processing priority ‑

Does that assist you, or is that against you?

MR HORAN:   Well, I think – I might have to stand corrected on this – but that is dealing with the family stream which is ‑ ‑ ‑

GORDON J:   I see.

MR HORAN:   I think it is really saying the same thing will happen in the family stream, which is the migration program, rather than the ‑ ‑ ‑

GORDON J:   I understand that.  My point is more basic – is it that they do not even look at them?

MR HORAN:   Correct.

GORDON J:   The applications are not looked at, rather than the application is considered, but prioritised by way of lowest priority.  It is a very different question.

MR HORAN:   Well, it depends – there are aspects of the policy, especially the PAM guidelines, which do acknowledge that a case in priority 5 can still be compelling.  Now, we have relied in our written submissions on the submission to the Minister as revealing or disclosing the true intent of the policy in that it makes the same point but attaches a higher bar or threshold to those circumstances, so that it is in a small number of cases that are highly compelling or exceptional will be granted. 

But there are two issues that arise there.  One is, is the policy one that, before even looking at the individual facts, has already applied a prism to the priority so that it does not mean that this is the endpoint, but the delegate starts by saying what category is this in and then that affects all other assessment of the individual circumstances, or, in this case, as we say in our other ground of review, that in fact the delegate did not look at anything else in deciding the reason why this should be refused.

GAGELER J:   Mr Horan, if we can just stay with the policy for a moment, I think I understand the point that you say, that the policy disregards the four mandatory relevant considerations and treats the visa category as the primary determinative character.  Is there anything else you say about the policy?  Is that the point?

MR HORAN:   That is the principle point, your Honour.

GAGELER J:   Is there something more?

MR HORAN:   The only other aspect is that it regulates, narrows, structures what should be a subjective evaluative judgment of the individual decision‑maker.

GAGELER J:   Well, what is wrong with that?

MR HORAN:   There may be nothing wrong with it if all it does is guide and not control, but the intent of the policy, we say, is to do more than that.  That point merges into the inflexible application ground, which is really a separate ground.  The way the application is framed is, the first question is, is this policy consistent with the Act and regulations?  If not, then it is irrelevant, and that is an error.  Even if it is consistent and legitimate to have a policy of this type, it must be subject to exceptions and consideration in an individual case, and that was not done.  It may be that that second aspect relates more to that ground.

GAGELER J:   Relates to the application rather than the content of the policy?

MR HORAN:   Correct, your Honour, yes.  I should say before leaving the policy that in various places, including the two places to which the Court has been taken, the policy, as we have said in our written submissions, is somewhat of a misnomer to be characterised as a “processing priority”.  In each of the places, at court book 132 and 150, the policy purports to structure the order in which applications will proceed.  That is more consistent with what was the old approach to processing priorities, which was that split family applications will be given priority, but you have to wait until the point is reached where ‑ ‑ ‑

FRENCH CJ:   Well, the delegate starts by sorting the files into five piles.

MR HORAN:   Even before the processing priorities were taken into account, there might be some prioritisation in which applications were considered, and at what rate.  Some applications might be refused quite quickly, if there was a clear failure to meet their criteria, but if they were otherwise a green light on, for example, the old compelling reasons’ single factor – which most split family applications were – then they would sit in a holding pattern until processed.  That is why all of these letters referred to lengthy processing times, because one had to wait for some time.

I think the Court in Shahi was mildly critical of a period of nine months between application and decision.  In cases like this, the period is much longer; it is three, four, five years.  The reason for that is because of the government decision as to the size of the program, but not in a way that leads to refusal of applications; it just leads to an orderly processing, and the order in which applications are processed may be influenced by government priorities.

I think section 51 of the Migration Act recognises the Minister has the ability to deal with applications in any order he sees fit.  This purports in this policy to be speaking to that discourse.  We are going to divide the applications into five piles and I am going to deal with this pile first.  And if that were the case, then priority 5 would not even be reached, so we would not have a refusal decision.  We would simply not have been processed.

But it is quite clear that the substantive change that this brought about was intended to bring on applications in the backlog and apply a guillotine, if you like, so that the priorities became not processing priorities but grant priorities or compelling reasons priorities.  In that way, everyone was, after waiting for several years for some part of that period having been on the face of the regulations, entitled to concessional treatment under compelling reasons, and then, all of a sudden, there is a change whereby the concession is removed and all the applications are going to be quickly determined and the priorities that are applied are not processing, strictly.  They are substantive priorities so they are taken into account in working out which cases are compelling.  That is a very significant change.

GAGELER J:   Where does it go in your argument?  What point does it go to?

MR HORAN:   It goes to whether or not the policy is consistent with the regulations.  If it was simply a processing priority, then it may, subject to the reasonable time limitation on determining an application, it would not lead to any difficulty ‑ ‑ ‑

FRENCH CJ:   It would fit under 51, I suppose.

MR HORAN:   Yes, and I think in Shahi there was a recognition that outside protection visa applications, where there is a statutory time limit, there is a reasonable time limit for processing of other visa applications.

GAGELER J:   Is this another point?

MR HORAN:   No, but in answer to your Honour’s question, all it goes to is that it shows this is not a processing priority, it is a priority of grant and a priority of what cases are regarded as satisfying the compelling reasons criterion.  What that means is that it leads directly to the inconsistency argument because it means that these categories are not simply order of processing, they are attempting to impose substantive restrictions on the criteria for a grant or a refusal.  So that binary decision is now altered because a delegate says, “Well, I might otherwise have regarded this case as compelling, but I’m not now because I’ve been told this case is to be deprioritised and, instead, I’m going to grant a visa to a priority 4 case or a priority 2 case”.  We say that that changes the nature of the compelling reasons assessment in a way that the regulations do not contemplate.

GAGELER J:   Mr Horan, could I ask you some questions about the construction of the criterion set out in the regulations?

MR HORAN:   Yes.

GAGELER J:   The four paragraphs set out what you say are mandatory – although not exhaustive – relevant considerations.  Is each of those paragraphs for the evaluative judgment of the Minister or the delegate?

MR HORAN:   Yes.  They do involve some evaluation but also, potentially, some fact finding which would be not necessarily evaluative.

GAGELER J:   By the Minister or the delegate.

MR HORAN:   Yes.

GAGELER J:   We are not concerned with a Malaysian solution kind of scenario.

MR HORAN:   I do want to emphasise that there is a distinction between the Minister and the delegate in that the delegate is exercising an independent power.  So, it is not something where the delegate can say, these policies come from the Minister.

GAGELER J:   I follow that, the decision‑maker.

MR HORAN:   Yes.

GAGELER J:   The decision‑maker has to make the evaluation in each of (a), (b), (c) and (d) and then make an overall evaluation as to the compelling reasons.  Is that the way it works?

MR HORAN:   Yes, correct.

GAGELER J:   Is it up to the decision‑maker, then, to make an evaluation as to who falls within the category of persons such as the applicant for the purpose of paragraph (d)?

MR HORAN:   Yes, but provided it is consistent with the meaning, the proper meaning, of the paragraph.  The plaintiff submits that it cannot – one cannot substitute all applicants so there has to be some subclass identified rather than simply saying, as the defendants seek to say, it is looking at capacity in an overall sense.

We have set out in our reply the three reasons why we say that that construction should be preferred and, in summary, there the language of the provision – the reference to “the applicant” – the context of the criterion being something directed to compelling reasons for giving special consideration which it bespeaks of individualised consideration.  Thirdly, although perhaps less strongly, the amendment that was made which has now substituted the word “the applicant” in a manner that I do not think the defendant would suggest has altered the operation of that paragraph so that it no longer covers overall capacity.

That last argument raises the vexed issue of the role of subsequent amendments in construing pre‑existing provisions but, in this case, it is not so much using the amendment to show that there was a change, it is looking at that amendment to demonstrate that there was, in fact, an equivalence in the two terms, more or less; that when using persons such as the applicant, paragraph (d) is still directed at the individual case, but it perhaps allows some generalisation so that there might be a feature, or characteristic, of the applicants which is selected to define a subclass.

FRENCH CJ:   The approach you say the delegate should have taken is that set out in paragraphs (b) and (c) of question 1 of the special case, at page 19?

MR HORAN:   Yes, your Honour, that is correct.

FRENCH CJ:   The error you attribute to the delegate was to do what is set out in (a)?

MR HORAN:   Yes, and I do not think there is any dispute that the delegate did have regard to what is set out in (a).

FRENCH CJ:   Yes.

MR HORAN:   The question is whether the delegate did so because that was his view that that is what the paragraph meant.  The defendant’s construction seems to suggest that that is what paragraph (d) means, so that would mean that the delegate is required to have regard to capacity to resettle all applicants.  But interestingly, both the policy in the PAM guidelines and the delegate and the defendant’s submissions do not suggest that it is not permissible to look at individualised factors going to capacity.  But there is no attempt to reconcile how that is done on their construction of paragraph (d). 

Presumably, it might be, as your Honour Chief Justice French suggested, in the penumbra of permissible relevant considerations but not mandatory.  But on the defendant’s construction, there would be no requirement to look at things like level of support and the like, even though the policy seems to assume that that is relevant to capacity, and the defendants do not suggest that it is irrelevant.  So that leads into our misconstruction ground, which is the subject of question 1 as your Honour has pointed out.  Now, I thought ‑ ‑ ‑

FRENCH CJ:   Sorry, just so I understand – question 3 sets out what you would say are irrelevant considerations.  Is that right?

MR HORAN:   Yes, that is correct.  So, the two that are identified – the first one is the premise that we say the delegate proceeded on, that there was a cap or quota or limit on visas that could be granted ‑ ‑ ‑

FRENCH CJ:   5,000.

MR HORAN:   When there was, in fact, no formal limit imposed under the very statutory mechanisms that are put in place to perform that function of controlling the flow of applications and the grant of visas.  The second, the paragraph (b) irrelevant consideration is directed to a threshold or intermediate question, which is exactly what the delegate meant when looking at the priorities, because there is a tension between the terms in which the delegate described the priorities and the capital “P” policy as to processing priorities which is in the documents to which the Court has been taken.

If I could just identify that – and it is a convenient time to also identify the aspects of the delegate’s reasoning on which we rely in our grounds of review.  At court book 261, which is the notification letter – large parts of this letter also appear in the case notes that are reproduced in the preceding attachment, but that case note also includes some other consideration and notes that do not make their way into the notification letter.  The relevant aspect in relation to priorities, starting at about line 27, is the paragraph addressing the other factors at (a), (b) and (c), so acknowledging the:

strong links to Australia –

consistent with this being a split family application; the absence of any –

suitable country available for resettlement –

and accepting a –

significant degree of discrimination –

I think in the case notes, there is an elaboration on that finding which does not accept there is necessarily persecution, but accepts a significant degree of discrimination.  Then, the balance of the decision purports to address paragraph (d), and the next sentence is the misconstruction point, where the delegate says that:

I have also considered that Australia does not have the capacity to resettle all applicants who apply for a humanitarian visa at this time.

The two aspects of that that do not reflect the regulations - one is there is a reference to “Australia” and not the “Australian community”, which, in the context of the policy that the delegate is purporting to apply, is quite an important distinction, and it also leads to our submission that the delegate completely overlooked or discounted, in the sense of not giving genuine consideration, to some critical material about community support for these applicants.  In part, that is perhaps proceeding from this misconstruction or false, incorrect premise that the relevant point was that Australia, rather than the Australian community, does not have the capacity to resettle all applicants, rather than persons such as the applicant.

KEANE J:   Do you say that “Australia” in the letter means the Australian Government?

MR HORAN:   It appears to be in certain contexts, including this one, that that seems to be what is intended.

KEANE J:   Just not simply ‑ ‑ ‑

MR HORAN:   Or the Australian polity.  It does not look at ‑ ‑ ‑

KEANE J:   The Australian polity is something different from the Australian community.

MR HORAN:   It may be in the sense of – when looking at resettlement of persons such as the applicant in the individual case, the community may have a different connotation to the Australian community as it might mean in the context of a character cancellation, for example.  We submit that paragraph (d) is looking very much at the practical aspects of support or capacity in the community for the particular applicants, perhaps not to the exclusion of broader considerations like public resources and the like. 

The main misconstruction that we identify is not just the substitution of “Australia” for “the Australian community”, but the emphasis on all applicants and not persons such as the applicant, which the defendant says is correct on a proper construction of the paragraph, but we join issue on that and say that that is not what the paragraph means.

There is then a discussion of the numbers, again looking at Australia rather than the community directly, and then the paragraph at line 37 commencing:

While most applicants have suffered some form of discrimination or persecution –

and I interpose there that that does not mean that most applicants have suffered a significant degree, as in this case –

the limited number of visas available and the high demand for them mean that only a small proportion of applicants can be successful.

Then the policies or the priorities are identified and described in this following paragraph in a way that is difficult to reconcile with the five category processing priorities because it looks at in some ways completely different matters, whether or not the persons were assessed as refugees by the UNHCR, which undoubtedly may be a relevant consideration but it does not appear to be something directly addressed in the processing priorities in any of the five categories.

Then, secondly, applicants who are proposed by very close family members under the SHP which is correct to a point that priority is given under categories 2, 3 and 4 to very close family members over extended family over friends and relatives, but what it does not recognise is that (d) priority is given to very close family of protection visa holders.

So when the delegate at the start of the following page refers to the government setting priorities within the Special Humanitarian Programme, one threshold question is whether or not that is dealing with the processing priorities categories at court book 150, or whether it is a reference back to two paragraphs earlier where the delegate summarises or paraphrases priorities in different terms, and the short point is that we say in question 2(b) that if it is the latter, then that was an irrelevant consideration because the delegate would have been looking at priorities which did not reflect the policy in the PAM.

There are cases in which it is not always the case that misconstruction of policy will give rise to a legal error, but in this case if the priorities have been so fundamentally misdescribed that would be a situation, we submit, where the delegate will have erred, and there is a case that is on the defendant’s list of authorities, Minister for Immigration v Gray (1994) 50 FCR 189 where the court says at page 208:

If a decision‑maker, not bound to apply policy, purports to apply it as a proper basis for disposing of the case at hand but misconstrues or misunderstands it so that what is applied is not the policy but something else, then there may be reviewable error.

Now, that is of course open‑ended and we say in this case there would be reviewable error.

KEANE J:   But you accept that the considerations referred to in the second‑last paragraph on 261 are relevant to the question?

MR HORAN:   They are relevant to the assessment of compelling reasons.

KEANE J:   They were not mandatory, but they were relevant?

MR HORAN:   We accept that the question whether someone has been assessed as a refugee by UNHCR and the closeness of the family relationship are both relevant to compelling reasons.  Assessment as an offshore refugee is perhaps more relevant to other subclasses in the refugee and humanitarian program but it is not incapable of applying to someone who applies for a SHP Subclass 202 visa.

FRENCH CJ:   Your complaint about the policy is really one complaint with various judicial review relevant labels, is it not?

MR HORAN:   Yes.

FRENCH CJ:   You say the policy is inconsistent with the Act and regulations - that is question 6(b).  You can also say it is an irrelevant consideration because it is inconsistent with the Act and regulations and then the question of inflexibility falls away because it should not have been considered at all.

MR HORAN:   That is correct.  Inflexibility is only reached if there is legitimate scope for a policy of this nature and then the question becomes, well, how should it be applied and how was it applied but the policy itself is what lies at the heart of the irrelevant consideration in this construction.

FRENCH CJ:   It does not fit, you say, with the factors ‑ ‑ ‑

MR HORAN:   Yes, and it ‑ ‑ ‑

FRENCH CJ:   ‑ ‑ ‑ as set out in the criterion.

MR HORAN:   ‑ ‑ ‑ in some senses, inverts those factors.  So, it is not simply operating in the space of permissible relevant considerations, adding some further factors or legitimately altering the weight to be given between the four factors.  It is inverting and mixing up, in a way that changes the entire operation, or at least potentially ‑ ‑ ‑

FRENCH CJ:   So, one does not have to say that the policy is invalid because it is just a policy but what it directs attention to is an irrelevant consideration, or, alternatively, as construed by the delegate, it was an irrelevant consideration, as applied by the delegate it was the application of an irrelevant consideration.

MR HORAN:   Yes, and the overarching point is that it precluded a proper assessment of whether these cases raised compelling reasons for special consideration.

FRENCH CJ:   This hydra headed “Special Case” may end up with only one or two heads.

MR HORAN:   That is why in one sense I started my submissions by saying there are really two areas - one is the operation of the policy and the second is the application of the policy but the operation of the policy gives rise to a range of different errors, some of which in the decision record – or in the notification letter and case notes are not necessarily tied to the policy in the strict sense.  There may be some misconstructions and errors that are independent of the policy but they all stem from this idea of priorities and capacity and the way in which that interacts with an application of compelling reasons. 

It should also be noted, and we have referred to this in passing in our submissions, that there other criteria in this subclass directed to this type of consideration at which the priorities policy is directed.  There is an explicit criterion which was not reached or looked at by the delegate, dealing with global and regional priorities, for example.  So that quite directly requires the decision‑maker to take into account the priorities in that sense but there is no scope under the compelling reasons criterion for applying this type of priority.

We are not saying that no priority can be adopted or no weighting, but it has to be one that is consistent with both the individualised nature of the assessment and with the mandatory factors.  So that in that regard we have contrasted, for example, what are called the “Other priorities,” which if the Court goes to court book 150 to 151, there is an identification of what presumably is a priority system that applies quite independently of the changes introduced by the Minister and that is simply to prioritise as priority 1 cases where the applicant has a partner, child, parent or sibling; priority 2, slightly wider relationships; priority 3, friend or distant relative.

BELL J:   Did you say you are on page 150?

MR HORAN:   Page 151.  It starts at the bottom of page 150, headed ‘Other priorities.”  That approach is, to some degree, reflected in the SHP priorities because categories 2, 3 and 4 mirror that concept of ranking applications by strength of relationship.  But the two things that are new in the SHP priorities are to lift out one category as category 1, irrespective of relationship, and to push down another category of applications in priority 5, again, irrespective of relationship.  So it is trying to alter and structure the compelling reasons assessment in a way that does not accord with the tenor of the mandatory factors.

GAGELER J:   Would it be permissible to read the policy as directed to the current capacity of the Australian community to provide for the permanent settlement of applicants who apply for humanitarian visas?

MR HORAN:   We say no.  Well, to read the policy as directed to that – the policy may be directed – we say that the criterion is not directed to that broadly and the policy is directed to that but more.  It is also directed at other political considerations by reason of which certain kinds of persons in Australia should not be encouraged to sponsor their family under this subclass of visa. 

So that, in part, it goes back to the expert panel and its consideration of the “no advantage” principle, but it is clear from the ministerial submission that this policy is proceeding not just from an assessment of capacity but from an assessment of a perception of the “no advantage” principle by which priority 5 applicants are seen to be taking places away from others, including priority 1 cases, who came here through regular migration pathways.

This is not the place to debate the policy behind that, but that is one of the drivers of the priority, so it is not, strictly speaking, just looking at capacity because the capacity of the Australian community to support family members of people on protection visas is no different from the capacity of the Australian community to support relatives of people on other types of visas.  To say that there is a limit on the number we can take does not say anything at all about who we should take other than, perhaps, saying we should take more compelling rather than less compelling. 

KEANE J:   But, it is not talking about supporting at all either, is it?  It is talking about settling them permanently.

MR HORAN:   Yes.

KEANE J:   Not supporting them.  It is not a question of whether Australia has the capacity to feed and clothe and house people.  It is a question of settling them permanently in the community ‑ ‑ ‑

MR HORAN:   Yes.

KEANE J:   ‑ ‑ ‑ which opens up a whole range of socio‑economic questions.

MR HORAN:   Well, when looked at as an overall capacity issue, but when looked at in an individual case, which is what we say that criterion is directed at, it is relevant to look at the micro level capacity as well.

KEANE J:   But, it is also relevant to look at the background?

MR HORAN:   Well, we do not necessarily say it is irrelevant but if it does not fall within paragraph (d), it presumably would be a permissible consideration, but subject to our other ground which is it cannot be treated as a cap.  So, it is relevant to look at size and government policy as to size of the program and that has been done in the past because delegates have not been granting willy‑nilly to any person who satisfied the split family criteria.

Essentially, there was a bottleneck on the flow of grants which, in part, was determined by the size of the program, so that is nothing new.  What is new here is that the category has introduced another factor which is the type of visa held by the proposer and that priority has been given teeth for the first time in that it has now been used to knock out applications whereas before it was simply a processing matter that people would have to wait.  It was accepted – and it is in the materials – that people have to wait many years to get a grant, but this is different, this is trying to clear the backlog by knocking out applications in lowest priority cases.  It is not, strictly speaking, being done solely because of capacity constraints, it is being done because of other judgments made about what sort of people should be permitted to bring their family to Australia.

KEANE J:   What sort of people provide compelling reasons for giving them special consideration?

MR HORAN:   The compelling reasons for special consideration is directed to the applicants, not the proposer.  But, I agree, one cannot necessarily completely draw a line between the two in that the applicants are – one aspect of the application is the person who proposed.  But, it does not really go to capacity in the sense – as I said before, it does not tell you anything about the capacity of the community to provide for the permanent settlement of those applicants.  It simply is intended to implement a no‑advantage policy into the compelling reasons assessment which, we say, has no place there.  It might be relevant elsewhere but it has no place under that criterion.

Now, I think I have probably covered most of the points arising from the policy and the misconstruction, but I wanted to say something about inflexible application, because in some senses, even if the policy is regarded as legitimate and directed to permissible considerations, it is orthodox that that policy cannot be rigidly applied to this case so as to preclude consideration of the individual merits.  Now, in this case, we rely on a number of features, but the starting point – and perhaps the high point – of our case is the sentence at the top of court book 262, and directly after referring to the government’s priorities, the delegate quite candidly states that:

Only the highest priority applications will be successful because there are not enough visas available.

Now, that is not saying only the most compelling applications will be successful.  It is saying that only the highest priority applications in accordance with the government’s priorities will be successful, and it is common ground between the parties that this application was treated by the delegate as lowest priority.

Now, when you put those two things together, that sentence can mean nothing else but that this application could not succeed because it was not highest priority.  In fact, it was lowest priority according to the delegate’s treatment of the priorities.  So, we say that there is that positive indication.  It does not rely on any inference, necessarily, from absence of consideration, so it does not raise the problems that the defendant identifies with trying to identify what was and was not considered by the delegate.  The court can make findings, and has to make findings about why the decision was made by the delegate.

The delegate has set out both in the case notes and in the notification letter the basis on which the decision was made.  There is a positive statement from which the inference can be drawn that the delegate considered that only high priority applications would be successful, so that any consideration of the individual circumstances was overwritten by that approach.  Now, we say that it is not in dispute that a policy – provided it is lawful and consistent with the governing statute – can be taken into account in exercising a power, but it cannot be applied so as to preclude consideration of the circumstances of each case.  The interests of consistency that are promoted by the use of policy guidelines cannot, or must give way to the interests of individual justice in a particular case.

GORDON J:   Mr Horan, can I just come back to your complaint about the second sentence at the top of 262?  We have been told since I think I was probably at law school, which is a long time ago, that we need to look at the whole of the reasons together.  Does that argument still hold with what sits at the bottom of 261?

MR HORAN:   We say it does, because the delegate has recited that, weighing all the factors, the compelling reasons criterion is not satisfied.  The following paragraph reveals an underlying assumption that has been applied in weighing those factors, which is that the priorities which are referred to immediately prior to that conclusion at the bottom of page 261 are determinative.  That is what we say that sentence means.  It means that only the highest priority applications will be successful.

There is no consideration anywhere in the case notes or the decision record of any prospect that these priorities would not be applied.  Either the policy itself would be departed from, or to the extent that the policy allowed exceptional cases to be dealt with differently, the delegate has turned his mind to whether this was one of those cases.  The hearing preceding the making of a decision is, to some extent, informative because the relevant changes – going back to court book 131, it identifies the two changes that were introduced in March 2014.  The second dot point is dealing with the removal of a concession, the concessional single factor criterion for compelling reasons, and that was dealt with by the regulations.  The first dot point is the introduction of priorities.

Then, when one turns to what happened immediately following that change, at court book 212 and following, the Department wrote to the visa applicants care of the plaintiff, and invited them to address the four factor compelling reasons criterion.  In the middle of page 213, at line 17, there is a:

Request for information about your experiences in your home country –

As a direct result of the full claims-based compelling reasons criterion becoming applicable, the applicants were asked to provide additional information about their circumstances.  They had, in fact – and this is at court book 188, I think – at an earlier stage of the process when, prior to the decision in Shahi, they had been asked a similar question when it was thought that he was about to turn 18, but the decision in Shahi meant that he retained the concessional treatment until these changes.

What is important to note is what was being asked was “provide us with humanitarian claims so that we can apply the four factors”, but there was nowhere any identification of the other substantive change, the priorities policy, and asking for submissions about whether or not that policy should be applied, or whether there were circumstances warranting the departure from the policy.

So when one gets to the consideration given by the delegate to the application, it underscores the absence of any substantive consideration given by the delegate at all to whether or not this case was compelling, notwithstanding the priorities.  Even if one applies the approach or the expectation expressed in the ministerial submission, there is nowhere ever any consideration of whether this case is highly compelling or exceptional or any of the other language that was used in that submission.  So we say the inference is open from that sentence in the notification letter and from the broader history of the application and the absence of any consideration of whether this is an exceptional case that the policy was being applied in a strict fashion.  It is stated in absolute ‑ ‑ ‑

FRENCH CJ:   Are you saying you tick all the boxes, (a), (b), (c), Australia has a limited capacity with respect to all applicants, the government has, as it were, allocated that capacity according to certain priorities, you fall into the lowest category, ergo not satisfied there are compelling reasons?  Now, there must be somewhere along the line there either overlooked or implicit a judgment about the capacity of the Australian community to provide for the permanent settlement of the applicant.

Now, I suppose you can say, well, there are limited places, so there is a capacity – there is a capacity to provide for the permanent settlement of the applicant because there are 45 however many thousand places, but that notwithstanding that capacity, the priority allocation negatives the existence of the compelling reason.  I suppose that is how it would work consistently with the factors, would it not?

MR HORAN:   Yes, that the government decision as to which cases should be compelling and which is not has been the ‑ ‑ ‑

FRENCH CJ:   As to which should be given priority and which ‑ ‑ ‑

MR HORAN:   Priority, yes.

FRENCH CJ:   ‑ ‑ ‑ informs the judgment as to what is compelling, you having made a finding about capacity.  Obviously, this is one person who can be – there is no suggestion this one person cannot be fitted into the number of available places, but that is not enough to make it a compelling reason for special consideration because of the controlling factor, being the priorities, and you say the priorities are controlling to an impermissible degree or they should not be there at all?

MR HORAN:   Well, if they can be there, so this argument is premised on the fact that there is a legitimate policy, then they have to be subject to exceptional cases.

FRENCH CJ:   You say what he has really done is say, “You are low priority, you are priority 5.  You lose”?

MR HORAN:   Yes, and that is candidly expressed in the conclusion in the letter.  If I could just take the Court briefly to – perhaps before I do that, in relation to the capacity, there is one point which does not strictly fall under the inflexible application of policy ground that relates to the overlooking of material going to support.  I do not want to develop that orally, but just to identify that the case notes did address capacity ‑ ‑ ‑

FRENCH CJ:   They talked about short‑term accommodation.  You said that was wrong.

MR HORAN:   Yes, and we have said that the delegate did not consider, in the sense of giving real, proper or genuine consideration, to material that was submitted in response to this invitation to provide further material on the four factors.  That specific response to the introduction of those four factors for the first time included statements of support, including from a community group that would provide material and other support, and none of that was acknowledged in anything written by the delegate in the case notes or in the decision record.

On the question of the validity of the policy, as your Honours well know – I will not take your Honours to the cases – it has been accepted for a long time, and explained in detail by Justice Brennan in Drake’s Case, not only are policies permissible but they are positively desirable in the case of, particularly, wide discretions of the kind – wide statutory provisions of the kind you find in issue in this provision and for the reasons that his Honour Justice Brennan explained, particularly at pages 639 to 642 - but I will not take your Honours to it.  Your Honour the Chief Justice and Justice Drummond in Gray’s Case, which my friend mentioned, made the same point in the context of the Migration Act, particularly in the context of high volume decision‑making. 

The reality is, given the thousands of visa decisions that are made under the SHP, all of the decisions are not going to be made by the same people.  In fact, we know from the PAM that they are made by decision‑makers who are widely geographically dispersed; many of them are in posts in different parts of the world.  It is, in our submission, given the width of the criteria, plainly desirable that some guidance be given as to how to deal with the fact that there will be many more applications than places that are to be offered, and the processing priorities are, in our submission, a useful means of pursuing that objective.

They do not subordinate the mandatory considerations because, as the delegate’s reasons in this case show, one still needs to look at all of those matters.  It is just that having looked at the mandatory matters, that will not be enough to tell you is this case sufficiently compelling to warrant special consideration?  I think I have probably traversed that ground sufficiently already.

Insofar as there is a suggestion that the policy is inconsistent with the regulations because it introduces a criteria of a kind that cannot properly sit, as I understand it, with the four mandatory factors, we invite your Honours to note that, as part of the legislative history, an amendment was made, which your Honours will see in my friend’s annexure at page 16, introducing – this is in 2012 post the Houston expert recommendation – an amendment was made, which you see in the middle of page 16, item [3], inserting a new criterion into Schedule 1 of the regulations:

Applicant must not be an irregular maritime arrival.

There is then a definition of “irregular maritime arrival” as a person who arrived after 13 August 2012 and became an offshore entry person.  I note that because, before these processing priorities were introduced, the regulations had been amended in such a way as to make it impossible for a person who had the status of an irregular maritime arrival, as defined, to sponsor their family under the SHP, that being a direct result of the Houston recommendations.

The regulations having recognised or reflected a policy judgment that there were reasons why the fact that a proposer was an irregular maritime arrival should disentitle people under the Special Humanitarian Programme, for there subsequently to be made a policy that does not disentitle people in that category but deprioritises their application or prioritises others over them is, in our submission, completely consistent with the regulatory regime.  It is attributing significance in deciding whether there are compelling reasons for giving special consideration to something that the regulations already attribute even greater significance to for the category of persons there captured.  So, far from seeing repugnancy, one sees a consistency in the policy with the way in which the regulations had been amended post‑Houston.

Our friends suggested to your Honours that this policy – the priorities were all about no advantage and, in their written submissions, they suggest that they are punitive, that they are intended to visit a punitive consequence on applicants.  In our submission, that is not an open interpretation of the regime.  Can I, in support of that, take your Honours to a couple of pages of the Houston report that explain, in our submission, the origins of all of this.

At page 61 in the court book, where recommendations are being made with respect to changes to the humanitarian program, your Honours will see near the top of that page, under the heading, at that time – this is in 2012 – there were 20,000 outstanding applications, 16,300 of which were by immediate family members or split family and 90 per cent by proposers who travelled to Australia in an irregular manner.  There is then an explanation under the current policy settings of the – and I am looking at ‑ in my version, they appear as “y”s but really the second bullet point:

immediate family are given priority in processing . . . In most cases this is regarded as met on the sole basis of the applicant’s close family connection to Australia.

Then, under those two bullet points, you see the report saying:

The immediate family applicants are not necessarily those most in need of a humanitarian visa, but they currently make up a large proportion of SHP grants due to the high number –

The consequence of that is identified in the next paragraph that:

The reduced number of SHP places . . . due to the high number of IMAs, will lead to further increases in the backlog.

So, that people would wait for many years and low priority people were:

not likely to be granted a visa at all, despite some having strong humanitarian claims.

The recommendation made to respond to that problem, over the page at the top of page 62, in the second bullet point, was to:

rebalance the Humanitarian Program to deliver places to family members offshore and on a humanitarian needs basis.

Then, in the next bullet point down:

restore a greater humanitarian focus to the SHP visa –

Then, in the next bullet:

rebalancing the Humanitarian Program to have an offshore SHP and refugee focus rather than an onshore asylum focus –

Finally, over the page on 63, there was the recommendation that led to the visa change that I just showed your Honours, disentitling proposals, and a recognition that, particularly in the context of unauthorised maritime arrivals, that there had been an emerging practice of minors being sent to become an “anchor” for a family reunion application.   

So, in my submission, read in that context, what your Honours see is a development of process and priorities not to be punitive for existing people who had arrived in Australia and who sought to propose family members, but a desire to rebalance the program because it had, by reason of the policy settings that then existed, moved away from a focus on those in greatest humanitarian need and preferenced over them persons with strong family connections. 

The processing priorities are consistent with the other shifts designed to rebalance the available places so that those for whom there are the strongest compelling reasons for giving special consideration are not to be determined just be reference to the family connection but more broadly by reference to the matters of the kind to which I have just referred.

Finally, your Honours, on the inflexible application point to the extent that I have not already addressed it in answering your Honour Justice Gageler’s question, the policy itself – if your Honours turn to page 150 of the court book – this is the PAM version of it, the procedures advice manual version of it – and you see on that page under heading 7.2, “Prioritising caseload”, there is a reference to the various different visa categories that comprise the Class XB category and then you see the “SHP priorities”.  But, then at the note at the end of that reference, in the third bullet point, the procedures advice manual records that:

in exceptional circumstances, after consultation with Humanitarian Branch, individual applications may be given a higher priority than indicated above. 

While it is not part of the policy, one gets, perhaps, some hint of the kinds of things that the Department had in mind from page 123 of the court book which is the ministerial submission that led to the processing priorities where, in paragraph 15 on page 123, the ministerial submission records that some persons in priority 5 will, nevertheless, be able to be granted visas in particular circumstances and some kinds of examples of what the Department had in mind are given.

We do not say that is part of the policy, but what we do submit is that the policy on its face admits the possibility of exceptions.  It does not suggest that if you are policy category 5, you are out.  If the delegate faithfully applied that policy, there is no reason to infer that the mere fact of being a category 5 person was necessarily decisive against having a finding of compelling reasons made.

Your Honours, our final submission is that there is a body of authority illustrated, we say, usefully – although, again, I will not take your Honours to it – by the decision of the Court of Appeal in Western Australia in Re Romato; Ex parte Mitchell James Holdings.  I would invite your Honours to look in due course at paragraphs 28 through to 33, the effect of which is that there is nothing wrong with applying a policy provided that the decision‑maker is prepared to entertain submissions that might be made to suggest that there should be departure from the policy, or to suggest that the policy is unlawful or should not be followed for any other reason.

In this case, there is, we submit, nothing that was done that required, and no reason on the face of the material before the Court to conclude, that there was any obligation in this case to consider departing from the policy if in fact the delegate did not consider that.  In our submission, in fact, the evidence is silent as to whether or not the delegate did or did not consider whether this was an exceptional case and this is another situation where, absent an obligation to provide reasons, the silence of the notification letter does not provide a safe foundation.  But even if the delegate did not consider departing from the policy, he was not asked to do so.  In those circumstances, on the authorities discussed in Romato, which includes British Oxygen and a number of other cases that are set out in the Full Court’s judgment, there was no unlawfulness established.  Unless your Honours have any other questions.

FRENCH CJ:   Thank you, Mr Donaghue.  Yes, Mr Horan.

MR HORAN:   If it please the Court.  The first point is to reiterate the distinction that is important between the size of the humanitarian program and the priorities.  The former is governed by the announced policy, which is what is referred to in the PAM at 138 to 139, the annual announcement.  That is quite distinct from the ministerial policy as to priorities, which is what the applicants complain of in this case.  The latter was not subject to any consultation – in fact, it was a quite deliberate decision not to consult on it, which appears in the ministerial submission at court book 120 to 121.

We do not say that size is irrelevant, but this case is about priorities and not the size of the program.  To the extent that size is looked at, in terms of either capacity or compelling reasons, it needs to be looked at on an equal footing with all other applications.  If the task is to identify those applications which are more compelling than other applications, then one has to do that consistently, and also compatibly, with the four factors that are mandatory in applying the criterion.  So it is one thing to say that certain applications are more compelling, but if it is done on what we say is a basis of discrimination which does not accord with the policy and intent of the regulations, that is a different matter.

In relation to irrelevant considerations, we only say that number of places was an impermissible consideration if it was used in the sense of the informal cap, and that is the point about the absence of a section 85 legislative instrument.  We do not say that referring to the size of the humanitarian program is an irrelevant consideration, but one of our grounds is that the delegate went further and looked at places available, and visas available, in a more absolute sense.  The policy, we say, can be an irrelevant consideration in the Peko‑Wallsend sense if it is not consistent with the regulations, but as your Honour the Chief Justice observed, that ground merges into the ground about whether or not this policy is consistent with the regulations, so it ‑ ‑ ‑

FRENCH CJ:   What do you say to the proposition that I put to Mr Donaghue in terms of a narrow view, or relatively narrow view of (d), with the size question – the overall numerical question combined with a priorities question coming in through compelling considerations generally?

MR HORAN:   Well, it can be taken into account in adjusting the barometer of how compelling a case needs to be because the decision‑maker can say, including having regard to policy, that we can only grant around 5,000 visas a year, that is the target, and so we are going to control the flow of grants in a way that does not exhaust that target in the first month of the year.  But all that means is that cases will be – that might mean that a higher degree of discrimination or a stronger connection to Australia might be necessary to establish compelling reasons or it might mean, as it did in the past, that the case sits and waits for determination until a place is available.

But it does not provide a basis to take one category out of the ordinary assessment of humanitarian claims.  We say that neither capacity nor compelling reasons involves a political judgment.  The political judgment exercised as to the size of the humanitarian program might be relevant insofar as government policy may be relevant to a decision‑maker, but it is erroneous to treat the delegate who makes the decision as engaging in any sort of political weighing of the sorts of socioeconomic considerations to which ‑ ‑ ‑

KEANE J:   But you are not suggesting that whether or not the reasons are compelling is in some way justiciable, are you?

MR HORAN:   No, in fact, we say ‑ ‑ ‑

KEANE J:   So, if it not justiciable, it is reasoning – it is a decision of a different kind, is it not?

MR HORAN:   It is – we do not complain – and suggestion was made that we have not pointed to any factor that made this case compelling or exceptional.  Well, it is not appropriate in this Court for us to do so because it is not justiciable provided that that criterion is properly applied.  What we complain about is a legal error which, if established, would not require the visa to be granted.  It would require a fresh application of that criterion.  It is whether or not it was legitimate to take this category out of the ordinary flow of applications and subject it to a higher bar. 

In terms of numbers, the numbers involved are not the millions of potential applicants that are referred to by the defendant.  There is a reference at court book 123 to the number of applicants we are concerned with here, and it is a closed class because nobody can now propose – no arrival after 13 August 2012 can propose a split family application, and it is 3,500 applicants proposed by approximately 500 minors in Australia. 

In relation to the meaning of “compelling”, and it was said that that is quite a high bar, I would simply note that under the former subclause (1), which was also a “compelling reasons” criterion, it was accepted that strength of family connection alone was sufficient to make a case compelling.  That is in the court book at page 61, pages 108 to 109, and page 128.

In relation to the support available, we submit the reference to which the Court was taken at court book 256 does not mention or engage with the material at court book 250 to 251 which is support not from the proposer, but from other sources.  Reasons were in fact given here and if the delegate was required to do more than simply look at or read the material and to give it proper consideration rather than put it to one side after having looked at it, then that should be reflected in the record that the delegate made of his consideration.

The final point I would make in relation to the amendments to the regulations which were said to somehow suggest or give a leg up to the underlying basis of the priority 5 aspect of the priorities policy, the amendment at attachment page 16 cuts both ways because the exclusion that was made of what were then called irregular maritime arrivals from proposing split family applications was deliberately made prospective and any reference made by my learned friends to the recommendations of the expert panel need to be understood in that regard because the expert panel specifically recommended and the regulations specifically implemented a

prospective barring of IMAs from proposing split family, but preserved the ability of existing IMAs who had arrived before the cut‑off date, including this applicant, and it preserved the concession for those applications under the “compelling reasons” criterion until the subsequent change in March 2014 to the regulations.

Now, we cannot complain about that amendment but the rebalancing that is referred to is not a rebalancing that has anything to do with priority 5 of the priorities policy.  It is a rebalancing, as my learned friend put it, to give emphasis to humanitarian focus of the policy.

Now, the priorities policy at the heart of our case is, priority 5 does not give focus to the humanitarian aspects of this subclass of visas because it takes a category and puts it at the bottom of a pile, irrespective or regardless of the strength of the humanitarian claims, whether that be degree of discrimination, strength of family connection or any other consideration and the contemplation that a priority 5 applicant might satisfy the criteria is clearly directed at cases which are more exceptional than the ordinary case so they have to satisfy more than simply showing compelling reasons for giving special consideration.  They have to show, over and above that, exceptional reasons for departing from the government’s priorities and that is where the inflexibility comes in.

Moreover, it is one thing to point to the policy to say that there was recognition of exceptional cases but there is nothing in the decision record to indicate that the delegate paid any regard to that exception rather than applying these priorities in absolute terms and the applicants were not even invited - were not told of the policy and were not ever invited to make any submissions as to why it should not be applied.

But insofar as one can point to the reasons that make this case exceptional – and that is not a matter that arises on the merits in these proceedings – the applicants, or their lawyers on their behalf, put forward very detailed submissions advancing the particular aspects of their humanitarian claims which they said made this case compelling. 

It was those individual claims that are set out at, I think, pages 218 to 251 of the court book that constitute the matters that the delegate should have had attention to in deciding whether or not, if the priorities are valid as a relevant factor, this case was exceptional and should have been granted, notwithstanding those priorities.  If the Court pleases.

FRENCH CJ:   Thank you, Mr Horan.  The Court will reserve its decision.  The Court adjourns until 10.15 on Tuesday, 10 November.

AT 12.35 PM THE MATTER WAS ADJOURNED