Plaintiff M79/2012 v Minister for Immigration and Citizenship

[2013] HCATrans 7

[2013] HCATrans 007

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne       No M79 of 2012

B e t w e e n -

PLAINTIFF M79/2012

Plaintiff

and

MINISTER FOR IMMIGRATION AND CITIZENSHIP

Defendant

FRENCH CJ
HAYNE J
CRENNAN J
BELL J
GAGELER J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 8 FEBRUARY 2013, AT 10.01 AM

Copyright in the High Court of Australia

MR M.R. PEARCE, SC:   If the Court pleases, I appear with my learned friend, MS L.G. DE FERRARI, for the plaintiff.  (instructed by Baker & McKenzie)

MR J.T. GLEESON, SC, Acting Solicitor‑General of the Commonwealth of Australia:   May it please the Court, I appear with MR S.P. DONAGHUE, SC and MS K.L. WALKER, for the defendant.  (instructed by Sparke Helmore)

FRENCH CJ:   Yes, Mr Pearce.

MR PEARCE: Your Honours, this case is about the power under section 195A of the Minister to grant visas. In particular, it is about whether that power authorised the grant to the plaintiff on 12 April 2012 of a temporary safe haven visa. The facts are in short compass and there is no dispute about the facts. They are set out in the special case at special case book, pages 10 to 14. I will just draw your Honours’ attention to the salient facts.

The plaintiff is a Sri Lankan national.  He is of Tamil ethnicity.  He is 27 years old.  He arrived at Christmas Island exactly, I think, three years and one day ago, on 7 February 2010.  He arrived there without a visa, which made him under section 5(1)of the Act an offshore entry person.  That also made him under section 14 an unlawful non‑citizen, and that raised the bar against him in section 48A(1) preventing him from applying for a visa.  He instead availed himself of the alternative process that the Government, the Minister has set up, and that was considered in this Court in the Offshore Processing Case.

On 19 April, he made a request for a refugee status assessment under that process.  On 9 June 2010, he received an adverse assessment.  On 28 June 2010, he applied for an independent merits review.  On 7 May 2011, he received an adverse recommendation.  On 5 July 2011, he applied for judicial review of that recommendation in the Federal Magistrates Court.  That application was heard and the decision in it was reserved in July 2012.

Meanwhile, on 25 November 2011, the former Minister had announced the release of certain groups of people from immigration detention.  He put out a press release, which is in the special case book beginning at page 18, if I can invite your Honours to look at that.  It runs from page 18 through to page 20, and in this first paragraph – it is a press release of Mr Chris Bowen MP, the Minister for Immigration and Citizenship, headed “Bridging visas to be issued for boat arrivals”.  In the first paragraph, he says:

The first group of irregular maritime arrivals (IMAs) will be placed in the community on bridging visas in coming days, as part of the new approach to asylum seeker management, the Minister . . . announced today.

There then follow another five or six references to bridging visas in this press release.  The first one is on the last line of the next paragraph, and then you jump down two paragraphs to the paragraph beginning “In recent weeks”, where he says towards the end of that paragraph:

I have now approved the first bridging visas for 27 asylum seekers who arrived by boat.

Jumping down two paragraphs, on the third line, these people “will live in the community on bridging visas”.  The first line of the next paragraph, another reference to, “People released into the community on bridging visas”.  The same again the first line of the next paragraph and over the page the fourth full paragraph talks about people who are “not suited to bridging visas” and that they will be considered under the community detention program.

Then in April 2012 the Minister received a submission from his Department and considered it on 5 April.  It is at special case book pages 22 through to 27 and you will see at the front the recommendation to the Minister is that he agreed:

to consider ministerial intervention under section 195A of the Migration Act –

and that is agreed.  If you go to the next page, paragraph 9:

As you have agreed, the department proposes to grant both a Temporary Safe Haven (subclass UJ‑449) visa (TSHV) and a Bridging (subclass WE‑050) visa (BVE) to IMA persons.  The grant of a TSHV to these IMA persons will bar them from lodging further onshore visa applications.

The reason for that being if it is a valid temporary safe haven visa although the bar in 46A(1) is gone a new bar arises under 91K.  The Minister then a week later, or eight days later, exercised that power that he was considering on 4 April, 5 April to exercise and he granted a temporary safe haven visa to the plaintiff valid for seven days and a bridging visa valid for six months.  The record of that decision is in a decision instrument which is an attachment to a further submission to the Minister.  The submission begins on page 29 of the special case book and the attachment, “the Decision Instrument” as it is called, goes from page 33 through to page 35.  The relevant parts for our case are paragraphs 1 and 2, identifying people set out in a table below who are ‑ ‑ ‑

HAYNE J:   Sorry, at which page?

MR PEARCE:   Yes, sorry, at page 33.  It reverts to landscape at that point and this document headed “Decision Instrument”, paragraphs 1 and 2:

1.The people named below were detained under section 189 . . . I have considered their case under section 195A of the Migration Act 1958.

2.I have determined that it is in the public interest to grant these persons a Temporary Safe Haven (Class UJ) (subclass 449) visa and a Bridging E (Class WE)(subclass 050) visa –

Jumping down to paragraph 4 for the plaintiff, who is in that – he is named in table 2:

I therefore exercise my power –

to grant the two visas.  On the same day a letter was written by the Department to the plaintiff notifying him of the grant of these visas and that letter is at special case book pages 40 through – well, the body of the letter finishes at 42, some attachments then follow.  But on the first page of the letter, page 40, under the heading “About your visas”:

Your Temporary Safe Haven (subclass 449) visa has been granted for administrative reasons and will keep the processing of your protection claims.  You should note that you will not be able to lodge a valid visa application while the department continues to assess your protection claims.

It is clearly a reference to the bar in section 91K.

HAYNE J:   I thought his protection claims by then had been assessed and refused.

MR PEARCE:   Under the old process.

HAYNE J:   He had pending undetermined proceedings in the Magistrates Court concerning those past procedures.

MR PEARCE:   Correct.

HAYNE J:   Does the special case reveal whether there was then extant any other processing of a protection claim by the Department as distinct from the plaintiff’s claim to judicial review of that which had occurred?

MR PEARCE:   The answer to your Honour’s question is no, the special case does not reveal that.

FRENCH CJ:   This was just a circular letter really, was it?  At least a common form letter I mean.

MR PEARCE:   Well, possibly.  Maybe that is an explanation for it because the assertion in the letter is clearly not correct because those processes are terminated, save only for the determination of the federal magistrate.  Then, your Honours, the plaintiff was released, he applied on 18 September ‑ ‑ ‑

HAYNE J:   But by this time it had been decided by the Executive that this man was not in need of protection?

MR PEARCE:   Under that process, yes, your Honour.

HAYNE J:   Yes.

MR PEARCE:   Yes.  Sorry, my learned junior points out I should draw the Court’s attention also to what is said in the letter about the bridging visa:

Your Bridging visa has been granted to allow you to stay in the Australian community . . . while your protection claims are being assessed.

So I would just make the point which I will return to that there appear to be two separate purposes stated for the two different visas.  Now, he was released accordingly and on 18 September he made an application for a protection visa.  The application is in the special court book at pages 49 to 74.  It is not necessary to go to the application.  The Department rejected the application and it is worth looking at the terms of the Department’s rejection, and that is at 76 to 79, letter of 8 October 2012 to the plaintiff, second paragraph:

I wish to advise you that the application for this visa made by the following applicant –

It was actually to the plaintiff’s immigration agent –

was not a valid application.

The plaintiff’s name is given:

As you hold, or have not left Australia since ceasing to hold, a subclass 449 Humanitarian Stay (Temporary) visa ‑

that is a species of temporary safe haven visa ‑

you are prevented by section 91K of the Migration Act 1958 (the Act) from lodging a valid application . . . while in Australia.

The former Minister in a proceeding swore an affidavit.  The affidavit is at pages 88 – I think he affirmed it, to be correct – at 88 to 90 and I will just draw the Court’s attention to these parts of that affidavit if I might, first in paragraph 5 at the top of page 89 about halfway down that paragraph where the date 24 March appears:

the Government decided that the existing assessment processes would continue to completion for the purpose of my consideration whether to exercise my personal public interest powers to permit such persons to lodge valid applications for protection visas.

Paragraph 6 refers in the first line to the simultaneous grant of both a temporary safe haven visa and a bridging visa, and dropping down six lines, the line beginning “Haven visa and a Bridging E visa”:

because this would allow offshore entry persons to be released from detention while at the same time avoiding the consequence that they would then be able to apply for protection visas ‑

In paragraph 9:

If I had not been able to grant a Temporary Safe Haven visa to the Plaintiff simultaneously with the grant of a Bridging E visa, I would not have exercised my power under s 195A of the Act to grant to the Plaintiff a Bridging E visa. This is because the grant of a Bridging E visa on its own would have enabled the Plaintiff to lodge a valid application for a protection visa without the restriction in s 46A ‑

So, your Honours can see from this brief outline that the facts – the critical issue in the case is whether the temporary safe haven visa was validly issued.  If it was not, there is no bar to the plaintiff from applying for a protection visa.  If it was validly issued, then he is, as the Minister contends, barred from so applying.

FRENCH CJ:   Is the temporary safe haven visa a species of special purpose visa within the meaning of section 33?

MR PEARCE:   It is not.  It has its own section, which I will come to in due course, under the Act – section 37A.

FRENCH CJ:   Yes, I appreciate that, but it does not fall into the definition of “special purpose visa”.

MR PEARCE:   No.  It is a visa of its own class.

FRENCH CJ:   What, then, is the significance of section 82(3) about the relationship between bridging visas and other visas?

MR PEARCE:   Yes.  Can I begin by saying we probably think this does not matter to this case?  The Minister’s contention is that he made a single, non‑severable decision to grant two visas.  If the temporary safe haven visa falls, the bridging visa falls with it.  The consequence of that is that the application that the plaintiff made in September was not valid, but since nobody disagrees with the proposition that he now holds a valid bridging visa, he can reapply.  So interesting questions arise about whether there was a single simultaneous decision.

FRENCH CJ:   But does not 82(3) rather suggest that the Act ‑ ‑ ‑

MR PEARCE:   It depends on the order.

FRENCH CJ:   ‑ ‑ ‑ flies against the co‑existence of bridging visas and other forms of visa?

MR PEARCE:  It does, precisely, your Honour.  Yes.  If the bridging visa was granted first, and then the temporary safe haven visa, the bridging visa would have gone into suspended animation until the temporary safe haven visa finished and the bridging visa would then have come back into operation.  That is in section 68(4), I think.  But, if they were given together at the same time, we would say they operated concurrently.  If the bridging visa was granted after the temporary safe haven visa – and those are the two factual contentions that the Minister makes – he says it is one or the other of those – in that event, they operated concurrently.  We do not think anything turns on it because we can apply.  We have a valid bridging visa now.  We can apply under that.

CRENNAN J:   That is the second bridging visa.

MR PEARCE:   Yes, and if need be we might have to get a third, depending on when this Court gives its decision.  We will cross that bridge when we get to it.  But, your Honours, if we can begin with the text of 195A?  I will make these observations about it in the first place.  Under subsection (1), it:

it applies to a person who is in detention under section 189.  

That includes the plaintiff.  The plaintiff was detained under 189(3).  The important parts about subsection (2) are that it is a power for the Minister to exercise in the public interest and it is a power to grant a visa of a particular class and whether or not that person has applied for a visa.  Subsection (3), very importantly, excludes from operation on the exercise by the Minister of his power under subsection (2), certain parts of the Act - Subdivisions AA, AC and AF - and the regulations but preserves the binding nature of all the other parts of the Act.  I will come back to what we say is the significance of that in a moment.

Just on the question of public interest, we accept that it confers a wide discretion on the Minister, however, it is not unconstrained.  This Court has said, for example, in O’Sullivan v Farrer (1989) 168 CLR 210 at 216 that such a power is constrained by the subject matter, scope and purpose of the Act, citing there Water Conservation and Irrigation Commission (N.S.W.) v Browning (1947) 74 CLR 492 at 505 per Justice Dixon.

If I can just say something now about the context in which section 195 appears.  This Court has observed on a number of occasions that the Act contains a complex, or elaborated and interconnected set of provisions.  They were described in Plaintiff M47 by Justice Heydon as an exhaustive scheme regulating the rights of non‑citizens to come to and remain in Australia.

The key mechanism for that system of regulation is the visa, and this is explained in section 4 of the Act.  Section 4 states the object of the Act, at subsection (1) of section 4, and subsection (2) explains that it is a system of visas that gives effect or to advance that object, and visas are permissions to non‑citizens “to enter or remain in Australia”.

In sections 13 and 14, we have what your Honour Justice Hayne has referred to as the system of binary outcomes under the legislation.  You can be a lawful non‑citizen under section 13(1), in which event you can stay while you have a valid visa, or if you do not have a valid visa, you are an unlawful non‑citizen under 14(1) and liable ultimately to removal.

Section 29, it has been observed, is an important section.  It is a part of Subdivision A, which deals with general provisions about visas, and section 29 explains in broad terms how visas operate.  Sections 30 to 38B then set out a number of classes of visa.  Section 30 explains that you can have two different types, permanent and temporary, and 31(3) says that the regulations can specify further classes.  They can specify criteria for classes created by the Act, and also criteria for the classes created by the regulations.

When we come to Subdivision AA we have what we regard as the, if you like the – sorry, I should first mention that there is a category of visas that are deemed visas.  They are not reliant on the act of the Minister to grant a visa, but rather, they arise in certain circumstances, and when those circumstances are fulfilled the visa is taken to be granted.  They include the special purpose visa mentioned by your Honour the Chief Justice earlier – that is in section 33 – and absorbed person visas under 34, ex‑citizen visas under 35, and enforcement visas under 38A and Division 4A.

The other visas created by the Act are to be granted by the Minister, and there is a process in Subdivision AA for the Minister to receive and consider applications.  There must be an application under section 45 to obtain a visa of that kind.  Section 46 sets out the requirements of such applications to be valid.

Section 47 imposes a duty on the Minister to consider a valid application.  Section 49 gives an applicant the right to withdraw, but if he or she does not, we go through to section 65 in Subdivision AC and there there is a duty on the Minister to either accept or reject the application and the way in which that duty is to be carried out is set out in that subsection in some detail.  This is what we say to be the primary mechanism for obtaining a visa granted by the Minister under the Act. 

There are other subsidiary means of obtaining visas under the Act and the first is bridging visas which are created under section 37, and then detailed provisions for bridging visas are set out in Subdivision AF, beginning section 72.  Unlike the duty under section 65, the Minister, in deciding whether or not to grant a bridging visa under 73, is not bound to accept or reject an application and there need not even be an application.  There may but need not be an application.

Broadly speaking, bridging visas are available for eligible non‑citizens and that category of person is described in section 72.  There are then criminal justice visas, which sit outside the normal means for obtaining a visa.  They are created by section 38.  Division 4 regulates the grant of visas of that kind.  Section 159 contains a specific power in the Minister to grant such a visa and it is in his discretion.  He is under no duty grant or refuse a visa.

So we come then to section 195, which is the other exception to the normal mechanism for obtaining a visa under the Act.  This section was extensively considered by this Court in the case of Plaintiff S10‑2011 v Minister for Immigration and Citizenship (2012) 86 ALJR 1019. It is No 5 in our list of authorities and I would propose to take your Honours to some of the passages in that judgment.

HAYNE J:   With a view to demonstrating what?

MR PEARCE:   To demonstrate the method or the way in which this Court has said the power under 195A is to be exercised and how it differs from the power under 65.

HAYNE J:   Is it not necessary to begin by identifying the ambit of the power given by 195A(2), rather than by considering the manner of its exercise and the limits on the manner of its exercise?

MR PEARCE:   Perhaps your Honour has given a better answer to the question than I gave because those considerations are dealt with in the passages that I wanted to go to in the judgment.  If we can begin in the judgment of your Honour the Chief Justice and Justice Kiefel, which is at 1027, paragraph [30], beginning at line E, their Honours there said:

The dispensing provisions stand apart from the scheme of tightly controlled powers and discretions.  They confer upon the Minister a degree of flexibility allowing him or her to grant visas which might not otherwise be able to be granted because of non‑satisfaction of substantive or procedural requirements.  The powers so conferred are conditioned upon a ministerial judgment of the “public interest”.

In the plurality judgment of Justices Gummow, Hayne, Crennan and Bell at page 1037 paragraph [85] ‑ certain other provisions were also being considered in this case, we are just concerned with 195A ‑ but at point C in [85]:

Like s 195A, ss 351 and 417 empower the Minister to dispense with the requirements of subdivs AA and AC of Div 5 of Pt 2 –

I think that should be Division 3 ‑

and thus with the requirements of a valid visa application to be considered by the Minister.  The result is that a visa may be granted to a person who does not satisfy the requirements for the grant of a visa.

And in the second full sentence in the next paragraph:

The central difference between these powers and the other powers the Act gives the Minister to deal with visas are that the Act obliges the Minister to consider any valid application for a visa and, if the prescribed conditions are met, the Minister must grant the visa that is sought.

Further, in that judgment, at page 1039, paragraph [99], I draw your Honours’ attention to what is said in the subparagraphs there, subparagraph (v), (vi), (vii), (ix) and perhaps look, in particular, at (vii):

individual interests and rights are dealt with by provisions of the Act regulating applications and providing for review of decisions concerning visas.

Then through to (ix):

Against that background, it is not surprising that the focus of the four dispensation sections is upon the Minister’s view of the public interest rather than upon the satisfaction of conditions for the issue of visas.

Justice Heydon referred to these provisions not as dispensing provisions but as empowering provisions and he subjected them to quite detailed analysis.  In paragraph [110] on page 1041, I will not read it out but invite your Honours to see what he said there, [110] and then [113], [114] and over the page at 1042, [118], and there his Honour said at the third line at the bottom of the first column in 1042:

Under the conventional statutory regime, the Act creates a duty to consider, a duty to decide, a duty to afford forms of procedural fairness, and a duty to apply concrete criteria.  The empowering provisions create only powers to soften the rigours an adverse outcome of the former regime might create ‑ powers depending on much vaguer and more impressionistic criteria, which are to be invoked when all else has failed.

Now, your Honour, with those observations in mind, I would like to focus on subsection (3) and on the impact of the dispensation of those subdivisions named there and the regulations, or as Justice Heydon put it, on how the Minister is empowered by not needing to have regard to what is in those subdivisions.

First, in relation to the regulations, the dispensation from the regulations, it is plain that none of the administrative arrangements created under the regulations bind the Minister in the exercise of the power under 195A, nor is he bound by any criteria that are specified in the regulations either for a class of visa created by the Act or for a class created by the regulations themselves.

FRENCH CJ:   Does that mean the Minister in the exercise of power under 195A(2) can invent a new kind of visa, call it the ministerial visa, say, I give you permission to enter and remain in Australia?

MR PEARCE:   You would need a source for that power.  In my submission, given the highly detailed prescriptive system of classifications of visa created by both the Act and the regulations, Parliament would not have intended that.

FRENCH CJ:   What takes us to that constraint in the words in 195A(2)?

MR PEARCE:   It is not in the words itself, it is in the context of the Act as a whole, I would say.

HAYNE J:   Why is not in the words “a particular class”?

MR PEARCE:   Because the Act and the regulations create a regime of classes, an exhaustive regime of classes, which seeks to cover every eventuality by a class.  That is, in my submission, what is to be deduced from the highly prescriptive regime of classification of visas and the evident intent of covering every eventuality by a class of visa.  These are questions which, with respect, do not need to be answered for the purpose of this case.  They are important questions to test the ambit of the power, I accept that, but the Minister has not purported to do that in this case.  The Minister has purported in this case to grant a visa of a class that the Act creates, section 37A, temporary safe haven visas and I will come back ‑ ‑ ‑

HAYNE J:   Do not assume that I accept that proposition.  Do not assume that I accept that we do not have to look at the way Subdivision A of Division 3 operates and what is meant by a particular class of visa.

MR PEARCE:   Yes.  My answer to your Honour’s question is it is a class of visa set out in the Act or the regulations.

GAGELER J:   That is looking to section 31(5), is it?

MR PEARCE:   Yes, and section 29.

CRENNAN J:   Just on the regulations point, section 40(1) provides that:

The regulations may provide that visas or visas of a specified class may only be granted in specified circumstances.

That obviously does not apply. That is dispensed with under section 195A(3).

MR PEARCE:   Correct, and I will talk in a moment about what we say to be the consequence of that dispensation.  I have dealt with the effect of the dispensation of the regulations.  The effect of the dispensation of Subdivision AF is to empower the Minister to grant bridging visas to people who would not otherwise qualify for bridging visas, to people who are not eligible non‑citizens.

CRENNAN J:   Because they would be required to have made a valid application, is that the point?

MR PEARCE:   Not necessarily, no.  The definition of eligible non‑citizen is in section 72.

CRENNAN J:   Section 72(2)(b).

MR PEARCE:   And they would be required to come within one of those definitions.

CRENNAN J:   I was thinking of 72(2)(b).

MR PEARCE:   Yes.  That is one of the possibilities.

CRENNAN J:   That is dispensed with, yes.

MR PEARCE:   Yes.  So, a bridging visa can be given to someone who is not an eligible non‑citizen.

CRENNAN J:   Yes.

MR PEARCE:   We accept that.  Now, the effect of the dispensation of Subdivision AA we would say is no more than this, that it makes clear that in exercising the power under 195A the Minister is exercising a separate power and not the section 65 power.  It makes clear that there need not be – that is AC but AA, rather, there need not be a valid application under section 45.  If there is a valid application he has no duty to consider it under section 47 and applications that are put in, if he decides to consider them, need not comply with section 46.  That is the effect of the dispensation of Subdivision AA.  It is a further amplification of those concluding words in subsection (2).  This is what it means – the fact that whether or not the person has applied for the visa means that the requirements of AA need not be complied with and that is made clear.

HAYNE J:   Well, it is boxing out the argument that says, well, if someone has applied, they have to have complied with AA and (3) is saying no, they do not.

MR PEARCE:   Precisely.  For the avoidance of doubt, making it clear, that is precisely how we put it, your Honour, with respect.  We say exactly the same about AC, that it is a further avoidance of doubt provision.  The concluding words in (2) probably achieve that.  By excluding AA, the exclusion of AC must follow logically, but to block any argument, and for the avoidance of doubt, Parliament has said AC is also dispensed with.  This just makes clear that the Minister acting under 195A is not exercising a power that is in any way affected by the provisions of section 65.

CRENNAN J:   Well, you could formulate that this way, that because of that dispensation, the Minister does not have to be satisfied that the person is one to whom Australia owes protection obligations under the Convention.

MR PEARCE:   I will come to that point right now, your Honour, because what the Minister ‑ ‑ ‑

CRENNAN J:   I mean, in one sense, temporary safe haven visas are par excellence visas where the Minister does not have to be satisfied in that regard.

MR PEARCE:   That is correct, your Honour, but I would not accept the first proposition that your Honour put for this reason.  Given that we need not be concerned with what is in section 65 – I think we have established that – what we have is a power under 195A(2) to, in the public interest, grant a visa of a particular class, whether or not the person has applied for it, and irrespective of what is in the regulations and you can get a bridging visa even if you are an eligible non‑citizen.  But let us imagine that the Minister decided to consider the grant of a protection visa under this power.  Protection visas are created by section 36, so we go back to 36 and the Minister is bound by 36 in exercising the power.  That is one of the sections of the Act that continues to bind the Minister in the exercise of the power.  Section 36(1) says:

There is a class of visas to be known as protection visas.

Subsection (2) sets out a number of alternative criteria for such visas.

CRENNAN J:   How does that work?  Because it is a particular class of visa, there are criteria?

MR PEARCE:   Yes.

CRENNAN J:   Well, then, how does that work in the context of the dispensation in relation to AC?  How do they intersect, is what I am trying to put?

MR PEARCE:   Yes.  We say you can put AC aside.  We are not exercising the power under section 65.  We need not be concerned with the section 65.  We need not be concerned with an argument that 65 is a special or specific section or provision that regulates the general power under 195A.  We need not be concerned with that.  So, in my submission, one should put 65 out of one’s mind and one should start at 195A(2) and say, public interest, visa of a particular class, I am the Minister, I am thinking of giving someone under this power a protection visa.  Protection visa is a visa of a particular class and it is created by the Act, it is created by a section of the Act that binds the Minister.

So the Minister must look to section 36, he will see there is a class of visas to be known as protection visas, so he knows that is a visa of a particular class.  He will see subsection (2) sets out alternative criteria for that class of visa and we say in that way the criteria and satisfaction in the way explained by this Court in Plaintiff S10, satisfaction about those criteria is required for the exercise of the power in that particular case of 36, yes.

CRENNAN J:   If he ignored the criteria and said, “I do not have to satisfy”, that would be acting ultra vires?

MR PEARCE:   We would say that.

HAYNE J:   It may be that a relevant contrast that has to be considered at some point is between 195A(2), “may grant . . . a visa of a particular class” with, for example, 417.  Section 417 is substitution of a more favourable decision not attached to grant of a particular class of visa.  It is simply substitution of a decision. 

MR PEARCE:   Yes.

HAYNE J:   The contrasting language may, it may not, I do not know, but may perhaps bear upon the ultimate question of construction that we have to face which is what does 195A(2) mean?  What is the power given by 195A(2)?

MR PEARCE:   I think your Honours understand how it is that we say criteria set out in these sections of the Act which bind the Minister must be considered by him in the exercise of the power under 195A(2).

HAYNE J:   Well, the alternative view would appear to read 195A(2) as amounting to – and I do not say this is an unacceptable construction, but it – as reading it is:

may grant a person to whom this section applies a visa of –

any class, not “a particular class”, but of any class.

MR PEARCE:   Yes.

HAYNE J:   Thus the Minister could, under 195A(2), grant someone a criminal justice visa.

MR PEARCE:   My argument would be much more difficult if that was the language of the statute, but it is not.  We say a lot hinges on the use of the words “a particular class”.

FRENCH CJ:   Does that drag in criteria or does it drag in the purpose of the particular class of visa?

MR PEARCE:   Well, we have argued it in our written submissions as power and purpose as alternative ways of putting it.  They overlap.  There is no doubt about that.  I was proposing to make some separate submissions on purpose.  If we lose on the question of power we have a fall‑back argument about purpose and I will get to that shortly, but I probably do not need a lot longer on the question of power.

CRENNAN J:   The primary argument is power and hinging on this “applies a visa of a particular class”.

MR PEARCE:   The fact that the sections in the Act that specify the particular classes are left binding on the Minister by subsection (3).

CRENNAN J:   You took us to 36.

MR PEARCE:   Section 36(2).

CRENNAN J:   Then you go to 37A.

MR PEARCE:   We think 36(2) is a clear case because it specifies criterion or criteria – there is more than one criterion – but when we come to section 36 we concede the argument is more difficult because it does not use the language.  It does not use the word “criterion”.

CRENNAN J:   When you come to 37A?

MR PEARCE:   Section 37A and that is the temporary safe haven visa.

GAGELER J:   Can I just understand?  You accept that the criteria set out in the regulations are excluded by subsection (3)?

MR PEARCE:   Yes.

GAGELER J:   But you say the criteria set out in the Act for other classes of visas are not excluded by subsection (3)?

MR PEARCE:   That must have been Parliament’s intention, by excluding the regulations but not those parts of the Act.

CRENNAN J:   Not the criteria in the Act?

MR PEARCE:   Yes.

GAGELER J:   The requirement for the Minister’s satisfaction of those criteria ‑ ‑ ‑

MR PEARCE:   Is dealt with in the way this Court explained in Plaintiff S10.

GAGELER J:   Can you put it in ‑ ‑ ‑

MR PEARCE:   It is not that rigid requirement of section 65.  We know he is not bound to go through the hoops of section 65, but at the risk of using an inapt metaphor, the criteria pass through a different filter under 195A, maybe a colander instead of a sieve, to make a bad metaphor even worse.

GAGELER J:   The proposition you draw from S10 is what?

MR PEARCE:   That the criteria are adopted in a more flexible manner, not focusing on the individual circumstances of the recipient or proposed recipient of the visa, but rather on the public interest.  Now, I accept that that is a vague and general statement, but it is not necessary, in my submission, to make any more precise statement for the purpose of this case because this case, we say, is a clear case where the criteria plainly on any view could not have been met.  However, and however liberally and however flexibly you might want to impose or apply the criteria under 195A(2), that could not result in the grant of a temporary safe haven visa to the plaintiff in this case who did not need temporary safe haven.

FRENCH CJ:   So is it really a question of the relevance of the particular class of visa to the circumstances confronting the Minister?

MR PEARCE:   Yes.

FRENCH CJ:   So, for example, just taking an example at random, an independent overseas student’s residence class DD visa would be beyond the pale in this situation?

MR PEARCE:   Because it is in the regulations, he could do that, but I think we have to accept that there could be absurd results.  I think we have to accept that, and that is what Parliament must be taken to have intended by freeing the Minister of the power in the regulations.  Now, there might be questions – I do not know – of Wednesbury unreasonableness.  There might be other restraints.

HAYNE J:   He could grant a penniless Hazara Afghani one of the golden visas about capital investment in this country.

MR PEARCE:   Yes, he could.

HAYNE J:   I see.

MR PEARCE:   Yes.  But on the Minister’s argument, which is that he is not bound by any criteria in exercising the power under 195A, he could give a protection visa to an English backpacker who has overstayed his visa.

FRENCH CJ:   But you are saying there is a constraint found in the term “particular class” by reference to the purposes, at the very least for which the visa of the particular class being contemplated is ordinarily granted.

MR PEARCE:   Yes.

FRENCH CJ:   That might be divined from a variety of sources, including the criteria.

MR PEARCE:   Yes.  In particular, the language of the sections of the Act that we say create the criteria.  I have taken your Honours to a clear example in 36(2), but I would like now, if I might, to go to a less clear example in 37A, because 37A does not use the language of criterion, but in my submission it nevertheless by its terms does create criteria in the same way, for example, that 38B does.

If your Honours look at 38B, which is for maritime crew visas, the word “criterion” is not used there.  But we would say that a visa of that kind could only be granted to a member of a maritime crew to enter Australia by sea.  It is the clear meaning of the language that is used, in particular, in section 38B(1).  For the same reason, although the word “criterion” does not appear in 37A, we would say the section, subsection (1) in particular, creates criteria that the proposed recipient of such a visa needs temporary safe haven in Australia.  Those are ordinary English words, the meaning of which is not difficult to understand.

FRENCH CJ:   They are to be read by reference, inter alia, to the definition of “country concerned” and the references in subsections (3) and (4).

MR PEARCE:   In particular, subsection (3), where:

temporary safe haven in Australia is no longer necessary for the holder of the visa because of changes of a fundamental, durable and stable nature in the country concerned.

So we know here is somebody in a country outside Australia needing temporary safe haven.  That is the criteria stated in the Act for that class of visa.  Any doubt about it, in my submission, is relieved by two things, one of them a note which says the temporary safe haven visa is granted to a person – by the Minister, obviously – to give the person temporary safe haven in Australia, making clear, in my submission, that the expression “temporary safe haven” is not just a label any more than the expression “maritime crew visa” is a label in 38B.

FRENCH CJ:   But you are not identifying a criterion so much as the purpose of such a visa, are you not?

MR PEARCE:   It could be argued as purpose, I accept that.  At the moment, I am confining my arguments to power, and will say something about purpose in a while.  But it could be argued as a purpose, it could be argued as a precondition to the exercise that these conditions must exist before a visa of that kind can be given to someone, but in any event, binding on the Minister under 195A(2), however you want to label it.

HAYNE J:   How does the notion of temporary safe haven, which you say has some content conveyed by its words – let us come back to what that content is – but how does that sit with the finding in this case by the executive branch that this is a man to whom Australia owes no protection obligations?

MR PEARCE:   Well, there is nothing in the special case that bears in any way on the question whether he requires temporary safe haven.

HAYNE J:   But the fact that he has been found to be a person to whom Australia owes no protection obligations is irrelevant to the ‑ ‑ ‑ 

MR PEARCE:   If there were a proper consideration of whether he needed temporary safe haven that may not be irrelevant, but there is no evidence at all of any such consideration in this case.

HAYNE J:   There has been.  He has been through the whole assessment process, the assessment process and the IMR, and they have come out and said, no, this is not someone to whom Australia owes protection obligations.

MR PEARCE:   With respect, that is for protection visas, which are a different class of visa with different criteria where the focus is on the position of the individual and whether that individual is someone subject to persecution, whereas in temporary safe haven what you look at are the conditions prevailing in the country where those people are and, in effect, whether they need to be plucked to safety from that country, as happened in the case of the Kosovars for whom this class of visa was created.

FRENCH CJ:   So you say this extends to people who would not qualify for a protection visa but who are at risk for reasons other than, say, Convention risks if sent back?

MR PEARCE:   It still probably would not qualify for a temporary safe haven visa.

HAYNE J:   Why would not a temporary safe haven visa extend, for example, to allowing people to come onshore in Australia because of some great physical calamity in their country, whether it is the ‑ ‑ ‑

MR PEARCE:   It would, your Honour, yes.

HAYNE J:   ‑ ‑ ‑ Tokyo earthquake or the Solomon Islands tsunami, bring them ashore whilst things in their country return to – what is the expression - or there is a fundamental, durable ‑ ‑ ‑

MR PEARCE:   Durable and stable nature.

HAYNE J:   ‑ ‑ ‑ stable change in their country that permits them to go back?

MR PEARCE:   With respect, I agree entirely with your Honour’s formulation, and that is what temporary safe haven visas are for, and that is made very clear in the legislative history.  If it is convenient I will take your Honours to that legislative history where these points are brought out with some clarity and do give some added content to the meaning of the expression “temporary safe haven” in the legislation.  So, your Honour, if we could go ‑ ‑ ‑

FRENCH CJ:   I do not know that that aspect is particularly contentious, is it, in terms of the history and purpose of the ‑ ‑ ‑

MR PEARCE:   I do not think so.  Perhaps I will give your Honours the references.  The references in particular in the second reading speeches are the speech of Mr Ruddock, the then Minister, on 11 May 1999 at tab 14 and the speech in the Senate of Senator Campbell on 21 April 1999.  That is No 13 in our list of references.  These make very clear this class of visa was created in response to the humanitarian crisis then prevailing in Kosovo and it was created to bring these people to Australia for a temporary period and then send them back.  That of course is then made very clear in Subdivision AJ, and if your Honours look at Subdivision AJ where the bar under 91K appears, and those provisions make it clear that a person with a visa of this kind cannot apply for another kind of visa and people, once their visas have run out, will be returned.  That gives more content, in my submission, to the meaning of “temporary safe haven” in 37A. 

So, your Honours, that is what I intend to say about power.  I will address separately the question of purpose, mindful of the fact that depending in particular on how you might interpret section 37A and the words “temporary safe haven” there that some of these arguments might be available in that context or under that heading as well.

HAYNE J:   If the Minister has power to grant a temporary safe haven visa, what is it about the particular facts of this case that would make this an exercise of the power that is unlawful?

MR PEARCE:   There is nothing in the special case that gives any credence to the suggestion that he needs temporary safe haven.  He is not applying ‑ ‑ ‑

HAYNE J:   That seems to me to be a question about power.

MR PEARCE:   Yes.

HAYNE J:   But, if the Minister has power to grant a temporary safe haven visa regardless of whether, as your argument would have it, the man is in need of what you say is an ordinary English expression “temporary safe haven”, end of game, is it not?

MR PEARCE:   I accept that, your Honour, yes.

FRENCH CJ:   You may have relegated this aspect of it too quickly into purpose, I suspect.

MR PEARCE:   Well, it is another way, I think, really ‑ if you do not accept that a requirement of temporary safe haven is a criterion for the grant of the visa you can, nevertheless, say that is the purpose for which the Minister may exercise any of his powers, be it under 65 or be it under 195A, to grant a visa of that kind.  So, that is how we would put it in the alternative.

GAGELER J: Is it any part of your argument to say that the purpose of granting the temporary safe haven visa was really not to allow the plaintiff to stay in Australia ‑ that was achieved by the bridging visa ‑ but to invoke the bar in section 91K?

MR PEARCE:   Yes, that is precisely our argument.  Your Honours know the cases – Northern Land Council, Thompson v Randwick.  It need not be the sole purpose.  It need only be a substantial purpose of the exercise of a power.  If it is improper, it vitiates the exercise of the power.  And, if I might just go briefly back to the materials that we say bear on the question of purpose?  I referred to them earlier.  They are in the special case book.  I just remind your Honours of what was said in the ministerial press release in November 2011 at special court book 18, headed “Bridging visas” – seven or eight references throughout there to bridging visas.

At the risk of stating the obvious, plainly, the obvious and appropriate visa to be granting, as recognised in the press release, until then somebody came up with the idea of also granting a temporary safe haven visa sometime in the early part of April, if not before that.  We see that from the ministerial submission at 22 to 23, in particular, paragraph 9:

The grant of a TSHV to these IMA persons will bar them from lodging further onshore visa applications.

It could hardly be clearer what the purpose of the grant of that visa was.

BELL J:   Surely, it is clear from the Minister’s affidavit.

MR PEARCE:   It is that, too.  Yes, I was going to get to that.  I am just going back over it.  There is also the letter, the Departmental letter, at special court book 40:

You should note that you will not be able to lodge a valid visa application –

So, in my submission, there is really no issue.  That is why that visa was granted.  If am wrong and if the Minister has power to grant a visa of that kind under 195A – either because he is not constrained by any criteria or because there are no criteria contained in 37A – nevertheless, 37A, we would say, states a purpose for the exercise of the power to grant a visa of that kind.

CRENNAN J:   The Minister says that the reason for doing what he did and the way that he did it is to allow the existing processes to come to a conclusion.  He is referring, is he not, to the possibility that he would have power under 46A(2).

MR PEARCE:   No, not anymore, because he has now become a lawful non‑citizen.  You see, that is the point, that power has gone.

CRENNAN J:   That is what I am trying to work out.

MR PEARCE:   Yes, that power has gone.  He has exercised the 195A power; that has gone.  All he can be contending is that he has up his sleeve, or is going to produce, a new process.

CRENNAN J:   So those processes come to a stop?

MR PEARCE:   Yes, that is what we say follows.  The repeated assertions that this will keep the processing of your existing claims, we say, cannot be correct.  We say those claims must have come to an end.  Now, it would be open to him, would have been open to him, to put on material to say, I have got a new system under 91K that mirrors the system under 42A(2) and I am going to provide that anything previously done under 42A(2) carries over under 91K and that is how I am going to preserve it.  But this is a matter of surmise and speculation.  There is nothing at all in the special case about that.

Your Honours, there is another point about purpose and it is this.  Looking at it more broadly, not focusing on the question of whether there is a purpose for the grant of a visa of a particular class but looking more generally at the purpose for the exercise of the power under 195A(2), we would say that purpose is to convert an unlawful non‑citizen into a lawful non‑citizen, to move them from section 13 of the Act to section 14 of the Act.  That was not the purpose for which the Minister exercised the power to grant the temporary safe haven visa.  He exercised it and, I think, it is clear for the purpose of imposing a statutory bar.

We just say this about the statutory bars.  Nowhere in the Act is the Minister invested with a power to impose a bar.  Where he has power to lift a bar, he is not given power to reimpose a bar.  Parliament has not given the Minister that power to impose a bar.  You can go through all the statutory powers.  I think we have referred to them in our written outline.  They are set out there in our written outline.  There is no power in the Act vested in the Minister to impose a statutory bar.

Now, your Honours, I think that is all I want to – I explained earlier about the one decision or two decision point, the severability point.  We have done some written submissions about that.  I will not repeat them.  Subject to what my learned friend says, we do not think this will affect us in a practical way so I do not propose to say anything about that but we may want to say something in reply.  If the Court pleases.

FRENCH CJ:   Thank you, Mr Pearce.  Yes, Mr Solicitor.

MR GLEESON:   Your Honours, in terms of what issues the Court needs to dispose of and whether severability is a necessary issue, could I ask your Honours to go to the special case to the amended application at page 3 and direct your Honours to paragraphs 3 and 4 which were added by amendment?  In our submission, the severability issue cannot be disposed of as irrelevant if the plaintiff persists in pressing for those declarations.

If the plaintiff were successful that the issue of the TSH visa was bad, the plaintiff could not get the declarations in 3 and 4 unless the plaintiff also established that the bridging visa had a separate valid life.  Because of the date this application was made, 18 September 2012, the only thing the plaintiff had other than the impugned TSH visa was the then bridging visa which, we submit, was inseverably intertwined with the TSH visa.

HAYNE J:   I had understood your opponent to say something along the lines of:  even if that were so there had been some subsequent bridging visa upon which he could – to say relies is putting the point the wrong way – but that cured the difficulty in some way.

MR GLEESON:   As we have indicated in ‑ ‑ ‑

CRENNAN J:   You agree, do you not?

MR GLEESON:   We agree that it could in the future cure the difficulty.  It does not presently cure the difficulty because there has not been a further protection application made on the basis of that visa and so it is perhaps a technical point, but the relief in 3 and 4 could not be granted on any basis on the way the issues are currently framed unless the Court dealt with severability on the further assumption the TSH was bad.

FRENCH CJ:   And that goes to question 2 in the questions in the special case?

MR GLEESON: Yes, exactly, because if we are correct, the answer to question 1 is no and the answer to question 2 follows as no. If we are incorrect on question 1, question 2 cannot be decided in the plaintiff’s favour without addressing severability. Your Honours, the place I wish to start before coming to 195A which is critical, is just to seek to characterise what the Minister was seeking to do in the public interest under section 195A. We disagree with the characterisation that has been placed on it and so I wish to deal with that first.

Our submission is that there were three public interest goals that the Minister brought to account.  The first goal was that it was appropriate to release a substantial number of persons from detention for the purpose of easing pressure on the system and conferring the benefit on those who were released, and that would clearly be a public interest goal beyond question.  The evidence for that, being one of the public interest considerations, is in the Minister’s affidavit at page 89 in paragraph 3.

That being a goal at a general level to release a substantial number of persons, it immediately gave rise to a question how to select persons who would be the beneficiaries of it, and that also was a question to be looked at through the public interest prism, and the answer to that is found at page 30.

HAYNE J:   Just before you part from paragraph 3 of the Minister’s affidavit at page 88 ‑ I doubt we need to confront it – there does seem an awkward tension between the notion of a mandatory, that is to say, legislatively mandated detention system, and releasing pressures on it, but perhaps we do not need to get there, Mr Solicitor.

MR GLEESON:   Perhaps not in this case, your Honour.

HAYNE J:   In terms, it seems to be the notion of a ministerial dispensation from statutory requirement.

MR GLEESON:   Your Honour, another way of looking at it would be an interrelationship between the overriding force of law and the duty of the Executive to carry out and implement all the law.  In a situation where the law says people must be detained, there is a practical question of having enough facilities in which to detain them, and at a point when the facilities may not be able to deal with the number of persons there is an executive practical question which is do I build more and how or are there means by which there are procedures in the Act – and they must be procedures in the Act – which would allow a release of those persons?

I was then asking your Honours to go to page 30, which comes to the resulting aspect of this first consideration which is, if people are to be released, how would that group of people be selected?  The first thing that appears is that at that stage the 291 persons, reduced to 278, were offshore entry persons and that meant of course they had no right to apply for a visa by reason of that fact of the nature of their entry, section 46A(1). 

The next thing we know about them is in paragraph 3, that they were persons who had been in detention for lengthy periods, and that would be a relevant matter to take into account as well in the public interest.  The next matter is that they were all persons who had made protection claims.  So they were a subset of the larger group in detention; they were all persons who had made detention claims. 

The next aspect is that by reason of the Court’s decision in M61 they were entitled to a procedurally fair hearing of their non‑statutory assessment of their claim with a view to a possible endpoint which was a lifting of the bar under section 46A(2).  So the processing that is spoken of here is non‑statutory processing by the Department.  It was bound to be procedurally fair.

HAYNE J:   The whole point of the offshore processing case, I think, Mr Solicitor, was to say that these persons were detained pursuant to statutory power and could remain detained only so long as statutory processes were being undertaken, the statutory process being undertaken was consideration of whether to lift the bar.  This expression “non‑statutory processes” is not, I think, entirely apposite.

MR GLEESON:   I accept your Honour’s correction.  The process being conducted, which the law required to be a procedurally fair process was a process which had as its endpoint a minister who had publicly stated, I will be considering claims to lift the bar, making a decision to lift the bar or not lift the bar under section 46A(2).  That was the process that was in play.

The next aspect of these persons is that they were in varying stages of that process, which your Honours will see from pages 37 to 38.  Under the third box, 155 of them were in a stage described as “1A met” which was that the process carried on by the Department had moved to a very advanced stage where there either was or was likely to be a recommendation to the Minister to lift the bar.  They were people who, if the Minister were to receive and accept that recommendation, might shortly have the bar lifted, would make their formal application for a visa which presumably would most likely be granted, and they would then obtain a full protection visa.

Other people were then at various different stages of the process.  There were 30 people who were at a stage of “Merits Review” which is where they had received an adverse outcome from the process and they were challenging it.  “Negative Merits Review” of 21 had received a negative merits review but still had the possibility of whether they were going to judicial review.  Sixty seven, including the present plaintiff, were “At Judicial Review” and then there were five who were at “Negative Judicial Review”. 

I go to that detail for this purpose, that the decision that we – release 278 persons has a group character to it that they share this feature that they are at various stages of the process which currently has as its endpoint a possible exercise of favourable statutory power under section 46A(2).

Just to conclude this first public interest consideration of it would be in the public interest to release these persons, this category of persons that I have identified, to achieve their release any visa selected from the category of visas would have achieved that part of the public interest goal.  Any visa would have converted them into lawful non‑citizens and required their release from detention.

CRENNAN J:   What about the impact of that conversion from falling under section 14 to falling under section 13?  What about the impact of that in relation to what you have referred to as the process, looking at pages 37 onwards, and the process being the statutory process as to whether to lift the bar under 46A(2)?

MR GLEESON:   Your Honour, that is the second public interest consideration I am coming to now.  I am perhaps proceeding a little slowly, but I was seeking to identify that the first consideration is release.

CRENNAN J:   Release.

MR GLEESON:   Release can be achieved by any visa, so then another consideration comes in which is which visa from the possible range of classes – or visas, we would submit – should I be considering in the public interest and what further public interest considerations might bear upon that selection.  One point where we clearly differ from the plaintiff is the plaintiff says the purpose of 195A is simply to facilitate release from detention.  We would submit that the public interest prism is reflected not just in “Will I release?”, but through which visa, and that necessarily brings one to a question of what would be the consequences of a choice of particular visas.

HAYNE J:   How does 195A speak at all to detention, except that it deals with a class of persons who is in detention? Section 195A(2) is concerned with a grant of visa, not with a release from detention, surely, Mr Solicitor?

MR GLEESON:   It is a precondition for the exercise of the power that the person is in detention.

HAYNE J:   Yes, I understand that.

MR GLEESON:   What the power does in a dispensing character is to allow for the grant of a visa of a particular kind.  The effect of a grant of a visa will be to make the person lawful as a citizen under section 13.  Once they are lawful, the basis for the detention is removed.

HAYNE J:   The grant of a visa is a grant of a permission to enter or remain in Australia.  So much is self‑evident, yes?

MR GLEESON:   Yes.  Can I come to the second of the three public interest considerations?  The second consideration is that it was appropriate to seek to preserve the processing which was in place and to not waste the resources of the Department and the courts which had gone into that processing.

FRENCH CJ:   Now, you mean by that to prevent persons granted visas from accessing a new stream for consideration of their protection visa claims?

MR GLEESON:   It has two sides to it.  That is one side, and we do not shy away from that.  That side of it says if I were to choose any visa in the smorgasbord other than a TSH, the result will be they will then have a right to lodge an application for a visa, which will attract all the statutory provisions for it, and in the course of the processing of that application, it would go too far to say that everything that had been done before would become irrelevant.  Its status would become weaker.  It would become perhaps information which might be used in the new process, but as a process which was directed towards, as Justice Hayne put to me, a lawful consideration of a dispensing power, it would lose its endpoint.

HAYNE J:   Can it be put in this way, that what is sought is in effect certiorari to quash.  Quash what?  The decision and the decision was a composite having two aspects, but if you are to quash anything you quash the decision not a bit of it.  Is that the way it would have to be put, I think?

MR GLEESON:   Yes.

HAYNE J:   Now, I think that turns not on notions of severance so much as – and maybe I am starting at shadows – but I think it depends on identification of what is the decision and you say single decision record, decision record, so intertwined you cannot read that as a series of decisions.

MR GLEESON:   Yes, and the intertwined nature from the whole concept of it being I am not simply giving you a completely independent bridging visa with the consequences that flow from that.  The whole purpose of attaching the two in the one decision is to negative what would be the ordinary consequence of a bridging visa.  Sometimes in these cases it is tested almost with an officious bystander, which is what would the decision‑maker have done if told that this part of the decision was going to be beyond power?

FRENCH CJ:   …..implied condition on the exercise of the power, is it, you are putting?  In other words, the Minister is saying by implication, “I will grant you a bridging visa on condition that the temporary safe haven visa is effective”.

MR GLEESON:   It is one way of ‑ ‑ ‑

FRENCH CJ:  It is implication, yes.  He said in his affidavit, “I would not have done this but for that”.

MR GLEESON:   Yes, yes.

GAGELER J:   The same point can be just put as an error of law, can it not, in the grant at the bridging visa?  If the bridging visa is only granted on the Minister’s view that the temporary safe haven visa is valid, then if the Minister is wrong in law the decision to issue the bridging visa is based on an erroneous view of the law and beyond jurisdiction perhaps for that reason.

MR GLEESON:   Yes.

GAGELER J:   That is even treating it as a separate decision.

MR GLEESON:   Yes.  Well, they are the two ways we put that point.  That is what we would wish to put, your Honour.

FRENCH CJ:   Thank you, Mr Solicitor.  Yes, Mr Pearce.

MR PEARCE:   Ms De Ferrari will make the reply, your Honours.

FRENCH CJ:   Yes, thank you.

MS DE FERRARI: Your Honours, can I start with power again. The power in section 195A(2) must be read in the context of subsection (3) of the Act. That is clear. Subsection (3) maintains the Minister expressly bound by various provisions of the Act. Section 29 as well, which relates to all the powers of the Minister to grant a visa starts with the words:

Subject to this Act, the Minister may grant a –

visa and the entire scheme of the Act as we have submitted, starting from the objects in section 4 and then the binary system under sections 13 and 14, is one of granting a visa to make the person whilst in a migration zone a lawful non‑citizen. Justice Hayne has pointed out that the starting point for section 91L is a different starting point than the starting point under section 46A(2), that is, this is a person who previously held a temporary safe haven visa.

What derives from that – I might also point out that the two provisions are not identical bars in the sense that they bar all applications for a visa. Section 91K has a carve‑out in allowing continuing applications for temporary safe haven visas to be valid. So not only do they have a different starting point, they are also not co‑existing as to the extent of the bar.

Now, it is clear because it is a different starting point that what the Minister’s evidence and the submissions are directed to when they say for the purposes of continuing your process, it is not a continuance of a process, it is a new process. 

Now, it is a new process to inform consideration of what – the only thing that it can inform is consideration of the Minister’s decision under 91L.  How is that to be done?  The current process for dealing with a claim, starting with the refugee status assessment and the independent review process have concluded, and there is simply nothing that attaches those processes to any new consideration under a new starting point under the statute.

It is also the case that it is doubtful whether this is in fact a statutory process.  The Solicitor started by saying it is a non-statutory process, although he then softened that by saying it is directed to another statutory endpoint.  But it was crucial in Plaintiff M61, in my submission, that the person was in detention.  It was that fact that made the processes that were being engaged ones that had to be under the Act and statutorily fair, because it was only in that circumstance that the continuing detention could be lawful.  Here, there is no detention.  The power is gone and what there is is an assertion that somehow what was done before was somehow inform a new process of which there is no evidence, if you are successful in the judicial review process.

Can I say something about Plaintiff S10, your Honours, in particular paragraph [99]? That decision was concerning all the dispensing or empowering provisions, as their Honours differently called them, not just section 195A. So again, to pick up something that was said by your Honour Justice Hayne this morning, it was concerning as well a dispensing provision like section 417.

Now, your Honour Justice Hayne asked whether there was a difference between 417 and 195A(2).  Section 417 allows the making of a more favourable decision for the applicant.  Given that the point at which 417 comes in is review of a decision by the Refugee Review Tribunal which one gets to after one has gone through the process of being able to make a lawful application under the Act, having it refused under section 65 and being able to make a lawful application for review of the Refugee Review Tribunal, the only decision more favourable that can be substituted, if it is a decision to grant a visa, is to grant the visa that was originally asked for by the same process that led to the review.

There is no other more favourable decision than the decision that the Refugee Review Tribunal is considering as to whether that person should be granted the visa of the class for which that person applied for. Section 195A(2), in my submission, the words directed to:

this section applies a visa of a particular class (whether or not the person has applied for the visa) –

what is liberalised is the fact that it does not have to be connected with the application for a particular visa or a visa of a particular class.

So 417 is a dispensing provision, but is limited. The kind of decision that you might make is a more favourable one to grant the kind of visa that was applied for. Not so 195A(2), and subsection (3) of 195A also indicates that that is the limiting liberalising effect of section 195A. You are not bound by the machinery provisions of application for a visa and you are not bound to reach the state of satisfaction that section 65 mandates. You do not have that duty. But everything else that is a duty or a precondition to the exercise of your powers under this Act to grant a visa, like section 69 clearly states in the starting words, you remain bound by.

There was then a submission made that if section 65 was not construed as the Minister submits then it would basically have no effect. Not so. Clearly section 65 – I apologise, I withdraw that. It was then said that if the disapplication of section 65 by section 195A(3) was not given the extended effect that the Minister contended, it would have no relevant work to do under the Act at all, but clearly that is not so because what is disapplied is the criteria in the regulations for the particular classes of visas.

As my learned senior has said, either visas created by the Act can have criteria under the regulations, or new classes can have criteria under the regulations, but not only the criteria.  What is also dispensed for is conditions for the granting of those visas as provided by section 40 of the Act.

So there is a lot of work that is done by the dispensing part of subsection (3)which is not at all rendered nugatory if one does not actually disapply section 65 in the way that the Solicitor has said, that is, you make everything non‑binding.  Although subsection (3) says you are bound, you make it not bound.  There is, in my submission, a distinction in the way that the Court in Plaintiff S10 talked about the plaintiff’s personal considerations and dispensing from having to consider those and whether there is something in the nature of a precondition to the exercise of the power.  Now, the precondition to the exercise of the power might look at the facts of that case, but that is not equivalent to saying you are relieved from looking at the personal circumstances of the plaintiff, it is a precondition on the exercise of the power. 

On purpose we have noted that under the Act there is a limited purpose, in our submission, for the grant of every visa by every power by the Minister and that is simply to make the person a lawful non‑citizen whilst in the migration zone.  That is not enlarged by looking at matters of public interest in the preservation of resources, assuming that there are any resources preserved given that it is a new process.

Two more points - on the decision in Nystrom, your Honour, and whether two visas can be granted by the exercise of one power, Nystrom was a case of two visas granted by operation of law.  It did not consider a power of the Minister to grant two visas.  Now, it is clear under the Act that a person can hold two visas.  Nystrom makes that clear and certain provisions of the Act make that clear.  What is in issue is whether any of the four powers of the Minister that we have identified permit the grant of more than one visa by the…..exercise of the power.  For the reason we have given in the written submission, the answer is no. 

Sections 68 and 82 which deal with when visas, in effect, by their language make clear that when looking at a substantive visa and a bridging visa they are looking at visas that come into existence at different points in time because if they come into existence at the same point of time, then section 82(2), for the same reasons section 82(3), for the same reasons the Court gave in Nystrom in respect of section 82(2) would have no sensible operation.  So section 82 and section 68 when they are looking at postponing the effect of a bridging visa, vis-à-vis a substantive visa, necessarily contemplate the grant of the two visas at different times.  So that is no answer to the question of whether you can simultaneously grant two visas.

On severance, your Honours, in our submission, one starts from the decision instrument that was made – that is at special case book 33 – it is headed “Decision Instrument” and then one goes to section 46 of the Acts Interpretation Act which enacts a legislative intention that every such instrument as this, to the extent that it is beyond power, is to be read down.  Here, the severance is a simple case of blue‑pencil severance.  It is not a complex severance that needs to reword something to achieve substantially the purpose that was intended.

BELL J:   Paragraph (2) of the decision instrument makes clear that the determination of public interest has been, with respect to the Bridging E class visa, made in a context of a decision to grant the persons, the subject of the schedule, both the TSH and the Bridging E class visa.

MS DE FERRARI: Yes, your Honour. The question is – if I can pick up the way, perhaps, that Justice Gageler put it – if I misapprehend the power that I am exercising and I am actually granting two visas, although the power only permits me to grant one visa, is that misapprehension something that necessarily brings down the whole exercise of the power? In my submission, no. That is not how the section – section 195A – is conditioned. It is not conditioned on your proper understanding of the limits of the power.

The cases are clear that if you do something for an improper purpose, that improper purpose, or something beyond power, invalidates that part of our decision.  Then it is a separate question which does not depend on how the decision‑maker intended to craft the instrument, but how the instrument is actually crafted, as to whether you have granted validly something or not.  Here, there is no doubt that the bridging visa can validly operate entirely separately from the temporary safe haven visa.

So yes, in paragraph 2, your Honour, there is a linking in the way that the Minister considered the power, but that misapprehension by the Minister of the way he intended the power does not invalidate necessarily the whole exercise of the power.

BELL J:   But the linking was with respect to the Minister’s determination of the public interest for the purpose of the exercise of the power.

MS DE FERRARI:   Yes, your Honour.  In doing that, he misunderstood that he was able to grant a temporary safe haven visa such that it would operate in a limiting effect upon the granting of the bridging visa.  If that is so, then that still remains the question, does section 46 of the Acts Interpretation Act permit – in fact, require to read this decision instrument within power to the extent that it can be read within power?

The question is did the Minister also think that it was in the public interest to grant the plaintiff a Bridging Visa E?  Yes, he did, but he misunderstood that he could do so in a way that was limited by a temporary safe haven visa.  But there is no indication that he did not consider that the grant of the bridging visa itself was in the public interest.  To the contrary, the press release is all about how it is in the public interest to grant to these persons a bridging visa.

So whether it is by operation of section 46 of the Acts Interpretation Act or by operation of the common law - and the common law position is reflected in what was said by this Court in Harrington v Lowe (1996) 190 CLR 311 at page 328, the final paragraph, as to the common law in Australia. I will not read that but that is the common law approach and it has the two possibilities, a simple blue‑pencil approach, which is all that is needed in this case or the substantial severability test derived from the decisions of the Privy Council in the House of Lords there referred.

That is the position at common law.  I accept that the decision in Harrington v Lowe again concerned a legislative instrument but that is the position at common law in respect of purely administrative instrument.  The decision of R v Ng of the Court of Appeal of Victoria (2002) 5 VR 257 makes clear that that is so. If the Court pleases.

FRENCH CJ:   Thank you, Ms De Ferrari.  The Court will reserve its decision.  The Court adjourns until 10.15 on Tuesday next, 12 February.

AT 1.02 PM THE MATTER WAS ADJOURNED