Plaintiff S10/2011; Kaur; Plaintiff S49/2011 and Plaintiff S51/2011 v Minister for Immigration and Citizenship and Anor

[2012] HCATrans 18

[2012] HCATrans 018

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S10 of 2011

B e t w e e n -

PLAINTIFF S10/2011

Plaintiff

and

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Defendant

SECRETARY OF THE DEPARTMENT OF IMMIGRATION AND CITIZENSHIP

Second Defendant

Office of the Registry
  Sydney  No S43 of 2011

B e t w e e n -

JASVIR KAUR

Plaintiff

and

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Defendant

SECRETARY OF THE DEPARTMENT OF IMMIGRATION AND CITIZENSHIP

Second Defendant

Office of the Registry
  Sydney  No S49 of 2011

B e t w e e n -

PLAINTIFF S49/2011

Plaintiff

and

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Defendant

SECRETARY OF THE DEPARTMENT OF IMMIGRATION AND CITIZENSHIP

Second Defendant

Office of the Registry
  Sydney  No S51 of 2011

B e t w e e n -

PLAINTIFF S51/2011

Plaintiff

and

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Defendant

SECRETARY OF THE DEPARTMENT OF IMMIGRATION AND CITIZENSHIP

Second Defendant

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

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 9 FEBRUARY 2012, AT 10.17 AM

(Continued from 8/2/12)

Copyright in the High Court of Australia

__________________

FRENCH CJ:   Yes, Mr Gageler.

MR GAGELER:   May I add one footnote to what I was saying yesterday and then take up where I left off.  I had identified the first of two critical questions as being whether these particular non‑compellable powers on their proper construction are conditioned by a requirement of procedural fairness.  I had then gone on to identify a class of decisions thrown up by the four cases before the Court where the Minister personally either at step (1), the decision to consider or at step (2), the decision to exercise or not to exercise, had made a decision in the individual case.  I had made the point that apart from relief, that question of construction is the only question of principle that arises in respect of those decisions.

I had said that there were four decisions in that category.  There are actually five and the one that I omitted to mention was in Plaintiff S51.  The decision recorded at page 599, a section 195A step (2) decision.  I then identified the other critical question as whether by issuing or adopting the guidelines, the Minister, in fact, made a statutory step (1) decision to consider cases in one class and not to consider cases in another class and I was about to move to the category of decisions thrown up by the cases before your Honours where that question comes into play.  That category of decisions is where an officer of the Department in compliance or purported compliance with the Minister’s guidelines decided not to refer a matter for the consideration of the Minister and to my symmetry there are also five decisions thrown up by the four cases before your Honours within that category.  Can I indicate where they are. 

In Plaintiff S10, it is the decision recorded at page 369.  Your Honours need not turn to these.  That was a section 48B guideline decision.  In Plaintiff S43, it is the decision recorded at page 143, a section 351 guideline decision.  In Plaintiff S49, it is the decision at page 273, another section 48B guideline decision and then in Plaintiff S51, there are two such decisions.  There is one recorded at pages 439 through to 443, another section 48B guideline decision and a decision recorded at page 359, a section 195A guideline decision. 

Now, your Honours, depending on the resolution of that question, the factual characterisation of the Minister’s decision is either a statutory decision or not a statutory decision; one can go either of two routes.  Route one is the simplest.  If by issuing or adopting the guidelines the Minister in fact made a statutory step (1) decision to consider one class of case but not to consider another class of case, then the question of the requirement or non‑requirement for affording procedural fairness in the application of the guidelines is, in our submission, entirely resolved by the first question of statutory construction, that is to say, if the statutory power of the Minister to make a step (1) decision on its proper construction is conditioned by a requirement that the Minister afford procedural fairness and the Minister makes a statutory step (1) decision that in its working out in practice does not afford procedural fairness in a particular case, then the Minister’s decision in its application to that case is beyond the scope of the power conferred.

If, on the other hand, the statutory power of the Minister to make a step (1) decision on its proper construction is not conditioned by a requirement to afford procedural fairness, then the exercise of the power in issuing or adopting the guidelines cannot introduce such a requirement.  I will say something in a moment about the notion of legitimate expectations.  But that is route one.  It is a very simple route.  If it is a statutory decision and a statutory power is conditioned by procedural fairness, then procedural fairness applies.  It could be made more complicated but, your Honours, we see it as very simple.

Route two is different.  If the resolution of the question of fact is that by issuing or adopting the guidelines the Minister, in fact, was not making a statutory step (1) decision but was taking the antecedent step of giving instructions or guidance to his Department as to when he was to be briefed with material as a prequel to being in a position to decide whether or not to make a statutory step (1) decision, then two further questions arise and they are the questions that have brought South Australia to Court today, but they are questions which, in our submission, are readily answered.

The first question is whether it is within the scope of the non‑statutory executive power under section 61 and section 64 of the Constitution for the Department to seek to comply with the Minister’s non‑statutory request and, in our respectful submission, the answer to that question, faintly raised in our learned friend’s submissions but the subject of a section 78B notice, is obviously yes. The existence of a non‑statutory executive power to inquire, to consider, to report, to recommend to ministers on the possible exercise of statutory power or the possible exercise of legislative power is recognised in all of the royal commission cases starting with Clough v Leahy and going through to ACTU Solo.  We have given your Honours the references at various places in footnotes at page 9 of our written submissions.  But the non‑statutory function of a department in inquiring, considering, reporting, making recommendations and otherwise assisting a minister on the possible exercises of a minister’s statutory functions is judicially acknowledged in the judgment in Peko‑Wallsend in the passage that your Honours have already been taken to by my learned friend, 162 CLR 24 at pages 65 to 66.

It is inherent in the structure of section 64 of the Constitution, was inherent in the notions of responsible government as inherited from English and colonial developments in the 19th century and has been exercised daily since Federation starting, I should point out, from day one with my predecessor Sir Robert Garran, the very first Commonwealth public servant who was inquiring, considering, reporting and making recommendations well before there was any Commonwealth legislation in place at all. That is question one.

Question two, going down this route, is then whether being within the scope of sections 61 and 64 of the Constitution that non-statutory executive power to inquire, consider, report and make recommendations to ministers on the possible exercise of statutory power is itself in some way conditioned by a common law requirement to observe procedural fairness and our answer to that question is no, not because of some global proposition that an exercise of non‑statutory executive power can never be constrained by a requirement of procedural fairness. We do not need to go that far for this case. It is because of the narrower proposition that the action of the Department in such a case is entirely intramural. It can go nowhere, save insofar as it results in some statutory action, or inaction, on the part of the Minister.

There has been much reference in our learned friend’s submission to the gatekeeper role of the Department in this case, but the significance of what the Department does or does not do lies entirely in it leading to statutory action, or inaction, on the part of the Minister who has no duty under the Act to do anything.  We have, in our written submissions in paragraph 29, extracted an important statement of principle from the judgment of Justice Brennan in Ainsworth.

HEYDON J:   It is paragraph 28.

MR GAGELER:   A typographical error, sorry, your Honour.  I do not propose to read that or the accompanying text, your Honours, but the point is that the giving of the advice cannot possibly be conditioned by a requirement of procedural fairness separately from the exercise of power by the Minister.  It is one step removed from the exercise of any form of power that has – exercise or non‑exercise of any form of power that has a consequence. 

In footnote – I hope I have got the right note – footnote 39 of our written submissions we have mentioned two cases that your Honours may take note of.  I do not want to take you to them, but they were both cases in intermediate Courts of Appeal where there were confidential reports given to ministers, commissioned and provided to ministers, which were held not to attract procedural fairness – in our respectful submission, correctly held not to attract procedural fairness – unless and until they were acted upon by the relevant ministers.  There may be a question as to whether the guidelines are truly guidelines or whether they are instructions and, in truth, there may be elements of both, to varying degrees, in each of the guidelines.  But to the extent there is such question it is a question that, in our submission, is one between the Minister and the Department.

CRENNAN J:   Just on that issue, may I ask you this, Mr Gageler.  The guidelines indicate that the Minister can only exercise the discretionary powers under the relevant sections on the basis of information from persons who may benefit from the exercise of that discretionary power.  Hence, during the course of yesterday, the Court was taken to several parts of the guidelines which referred to dealing with the information obtained on the basis of the merits. 

MR GAGELER:   Yes.

CRENNAN J:   Now, I wanted to ask you whether that makes some difference to your route two and your argument generally about the characterisation of the guidelines because that suggests a close connection between the Minister’s ultimate exercise of the discretionary power and the obtaining of and passing on of information to the Minister for the purposes of a factual exercise in relation to the discretionary exercise of the power.  My concern, if I can flag it, is that once one has a process which recognises the need to obtain the facts in order to exercise a power, is it a flawed process if there is no provision for input from the person who may benefit from the exercise of the discretionary power on factual matters?

MR GAGELER:   Your Honour, we answer that at a level of principle, at a very high level of principle by saying it may or may not be an administratively perfect process.  The question is whether it is a legally flawed process and the question of whether it is a legally flawed process necessarily starts at the level of construction, in our submission.  What is it that is required of this – of an exercise of this power by the statute on its proper construction?  The fact that in the administration of the statute a process is set in train that has elements of procedural fairness built into it does not elevate the statutory requirement.  In essence, that is my answer.

CRENNAN J:   That is how you get to your distinction between an exercise of a section 195A power in the context of section 189 detention and the circumstances of M61.

MR GAGELER:   Going to your Honour’s question about – obviously the section 195A power is the more difficult of the powers for me – I fully acknowledge that – but the section 195A guidelines, your Honour, are not guidelines that necessarily depend on any analysis of material put forward by the person who is in detention and they are guidelines that involve a consideration of section 195A in every case, whether or not there is a request.  That is really going to a factual response to your Honour.

FRENCH CJ:   If there be an implied requirement for procedural fairness, not excluded by the statute, just take that premise for a moment ‑ ‑ ‑

MR GAGELER:   Yes.

FRENCH CJ:    ‑ ‑ ‑and there be a failure of procedural fairness in the departmental process, you accept that bites at the point of the ministerial decision?

MR GAGELER:   Definitely, yes. 

HAYNE J:   Well, that acceptance treats what the Department has done as not relevantly separate from or to be distinguished from what the Minister has done, does it not?

MR GAGELER:   It accepts that the departmental process informs the decision of the Minister.  If I can separate the two classes of decisions that I have identified, your Honour.  It accepts that the departmental process of collating information and providing a submission informs the decision of the Minister.  If the decision of the Minister is conditioned by a requirement for procedural fairness and in that departmental process that informed the decision of the Minister procedural fairness was not afforded, then the decision is outside the scope of the power. 

Now, separately with the class (2) decision, your Honours, if the Minister in making the step (1) decision is required to afford procedural fairness – that is, in making the decision whether or not to consider as required – the Minister is required to afford procedural fairness and the Minister makes that decision in terms which require a departmental process for it to be worked out and in that departmental process procedural fairness is not afforded, then again it is the Minister’s statutory decision as worked out that does not comply with the statutory requirement.

HAYNE J:   How does that sit with the proposition you gave at the end of the second element of route two, the proposition that the Department’s action in the circumstances then identified was to be regard as “entirely intramural”?

MR GAGELER:   Because route two has as its starting point that the Minister has not got at that stage to the point of making a statutory step (1) decision.  All he is doing is telling the Department when he wants to receive information and when he does not.

KIEFEL J:   I am a little unclear about this.  Is your threshold proposition or question one of statutory construction to see whether or not procedural fairness attaches to the statutory provisions?

MR GAGELER:   Yes, your Honour.

KIEFEL J:   In which case, the actions of the officers, any actions, are to be assessed according to procedural fairness?

MR GAGELER:   Yes.

KIEFEL J:   Your alternative proposition is where that is not the case and you are looking to see whether an obligation for procedural fairness arises by reference to what the Minister has represented in the guidelines?

MR GAGELER:   Yes.

KIEFEL J:   And it is in that context that you step back the Minister’s decision as an entry upon the task at a later point and the assessment process is seen as informative to the Minister and intramural towards that latter step.  Is that how it operates?

MR GAGELER:   Informative, intramural and preliminary, yes.  

KIEFEL J:   But here it is premised on the fact that there is no obligation arising from the statute.  It is the alternative.

MR GAGELER:   No.  Well, this is a slightly harder case but it can be premised – I can accept for the purpose of this second argument that the exercise of the statutory power, if it were reached, if it were reached, would attract procedural fairness, and the point is that this is antecedent to the exercise of statutory power.

KIEFEL J:   To that, yes.

HAYNE J:   Now, the dichotomy you have drawn between the routes depends upon identifying the statutory step (1) decision as the important distinguishing feature.  Is that right?

MR GAGELER:   Yes.

HAYNE J:   May the guidelines be understood as saying either Minister may consider the exercise of the relevant power if criteria A to Z are shown?

MR GAGELER:   Your Honour, it depends on what weight you put on the word “may” in that proposition.

HAYNE J:   I may, but need not.

MR GAGELER:   May but need not.  May but need not is simply an indication to the Department of when to provide me, the Minister, with information so that I could be put in a position to choose or not to choose to make a statutory step (1) decision.

HAYNE J:   But it is also an indication to the world at large because the guidelines are published.

MR GAGELER:   The guidelines are guidelines to the Department.  Your Honours really should have had an agreed fact along these lines, but it is the fact and it perhaps should be formally put before your Honours.  We can attend to this, but the guidelines are guidelines to the Department.  They are available by subscription to anyone who chooses to subscribe, but they are not in the nature of a policy published to the world at large.

HAYNE J:   The distinction eludes me entirely, Mr Solicitor.  The fact that somebody has to pay for them does not seem a critical point.

KIEFEL J:   Are you putting it in the context of they do not amount effectively to a representation?  They stand as a third party seeing an instruction as between a Minister and departmental staff.

MR GAGELER:   That is all I was seeking to point out.  There is no secret about them, but they are the Minister speaking to the Department.  They are not the Minister speaking to the world at large.  That is not a critical aspect of my argument in any way, but it is relevant to the precise answer I gave to your Honours’ questions.

Can I come to what I do identify as the critical question of statutory construction, and then can I say something about the guidelines.  The question of construction is whether these particular statutory powers are conditioned by procedural fairness.  We accept as a general observation, although not by any means as a principle of law, that a statutory power that can be used to help or to hinder an individual is ordinarily conditioned by procedural fairness, but that general observation does not always apply.  There are exceptions and these are on any view, in our submission, exceptional powers. 

I do want to take your Honours to in Kioa v West in just a moment, but before I get to that, can I say this.  There is no case that holds that a statutory power is presumptively conditioned by a requirement of procedural fairness merely because it is apt to confer a benefit on an individual, and it is implicit in the structure of the reasoning in M61 and explicit in all of the recent statements of principle that are collected in M61, from Annetts v McCann through to Saeed, that the trigger for the presumption, at least in its strong form, is an exercise of statutory power that is apt to have some substantial adverse effect on some identifiable right or interest.  In some statements, the word “direct” is added.  “Direct” probably means no more than substantial, but it is the adverse effect on some identifiable right or interest that triggers the strong presumption.

In Annetts v McCann the interest was reputation.  In Jarrett, as in FAI, it was livelihood.  In M61, as in Kioa v West, it was liberty and in Saeed it appears to have been the statutory right to have a statutory application dealt with in accordance with the statutory process.  That is the section 45, 47 and 65 route.

CRENNAN J:   I do not want to take you off course, but you will have noticed in the hand up from the plaintiffs yesterday the nature of the interest was identified under 1c).  I am just pointing this out so it can be factored into your foreshadowed submissions.  Under c)i) the interest is identified as an:

interest in obtaining privilege pursuant to statutory discretion of the Minister ‑ ‑ ‑

MR GAGELER:   I have labelled that a benefit – a privilege, benefit – or you could even say it is a right.  In a sense, a visa is a right to remain in Australia.  What I sought to say is that there is no case that we are aware of that has held that there is a presumption in the Annetts v McCann, Jarrett, Saeed, M61 sense of a presumption to be displaced only by clear words or necessary intendment that arises simply from the existence of a statutory power to confer a benefit.

The underlying principle as we see it is in the judgment of Justice Brennan in Kioa v West. Can I take your Honours back to that, just to a couple of passages. The route principle, in our submission, is at page 616. In a passage that precedes a passage your Honours were taken to yesterday, it is at about point 3 of the page, in one sentence his Honour says:

To determine whether the legislature’s intention is to condition the exercise of a statutory power upon observance of the principles of natural justice – the threshold question – one must have regard to the text of a statute creating the power, the subject‑matter of the statute, the interests which exercise of the power is apt to affect and the administrative framework created by the statute within which the power is to be exercised –

There is a reference back to Salemi, where there is a reference back to Durayappah v Fernando, the old decision of the Privy Council.  Those factors were once known as the Durayappah factors.  But that ultimately is what one looks to and relevant to that can be presumptions that are enlivened by affectation of particular interests.  But absent ‑ ‑ ‑

GUMMOW J:   But does one not then look at 616 about 10 lines from the bottom, “There are interests beyond legal rights”, et cetera?

MR GAGELER:   Yes, and his Honour does use the word “presumed” in that same sentence, but his Honour is not using the word “presumed” there in the strong presumption sense.  He returns to it and uses similar language at page 619, your Honour, and that is another passage that I wanted to take your Honours to.  It is too long to read, but there is a passage – well, a whole paragraph begins on that page and goes over to the next page.  It begins “If a power is apt to affect the interests of an individual” and his Honour is again using the language of presumption there, but again, in our respectful submission, not in the strong presumptive sense that is used in Annetts v McCann.

FRENCH CJ:   What do you say about the statement by Sir Anthony Mason at page 584 in the first complete paragraph?

MR GAGELER:   That needs to be linked with what he said at page 582 in the last full paragraph, “It is a fundamental rule”, which is a statement of the position as then gets reflected in the statement to which he was a party in Annetts v McCann.

CRENNAN J:   I notice there is a reference to “status” in that passage.

MR GAGELER:   Your Honour, you call it status, benefit, right, privilege.  Really, it gets back to the construction of the statute.

KIEFEL J:   At a simpler level, if one puts aside characterisation such as legal rights and acknowledges that it may be wider, it might be said procedural fairness has regard to the present circumstances of a plaintiff in which an interest already inheres in the plaintiff in contradistinction to say expectations with which the law has always had difficulty.

MR GAGELER:   That is correct, your Honour.

KIEFEL J:   So it has to be something which the exercise of a statutory power may affect, and that is the key to it; something which is affected.

MR GAGELER:   Yes, and it can be something that is ongoing like livelihood, and that is Justice Brennan’s explanation of a case like FAI, which is an approval renewal case which is in the same line of cases as the licence renewal cases.  It is not that there is a reasonable or legitimate expectation of the licence.  It is that there is a livelihood or a business interest here that is affected by the ‑ ‑ ‑

KIEFEL J:   But however widely one may describe it, and it may be very wide, is the distinction of importance that it is not dependant upon the exercise of a statutory power to acquire it?

MR GAGELER:   Yes, that is right, and it is existing and it will be adversely affected by an exercise – or can be adversely affected by an exercise of power.

GUMMOW J:   Is there anything in Ainsworth which supports what you have just been putting to Justice Kiefel?

MR GAGELER:   Ainsworth, your Honour, was a case where the effect was on reputation.  That was the critical point.  Justice Brennan very strongly in Ainsworth describes the effect as being one of reputation.  That is also the way in which he dealt with Annetts v McCann.  The effect on Annetts v McCann was on reputation, an existing interest.  So, yes, I could take your Honour to the passage, but that is exactly what Ainsworth was about.  Having volunteered to take your Honour to the passage, I have to do it, I suppose.

KIEFEL J:   It is in Ainsworth 175 CLR 564 at 578 that there is a reference to what Justice Brennan said in Annetts:

“Personal reputation …as an interest which should not be damaged by an official finding after a statutory inquiry” –

which is, of course, present reputation.

MR GAGELER:   Yes.  At page 592, about the middle of the page:

Reputation in this context is not restricted to reputation which is valuable in business:  natural justice is required to be observed whenever a statutory authority contemplates a publication which would affect reputation by diminishing the estimation in which the bearer of the reputation stands in the opinion of others.

And so on.

GUMMOW J:   Is there anything in the cases that applies what you have been saying to licence application?

MR GAGELER:   A licence application?

GUMMOW J:   Yes, for the grant of a licence which you previously do not have.

MR GAGELER:   Alphaone in the Full Court of the Federal Court.  Your Honour has to be quite clear what I am doing here.  I am not saying, I am definitely not saying that procedural fairness cannot be required on the proper construction of a statutory scheme in relation to a provision that provides for an initial conferral of a licence, privilege, benefit, rights. 

GUMMOW J:   FAI v Winneke would be a classic example, would it not?

MR GAGELER:   FAI was a renewal case.  I am not certain ‑ ‑ ‑

CRENNAN J:   Are you underlining “initial” in that formulation?

MR GAGELER:   Yes.

CRENNAN J:   In other words, looking at the whole statutory scheme, these sections have application in the context that rights under the Act have been exhausted and detention is not a deprivation of liberty in the sense that was crucial in M61 but is referrable to the applications for refugee status having been refused.

MR GAGELER:   All I am addressing at the moment – I am just seeking to clear away the notion that there is a presumption in the Annetts v McCann sense that needs to be displaced immediately by clear words or necessary intendment simply because a statute provides for the conferral of a benefit.

KIEFEL J:   Just coming back for a moment though to the question of the possibility that procedural fairness might attach in relation to future interests such as a licence, that is the area par excellence where legitimate expectations has been sought to be applied.

MR GAGELER:   Yes.

KIEFEL J:   The question whether or not it is limited to the process towards the attainment of the future interest, or that it actually recognises the interest in the future interest as a substantive right at that point is very much in question but I am not sure that arises here but perhaps it does.

MR GAGELER:   Well, it arises on one strand of our learned friend’s case.

KIEFEL J:   On the more difficult strand.

MR GAGELER:   Well, on one strand it is said that there is procedural fairness required in the exercise of the statutory power because of the publication of the guidelines – the publication of the guidelines, however they are published to the world at large or to the Department with the world at large being aware of them, it is said on one strand of the plaintiff’s case it gives rise to a legitimate expectation which then attracts procedural fairness. 

Insofar as that is put, your Honour, our response is really the response of Justice Brennan articulated in Kioa but then restated by him in every case that he decided on procedural fairness, particularly in Quin under the heading “Legitimate Expectation”, and in Annetts v McCann and picked up and sufficiently restated for my purpose in Lam.  Can I ask your Honours just to hold Kioa v West for a moment and go to Lam 214 CLR 1. This is really all I wanted to say about legitimate expectation but it is important.

At paragraph 82 – this is picking up Justice Brennan in Quin.  It is important to recognise that what Justice Brennan in Quin said in that classic statement that always gets reported and restated about the limited role of judicial review, his Honour is actually speaking in the context of putting this notion of legitimate expectation in context, but after that classic statement in Quin he went on to say this:

“So long as the notion of legitimate expectation is seen merely as indicating ‘the factors and kinds of factors which are relevant to any consideration of what are the things which must be done or afforded’ to accord procedural fairness to an applicant for the exercise of an administrative power, the notion can, with one important proviso, be useful.  If, but only if, the power is so created that the according of natural justice conditions its exercise, the notion of legitimate expectation may usefully focus attention on the content of natural justice in a particular case; that is, on what must be done to give procedural fairness to a person whose interests might be affected by an exercise of the power.  But if the according of natural justice does not condition the exercise of the power, the notion of legitimate expectation can have no role to play.  If it were otherwise, the notion would become a stalking horse for excesses of judicial power.”

Then Justices McHugh and Gummow say that this statement should be accepted as representing the law in Australia.  In our submission, that takes us back to the question of construction.  So what is done, in fact, in issuing the guidelines cannot result in a legitimate expectation that introduces a requirement for procedural fairness.  That is not there on the proper construction of the statute.

MR GAGELER:   Going back to Kioa v West, if I may point this out, there was a passage at pages 619 to 620 where Justice Brennan links what he describes as a presumption of procedural fairness – parenthetically we say not the strong Annetts v McCann presumption, but some sort of presumption – to an express or implied requirement within a statute to take account of the interests of an individual, but, quite clearly, that is what he is doing in that paragraph.  Then the only other passage that I wanted to draw your Honours’ attention to again without specifically reading it, at pages 623 to 624 his Honour distinguishes the earlier cases of Salemi and Ratu. 

Your Honours will recall that in Salemi and Ratu it had been held that the exercise of the Minister’s power to deport was not conditioned on any requirement of procedural fairness.  Nobody has ever said that Salemi and Ratu were wrongly decided and his Honour here, and other judges in Kiao v West, were not saying anything other than that the statutory scheme had changed in a way that was sufficient to import procedural fairness.  But in distinguishing Salemi and Ratu, one factor that Justice Brennan notes as of significance was the point made at the bottom of page 623:

that the Minister in exercising his power under s 18 was not bound to have regard to the interest of –

the particular individual.  That was a significant indicator in Salemi that natural justice was not a condition of the exercise of power. 

GUMMOW J:   I think this all gets a bit theological, in my mind.  We have at some stage to face up to the constitutional question of a sort, which is the degree to which the judicial procedures intrude into the exercise of public administration.  That is the point made by Justice Binnie in Canada in the passage Justice McHugh and I referred to in Lam, paragraph 80.

MR GAGELER:   Yes.  Your Honour is absolutely right.

GUMMOW J:   You can go round and round but ‑ ‑ ‑

MR GAGELER:   Your Honour is absolutely right.  I did this terribly elliptically and I do not think we gave your Honours Quin on our list, but to say more clearly what I had almost said before, the passage from Quin that your Honour and Justice McHugh said in Lam represents the doctrine of the Court appears in 170 CLR 1 in a discussion ‑ ‑ ‑

GUMMOW J:   I mean at bottom, these are intensely practical questions as to the machinery of government, it seems to me.

MR GAGELER:   Exactly, yes, your Honour, and to finish what I was saying, a lengthy and important passage of his Honour’s discussion begins at page 34 under the heading “Legitimate expectations” and that has, as part of its introduction, the very point that your Honour is pointing out and that is that the constitutional context, the reference to Marbury v Madison at the bottom of page 35, and that oft repeated but incredibly important statement at the bottom of page 35 across to page 36:

The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository’s power.

And so on.  It really gets back, and necessarily constitutionally gets back, to a determination by reference to the proper construction of the statute of what are the limits on the repository’s power.

GUMMOW J:   Yes, but the question is, what are the proper canons of construction of a statute?  We use the phrase “proper construction” as if it is self‑explanatory in itself, but it is not.

MR GAGELER:   It is never easy.  There are sometimes presumptions that will apply which will assist.  What I sought to say is that the Saeed, Jarrett, Annetts v McCann, M61 presumption is a presumption that arises where the exercise of the power is apt to have an adverse effect on an existing right or interest in the broadest sense.

KIEFEL J:   Does the identification of that interest and of the effect upon it assist in the resolution of this problem with roles which Justice Gummow was referring to, that is, where the judiciary might otherwise be seen to be interfering with an executive function.  If there are interests which are liable to be affected, it gives part of the answer to where the judiciary might act to protect the interest.

MR GAGELER:   Yes.  That is within a context where the judiciary is limited to discerning the conditions of the exercise of the power that are expressed or implied in the statutory scheme in any event, yes.  In our respectful submission, you put that strong form presumption aside, the adverse effect on existing rights or interest.  There is a weaker presumption that Justice Brennan refers to in Kioa v West that arises from the statute expressly or impliedly requiring the interests of the individual to be taken into account in the making of the decision. That is the passage that I referred to at pages 619 to 620 and it comes out from his discussion at pages 623 to 624 of the earlier cases of Ratu and Salemi which he accepts were correctly decided.

FRENCH CJ:   Does the public interest encompass the interests of the individual?

MR GAGELER:   That is going to be a point that I come to.  It does not have to.  There is no express or implied requirement in these particular provisions for the Minister to have regard to the interests of the individual.  He may and, as your Honour has seen from the guideline, does as a matter of practice routinely, but the question is what is it that is required by the statutory scheme?  Can I come to that question immediately?

GUMMOW J:   You are on your second level ‑ ‑ ‑

MR GAGELER:   I have lost track of ‑ ‑ ‑

GUMMOW J:   The first level was existing interests as normally understood.

MR GAGELER:   Yes.

GUMMOW J:   The second level – I think you were referring to Justice Brennan as a statute requiring them to be taken into account.

MR GAGELER:   Yes.  I am seeking to say that is absent in this case as well.

GUMMOW J:   So c)i) of the plaintiffs’ outline – the interest in obtaining the privilege – where does that fit in your scheme?

MR GAGELER:   It is not an interest that attracts a presumption of procedural fairness.

GUMMOW J:   If there is no presumption then where do we go?

MR GAGELER:   Then you go in a non‑presumptive way to the proper construction of the legislation.  You go to the Durayappah factors identified by Justice Brennan at page 616 of Kioa v West.  I am really about to turn to that now.  It is useful, your Honours, in doing that, or as a prelude to doing that, to just go back for a moment to what was said in a very similar context by the Court in S134 211 CLR 441, a case that concerned ‑ ‑ ‑

KIEFEL J:   We do not have it.  It does not appear to be on the list.

MR GAGELER:   I am so sorry.

GUMMOW J:   This is 211 at 441?

MR GAGELER:   Yes.

HEYDON J:   Why do you not just read it?

MR GAGELER:   It is one of these things – it is just too long to read, your Honours.

GUMMOW J:   Which paragraph?

MR GAGELER:   It is at paragraphs 44 to 47.  It is in the context of the Minister personally making a step to a section 417 decision not to grant a visa where the allegation was that there was jurisdictional error because the Minister had failed to have regard to some aspect of the personal circumstances of the individual.  In paragraphs 45 and 46 aspects of the structure and nature of the power conferred by section 417 are mentioned and then it is said in paragraph 47 that these considerations ‑ ‑ ‑

GUMMOW J:   This is a failure to take into account?

MR GAGELER:   Yes, but the nature of what was said to have been not taken into account were aspects of the personal circumstances of the individual.  It is said that these considerations flowing from the text and structure of section 417 indicate that there was no jurisdictional error of the nature of which the prosecutors complain.  That is, putting it in other words, the statute on its proper construction did not require that analysis to be undertaken by the Minister. 

It is those factors that are identified in those paragraphs of S134, which were relevant to the exclusion from section 417 of an implication of a duty on the part of the Minister to take those particular circumstances of the individual into account as a mandatory relevant consideration that, in our respectful submission, are equally relevant to the exclusion from section 417 and the exclusion from section 351, which is identical, of a duty on the part of the Minister to afford procedural fairness to the individual.

Can I identify four factors, your Honours, and in doing that answer a question your Honour the Chief Justice asked of my learned friend, Mr Lloyd, yesterday?  The question is where does step (1) fit into the structure of section 417 and section 351?  There, we point out that the only part of section 417 or 351 which is expressed in terms of conferring a power is subsection (1).  In our submission, step (2), deciding whether or not to substitute a decision, is explicit in subsection (1).  Step (1), considering whether or not to do so, is implicit in the same grant of power.  So subsection (1) is the source of power to undertake step (1) and to undertake step (2).

GUMMOW J:   The opening words of 417(1) are a jurisdictional fact, are they not, constituted by what the Minister thinks is in the “public interest”?

MR GAGELER:   Yes, that is right, but the Minister does not have to think at all and that is made clear ‑ ‑ ‑

GUMMOW J:   No, but he has power to think.

MR GAGELER:   He has power to think and he has ‑ ‑ ‑

GUMMOW J:   Whoever drafted this reserved ‑ ‑ ‑

MR GAGELER:   He has no duty ‑ ‑ ‑

HAYNE J:   This transcript is going around the world, Mr Solicitor.

MR GAGELER:   We are all on the same wavelength, your Honour.  He has power to think.  He has no duty to turn his mind to the individual case.  That is made clear by subsection (7), but the ‑ ‑ ‑

GUMMOW J:   Then if that is true, if that is made out, he may substitute “may, but need not” and that comes out of subsection (7).

MR GAGELER:   Well, subsection (7) amplifies subsection (1).

GUMMOW J:   Both limbs of (1)?

MR GAGELER:   Yes, both limbs of (1), yes.

KIEFEL J:   So he does not have a duty to consider the public interest as a ‑ ‑ ‑

MR GAGELER:   He does not have power.  He cannot substitute the decision, unless he has first thought it in the public interest to do so.

FRENCH CJ:   He is not required to embark upon a consideration of the public interest.

MR GAGELER:   Correct.

FRENCH CJ:   Does that not really put subsection (7) outside of the framework of subsection (1)?

MR GAGELER:   Well, no.  Subsection (7) is about subsection (1).  It is expressly about subsection (1).

KIEFEL J:   It informs subsection (1).

MR GAGELER:   Yes. 

FRENCH CJ:   But it is a discretion.  It confers upon the Minister, does it not, a discretion, or at least makes it clear that the Minister has a discretion, not a duty, to decide whether to embark upon the process of consideration of the public interest in subsection (1)?

MR GAGELER:   It makes it clear, yes.  But the power – the only conferral of power is what is expressed or implicit in subsection (1).

FRENCH CJ:   Yes.

BELL J:   That is a power to substitute a decision that is more favourable to the applicant than the decision reached by the Tribunal and it is in that context that the public interest consideration comes in.

MR GAGELER:   That is right.  So the four factors, the four aspects of this power that I wanted to draw out are these:  one, the sole repository of the power at step (1) and at step (2) is the Minister - see subsection (3) - the Minister being politically accountable - see subsections (4) to (6).  That is point one. 

Point two is that the sole criterion for the exercise of the power at step (2) is the Minister’s perception of the public interest.  That means that it is open to the Minister to exclude as a matter of law any consideration of the interest of the individual, just as it was with section 18 of the Act in its former form as considered in Salemi and Ratu never said to be wrongly decided. 

Point three is that the exercise of the power of the Minister is by subsection (2) not procedurally constrained by sections 45, 47 and 65.  That is, they do not, in the terms of the statute, get triggered by the making of an application.  There is no duty of a procedural kind as there was in Saeed for the Minister to give consideration at any point to the exercise of the power.  There is no statutory right to make an application.  There is no statutory right to make a request and subsection (7) amplifies that there is no statutory duty to consider a request even where a request, in fact, is made and goes on to make clear that there is no statutory duty to consider the exercise of the power at all.

The fourth point and most critically, and it is the point that was highlighted by your Honour Justice Crennan and by your Honour Justice Bell and it critically distinguishes these cases – I should say, these powers from the powers under consideration in M61, you have here the power that is limited to one that is inherently residual but it arises, can arise only after a decision of the Tribunal, that is, only after legal rights of application, determination and merits review are all exhausted.  It is inherently beneficial in that it can only be exercised to substitute a more favourable decision.  I struggled for the word here and it is not quite the right word, but it is inherently gratuitous in this sense; that the Act does not proceed on an assumption that there is a duty that is owed to the potential beneficiary of the exercise of power that would go unfulfilled but for its exercise, an important factor in the analysis in M61 that then flowed through to M70.

HAYNE J:   The same point I think might be put, with a risk of over‑generalisation perhaps, as being that individual interests and rights are dealt with by those other provisions of the Act which regulate application and review of decisions concerning visas of the kind in question.  These provisions are directed not to individual rights and interests but public interests.  There is a risk of over‑generalisation, I suspect, in that but that I understand to be the nature of the point you last made, is it?

MR GAGELER:   Yes, your Honour, that captures it.

GUMMOW J:   So it is as if the opening words were, if the Minister thinks that it is in the public interest to do so, notwithstanding whatever the individual rights might have been produced or not produced under the other procedures of the Act?

MR GAGELER:   Yes.

GUMMOW J:   But if the Minister does think it is in the public interest, may the Minister nevertheless not substitute?  In other words ‑ ‑ ‑

MR GAGELER:   Can I take that in stages?

GUMMOW J:   There are two steps in subsection (1).

MR GAGELER:   Yes.  The Minister does not have to turn his mind to it.  The Minister does not have to consider the individual case at all.  The Minister having started to consider the individual case, does not need to continue to consider the individual case.  That is the step (1) decision.  It is not, in any sense, irrevocable.  If the Minister were to consider it in the public interest to do so, the Minister still has a discretion, your Honour; “may” means “may”.  I mean, sometimes “may” means “must”, but the Acts Interpretation Act says “may” means “can but need not” and there is no reason to read “may” in this context in any other way, in our submission.

HEYDON J:   What are examples of the public interest?  In one of these plaintiff’s documents, there appears a letter from a farmer who employed the plaintiff for years and said he was an excellent worker.  Is that an example – where a person fails to get through the ordinary channels but may, nonetheless, be useful to the country?  Perhaps Ms Kaur is another example.  She wants to become an accountant.  She seems to be heading well in that course, but for this decision.

MR GAGELER:   I put it this way.  The Minister may consider those factors to be in the public interest.  Two aspects to the point of construction that underlines my answer to your Honour – one is that the expression “the public interest” has been said, as your Honour knows, on a number of occasions to be the widest of discretionary formulae and, point two, is that this provision is very carefully couched by reference to the Minister’s thought about the public interest, not objectively as appears to a court what might be in the public interest.  But yes, your Honour, the Minister could properly, but need not, consider those factors to be in the public interest.

FRENCH CJ:   There may be circumstances in which the public interest and the individual interest, as it were, coalesce.  There may be, for example, issues of humanitarian concern which flow from the circumstances of the particular individual and in which a decision may be taken, as it were, reflecting Australia’s approach to such circumstances. 

MR GAGELER:   Yes, entirely, your Honour.  In practice, as your Honours have seen from the materials, the position of the individual can be and is taken into account, the point of construction being that there is not a requirement in the Act to take the personal circumstances of the individual into account as a mandatory relevant consideration.  That is not the be‑all and end‑all, but it is a powerful factor in construing these provisions as not importing, by implication, a requirement for procedural fairness.

KIEFEL J:   From what you said before, the public interest supports an affirmative decision – one in favour of the applicant of a request or by the Minister ‑ ‑ ‑

MR GAGELER:   Yes.

KIEFEL J:   ‑ ‑ ‑ but a negative decision is still open to the Minister in a general discretion.

MR GAGELER:   Yes.

KIEFEL J:   So in a way the reference to, in terms of drafting, “the public interest” should be taken from the beginning of the subsection and put just after a decision that is more favourable to the applicant because that is what it truly governs on that rule.

MR GAGELER:   Yes.

GUMMOW J:   Now, section 4(1), talks about “the national interest”.  That was put in by the same Act in 1992 as put in 417, I think.  Is there any distinction here between the national interest and the public interest?

MR GAGELER:   The words “public interest” have repeatedly been held – I am thinking here of Radio 2HD and other cases – to import the broadest of discretionary decision‑making.  The use of that terminology in all of these non‑compellable powers indicates a parliamentary intention, in our submission, to import the same breadth of discretion when it comes to these particular powers.  The national interest, your Honours, may – certainly not in the context of section 4(1) of the Act – in a particular context have a different connotation.

GUMMOW J:   Yes.  It may be saying that it is in the public interest to permit this person to obtain these benefits even though the person otherwise does not comply with the Act.

MR GAGELER:   Yes, of course.  That is what it is allowing the Minister to say.

GUMMOW J:   Because of what has been gone through with the procedures of the Act.

MR GAGELER:   Yes, that is what it is allowing the Minister to say, as a residual discretion at the end of the day when all other statutory processes ‑ ‑ ‑

FRENCH CJ:   It is a discretion to permit entry, notwithstanding that the statutory gateways to entry through a visa process have not been able to be met.  It is not so much perhaps a question of non‑compliance but a question of the permission was not available under the procedures which have been invoked up to date and then there is this, as you call it, residual discretion by the Minister to say a bit like the old section 6 as a leftover.

MR GAGELER:   It is not really like the old section 6 because the old section 6 was the only way in.

FRENCH CJ:   I appreciate that.  It is a kind of vestigial organ.

MR GAGELER:   That is really quite significant, your Honour, yes.  There were six sections 6(a).  This is going back a long way.

FRENCH CJ:   Indeed.

KIEFEL J:   Are you coming to the construction of sections 48B and 195A separately?

MR GAGELER:   Yes, not in detail, but I have really said what I wanted to say about 417 and 351.

KIEFEL J:   I was just interested to hear your submissions about the public interest in the context of those provisions because it may bear a different consideration from the public interest in sections 351 and 417 which are predicated upon there having been another decision and a substitution for a more favourable decision, whereas the public interest in sections 48B and 195A really is something to which the Minister has regard simply in considering the grant of a visa or that another provision does not apply.  The context is different.

MR GAGELER:   We have got the same statutory expression and the question would be whether in that context the normal wide connotation of that statutory expression is to be constrained in some way and, in our submission, the answer is no.  It is exactly the same language.

KIEFEL J:   It is just a condition on the power.

MR GAGELER:   Yes, and it should not be read down by reference to the context particularly, your Honour, when you realise that if you go to section 48B that section 48B, for example, is a power to lift the bar that is imposed by section 48A, and section 48A is the provision that says once you have made an application for a protection visa you cannot make another one.  So 48B is really in the same nature as 351 and ‑ ‑ ‑

KIEFEL J:   Section 195A, though, stands in a slightly different category.

MR GAGELER:   Section 195A is more difficult, yes.  There is no doubt 195A is more difficult.  Your Honours, if you look at 195A it says in subsection (1) that:

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

Your Honours will recall that M61 concerned persons who had been detained under section 189(3).  They were the offshore entry persons and the structure of the Act, I do not need to dwell on in respect of them, was that they were precluded by section 46A from making a valid application.  So in relation to that category of persons detained under section 189(3), section 195A has a particular application and that is the application that was teased out in M61.  But it is a general provision, it applies to everyone, absolutely everyone ‑ ‑ ‑

CRENNAN J:   At any time.

MR GAGELER:   Well, whenever they are detained.  So once they have been through the entire process, while ever – I am sorry, I should go back.

CRENNAN J:   But it can apply before being detained for deportation.

MR GAGELER:   Well, yes.

CRENNAN J:   In other words, the epithet “residual” is not as apt for 195 in terms of describing a wide discretion – 195A, I should say.

MR GAGELER:   Well, it is.  It is because a person detained under 189(1) is a person in the migration zone who is suspected to be an unlawful non‑citizen, that is, not to have a visa.  Then they are detained under 198 - and I am going over old ground I know - but 198(2)(c), of course, is the accommodation.  There are many different contexts in which 198 can arise, but in the usual case with somebody onshore a person will have a visa and will seek another visa which will be refused.  Then when they have exhausted the possibilities of getting further visas they are taken into detention and the various subsections of 198 deal with the various scenarios in that regard.

But 198(2)(c), for example, accommodates the making of a substantive visa application, so in the context of a person detained under section 189(1), 195A has a very different application, in our submission, from the application that it was seen to have in M61.  It is not the provision, the consideration of which prolongs detention.

FRENCH CJ:   Just going back for a moment to 351 and 417, does that power conferred on the Minister fall within or run wider than the general power conferred by section 29, opening of course with the words, “Subject to this Act” – is it right to regard 351 and 417, at least in their application to ministerial decisions to grant a visa, as it were, an aspect of that general power, giving content to the words, “Subject to this Act”?

MR GAGELER:   Can I take the powers separately?  Section 417 is a power to make a more favourable decision, and that is in respect of the Refugee Review Tribunal.  The Refugee Review Tribunal’s function does not require it in every case to actually grant the visa.

FRENCH CJ:   Well, very often it will vary the decision or set it aside, subject to other criteria being met.

MR GAGELER:   Yes, that is right, other criteria need to be assessed, so it would be wrong to see 417 as simply an aspect of the ability of the Minister to grant a visa because the decision of the Minister may well not be a visa grant decision under section 417.  It is better in both cases, your Honour, not to treat 417 or 351 as merely an aspect of the broad section 29 power.

Your Honours, I have said what I wanted to say about the statute.  I did just want to make a couple of very short submissions about what I have described as a question of fact, that is, the character of the guidelines.  This is not something I particularly want to dwell on.  It is dealt with in our written submissions at paragraphs 15 to 18.  It really just comes down, in our submission, to a fair and natural reading of what the Minister has actually said that he wants to do in these guidelines.  Your Honours were taken to a version of them but they are all helpfully collected in a few pages in volume 2 of the S51 bundle of documents.  It is significant that if you go to the section 351 and 417 guidelines that begin at page 728 and you look at the bottom of page 729 under the heading “Purpose of These Guidelines”, it is said that:

The purpose of these guidelines is to:

·explain the circumstances in which I may wish to consider exercising my public interest powers –

language your Honour Justice Hayne used in an earlier point –

·explain how a person may request my consideration –

and importantly –

·inform departmental officers when to refer a case to me so that I can decide whether to consider exercising such powers in the public interest.

Give me the information so that I can, if I want to, if I choose to do so, make a statutory step (1) decision.  That same language of purpose you see in the section 195A guidelines that begin at page 746.  The heading at the top of the page, “Purpose of These Guidelines”, same language to:

·explain the circumstances in which I may wish to consider . . . 

·inform officers of the Department of Immigration and Citizenship (DIAC) when to refer a case to me so that I can decide whether to consider –

preliminary to any step (1) statutory decision.  The guidelines for section 48B, which in this version begin at page 618, are more opaque because they are written in the third person even though they are endorsed by the Minister, but on a fair reading it is the same sense of purpose that one gets from the statement of purpose at the bottom of page 618 and it is the same sense that one gets from the text at page 624 where there is guidance given about cases if not within the guidelines, then cases if within the guidelines.

The case in the Full Federal Court of Bedlington v Chong 87 FCR 75 which concerned an early version of the section 48B guidelines, in our submission, correctly captured their essence at page 80 at letters F and G as we read it, the Full Court identifying these guidelines correctly, in our submission, as guidelines about when matters should be brought to the attention of the Minister as a preliminary to a step (1) decision.

Your Honours, the only other question of principle concerns relief.  It is an important question of principle and it was significant in S134 where your Honours will recall, in respect of a decision of the Minister under section 417, not only was it said there was no jurisdictional error, but it was said at 211 CLR 441 at 461, paragraph 48 that neither mandamus nor certiorari would issue in any event. That was in the joint judgment of five members of the Court and the same thing was said in the joint judgment of the other two members of the Court at paragraph 100.

The reason for that is that the Minister had no duty even to consider so mandamus would not issue.  Because mandamus would not or could not issue certiorari would not issue.  That was said to be the fatal conundrum.  Then in M61 243 CLR 319, your Honours will recall that when you got to relief – this is at 358 there is a reference to S134 and it is said at page 359, paragraph 101 in the penultimate sentence:

In many cases –

and we would say the usual case -

the conclusion that certiorari and mandamus do not lie would require the further conclusion that no declaration of right should be made.

That usual case is illustrated by the decision of the Full Court, in which your Honour Justice Kiefel participated, in Ozmanian.  I will not take your Honours to the passage in your Honour Justice Kiefel’s judgment, but the reference is Minister for Immigration and Multicultural Affairs v Ozmanian (1996) 71 FCR 1 at 30 to 32.

The Court would not and, in our respectful submission, should not, except in the most extraordinary of circumstances which are of the kind illustrated by M61, make a declaration of a past breach of the rules of procedural fairness in circumstances where the Minister has no duty at all to give further consideration to the matter. 

We say that typically in procedural fairness cases you can, if there is evidence, seek relief in advance if you have an apprehension of bias.  You might say in advance of waiting to the end.  In fact, you are required in advance of waiting till the end to raise the bias point early and we say that that is wrong in that analysis.

Then there was a discussion of Kioa, and the level of interests that are required to engender procedural fairness.  We say that in Kioa, Mr Kioa was an illegal immigrant who had no right to be in Australia.  He was in fact in Australia like all my clients in Australia.  He wanted to stay in Australia, he wanted to not be deported, and the Minister had a power to deport him, the Minister was considering that power, and the Court found that the Minister had to provide him with procedural fairness in the course of doing so. 

We say that that is not materially different.  We accept that the Minister in that case was not free from the duty to consider, but in terms of the nature of what Mr Kioa had, Mr Kioa was somebody who wanted to stay in Australia, who was in Australia, and did not want to be removed – or in those days, it was called “deported” – but we say the interest is not materially different from the Kioa situation.

There was then a submission about the ambit of the expression “public interest”.  Our submission on that, I do not know that this is contentious, but the Court was taken to S134 211 CLR 441. We do not understand that case to be saying that private or interest personal to the applicant is outside of the scheme of public interest.

In that case, there was a conception that there was no mandatory requirement to have regard to a particular issue but that was not to say anything about the scope of public interest, in our submission, and that it is clear just from the language of the various sections which talk about particular applicants or the non‑citizen.  If one takes 417 and 351, the Minister has to look at, we say, the decision of the Tribunal to, at least, work out what a more favourable decision would be.  He has to look at the individual circumstances of the case.  So, the concept of public interest is a broad one which includes the individual circumstances. 

I have material which, if the Court is interested, I can get a proper copy of, but it is from the second reading speech of the Bill that introduced the predecessor to section 351 which was then section 64U. In the second reading speech, the Minister said:

The term ‘public interest’ is not limited solely to public issues.  Consideration of the public interest could involve consideration of the circumstances of the particular case having regard to unusual, unforeseen or other features that are deserving of a more favourable response against the background of Australia being a compassionate and humane society.

We say the current Minister must think that as well because he has adopted guidelines which embrace all these individual, private and particular circumstances.  So to that extent we say the reference to public interest in the Act should not be read in a way that it supports the notion that private interests would not often be or would not generally be involved such that procedural fairness should not be attracted.  We say public interest, and especially having regard to the terms of the sections, the public interest pertaining to granting something favourable to the relevant individual is innately looking at their circumstances and that that is a factor that would attract procedural fairness.

CRENNAN J:   What is the details of the second reading speech?

MR LLOYD:   What I have here is that it related to Act 180 of 1989.  It was introduced into the Senate on 14 December 1989. 

HAYNE J:   Might I just take you back a moment, Mr Lloyd, to 195A and comparison with other of the provisions that are now at stake.  The premise for the engagement of either section 351 or 417 is that it has been determined on merits review that there is no right to the visa sought, is it not?

MR LLOYD:   Yes, for those two it is.

HAYNE J:   For those two.  The premise for 48B is that there has been a denial, albeit it not necessarily final denial, of the existence of a right to a protection visa, is that right, because the question is is the bar otherwise imposed by 48A to be lifted, and 48A applies where there has been denial?

MR LLOYD:   Yes.  So it is the final denial unless the Minister lifts the bar. 

HAYNE J:   Yes.  The premise for 195A, leaving aside the exceptional case of offshore entry persons, so the premise for the engagement of 195A in cases of the kind with which we are now concerned, is that the person concerned either has applied for a visa and been denied it or while in detention could still apply for a visa?  In either of those cases 195A can be engaged, is that right?

MR LLOYD:   Yes, your Honour. 

HAYNE J:   Therefore, common to all four of the provisions with which we are concerned, is a premise that either the person concerned has gone through the system and been denied the right or could still engage that system, is that right?

MR LLOYD:   Yes, but if can just qualify one thing.  Your Honour says it is a premise.  I would prefer the word a “precondition” because a premise suggests that it is somehow limited to the matters related to the visa which we would not accept.  A precondition for it is that they have gone through the system.

HAYNE J:   The circumstance in which the power may be exercised.

MR LLOYD:   That is so.

HAYNE J:   I had not intended it to be a tendentious reference, but something of that kind would capture it sufficiently, would it not?

MR LLOYD:   Yes, your Honour.

HAYNE J:   In each of the four cases, each of the four sections, the focus is upon public interest rather than any question of entitlement to visa or satisfaction of visa conditions?

MR LLOYD:   Yes, although as I have said we say the public interest includes the interest of the individual in the sense of the public interest of Australia has been thought to include the desirability of being compassionate to people in circumstances that warrant being treated differently to the vast bulk of cases under the normal visa criteria, but yes, subject to that. 

FRENCH CJ:   The Minister, for example, under 417 making a decision to grant a visa is subject to all the non‑excluded requirements, including criteria and so forth, is he not - bound by all the other provisions of this Act?

MR LLOYD:   Yes, but the ones that he is not bound by include, in effect, the visa criteria.

GUMMOW J:   Include?

MR LLOYD:   Include the visa criteria.  So he can grant a visa to someone who does not meet the visa criteria, which is entirely how it is used.

FRENCH CJ:   How does that work with section 36 which is in Subdivision A which is not excluded?

MR LLOYD:   Because under section 65 is the power, and that is in Subdivision AA and that is the one which says you have to give the visa if they meet the criteria.  Section 36 is just a definition of the criteria but the operative provision is section 65.  So if you are not bound by section 65, then you can give the visa to somebody who does not meet the visa criteria.

FRENCH CJ:   You say a protection visa?

MR LLOYD:   Yes.  You can give a protection visa to somebody who does not need one and you can give someone who you think is entitled to a protection visa, a spouse visa.  You can give them anything you want.

BELL J:   That is consistent with the fact that the power under 417 includes to make a decision favourable to the applicant, say, for a protection visa notwithstanding that the Tribunal could not do that?

MR LLOYD:   That is so, because if they met the definition of a refugee, the Tribunal could have given it to them.

FRENCH CJ:   I know that for all intents and purposes we are speaking of circumstances in relation to 417 where the Tribunal has affirmed a delegate’s decision refusing the grant of a visa.  There are other classes of decision the Tribunal can make under 415(2) which would not amount to, as we were saying, a protection visa should be granted subject to criteria, that is to say, it can remit and so forth.  Now, a more favourable decision might be a more definitive outcome, I suppose.  In other words, 417 could also operate on a decision of the Tribunal that did not amount to affirming a refusal, theoretically.

MR LLOYD:   I entirely accept that that is a correct construction of the Act, but in a practical matter, if the Tribunal remitted it, which happens from time to time and could, for example, happen in what is broadly called a character kind of case and a protection visa.  If you have, I think it is, an Article 33 problem which is you have committed a crime abroad or something, that is something which, perhaps somewhat surprisingly, the Refugee Review Tribunal cannot look at but the AAT can look at.  So they would, if they thought there was a concern, not decide to grant the visa, but remit it to the Minister and then if the Minister rejected it on that ground, they would then have an appeal right to the AAT.  But if the Tribunal remitted it on that ground, presumably the Minister could at that time say I am not troubled by that, just give him the visa, but in practical matter, the delegate would just do that.  If they were not troubled by it, it would not go to the Minister, but I accept that that is a correct construction of the Act.

My friend took the Court to Bedlington v Chong at page 80. I do not want to say anything other than to say that the passage that he took the Court to, we rather thought supported our case, which was to the effect that the guidelines determined in advance the circumstances that the Minister would consider to exercise the power, we say is consistent with what was done in M61 and we do not see that as being inconsistent with our position.

Then my friend addressed relief and said because of S134, mandamus or certiorari cannot lie.  We have sought certiorari in relation to these decisions because what was not considered in S134 was the bridging visa implications and the repeat request implications.  That was not a matter at all before the Court or considered.  We say that a certiorari would have an effect in relation to those future issues, and so certiorari does lie, although we accept mandamus does not, and we do not seek mandamus against the Minister.

Then in respect of declarations, it is said that – I think it is put this way – a declaration would not lie because the only purpose the declaration could have would be to go to the Minister in relation to a non‑compellable discretion, and the Court would not give relief in those circumstances.

I would like to take the Court to a decision which, I think, is before your Honours which I had handed up at lunchtime called Ahmed v Minister for Immigration.  It is a decision of your Honour Justice Gummow in February last year.  There are two things to get out of the case.  One is direct answer to this point but a second is a broader point because it shows how, in fact, the system works. 

In this case a person had had a student visa.  There was an issue as to whether or not it had automatically been cancelled, but in any event, whether it had been cancelled or not, it had expired by a certain date.  Then there had been an application for another visa lodged more than 28 days after the expiration date.  In that application the person said, “I know, in effect, I am not eligible for this visa but I am applying so that after you reject me, I will go to the MRT and after they reject me, I can go to the Minister’s discretion under section 351”.  So, that was done. 

The Minister – or the delegate – said, “No, your application is not valid so you lose”.  Then the person said, “Well, I will beat you.  I will put in an application for a protection visa”, but they said in the application, “I am not a refugee but I just want to get to section 417”.  They then go through the process and get to section 417.  The Minister refuses to exercise the power, or does not exercise the power, and then they come back and start proceedings, ultimately in this Court, saying, “I want mandamus to compel the Minister to consider the visa application that I have already said cannot succeed so I can get to section 351 discretion” – although they do not say it – “even though I can get to the 417 discretion which is exactly identical”.  The Minister said that that should not be granted. 

Then they said, “Well, in any event, we want a declaration that the visa cancellation that you thought happened did not happen” and they said that would be relevant, although they accepted that there was no immediate right that was affected, or no lasting right, they said that it had significance because a declaration in their favour would be something they could put into their section 351 request to the Minister which they might ultimately get through this process.  The Minister said in that context that there was not sufficient utility, would be inappropriate to grant a relief and your Honour Justice Gummow rejected that, and that can be seen at the top of page 4 from about lines 105 to the end of that paragraph.

GUMMOW J:   On 109, after the closed bracket, I think “and” should be deleted.  Anyhow, it has never been taken out.

MR LLOYD:   In any event, the point being that your Honour decided that the availability of a declaration for such assistance as it might have in a non‑compellable process was sufficient.  The Minister sought leave to appeal from your Honour’s decision and two other members of this Court said that there was no even arguable error in respect of that proposition.  So we say that insofar as the Minister here was once again traversing the same area, the Court should apply your Honour Justice Gummow’s view of which there is no arguable error and accept that this declaratory relief is available even though its sole use might be to re‑agitate matters before the Minister. 

We also say in relation to what this case says about these processes at all, it shows that there is sufficient, at least, prospect that their use could – that a non‑compellable power or the ability to achieve the possibility of getting to a non‑compellable power is sufficient to, at least, potentially – of course, all your Honour decided was in the interests of the administration of justice to extend time, but it at least engages the interest of justice sufficient for those purposes and we respectfully rely upon the reasoning in that case.

Going to S10, the only thing I would say in relation to submissions on that is it was suggested that the letter at 237 was not new evidence for a number of reasons.  The reference to Talibans, it was said, probably referred to both groups.  We do not say that that is the appropriate reading but, in any event, it is clear that it still alleged that they were searching for him, that was new and, in any event, even if the Court otherwise thinks that the content of the letter was otherwise very similar, which we do not accept, it was a new source of evidence and was, in any event, new evidence and so the officer had failed to appreciate the claim that there was new evidence and thereby had erred.

In relation to the US State Department report issue, it was said we had relied upon various international publicly available material.  We should have known that they would seek to update it and therefore there was not a denial of procedural fairness in them doing so.  We, of course, say that is not our complaint.  Our complaint was, having updated it and found something you thought was adverse to my client, they should have told us.  That is what we say they should have done.  That is also in answer to the S49 proposition to the same effect.

In Ms Kaur’s case it was said that in the first section 351 assessment, although it had said that the visa term was clearly stated twice, it had also noted that Ms Kaur had not understood something so it is not right to say what we said.  But what it has said Ms Kaur misunderstood was in substance the migration law and practice.  It is not said that it was caused by the confusedness of the letter.  The only references to the letter are two references about it being clear. 

Then there were some submissions to the effect that all the discussions were intramural, they did not have to tell us.  We say that they had to at least tell us that they were of the view that it was clear so that we could address that proposition. 

The last thing we would say is in relation to costs.  If the Court is against us on every point, by which I might say the points of general principle, if the Court appreciates that is what I mean by that, as well as the individual procedural fairness points in each case, there is nothing really we can say against costs being awarded against us.  If we are successful on every point we obviously would seek costs.

If, however, we are successful on the points of principle, which is to say that people in the position of the plaintiffs are entitled to procedural fairness albeit that they – one or more of them – failed to establish a denial of procedural fairness we say that given that these are four cases amongst many and are being run as test cases that it would be still appropriate, because that is the major issue of the cases, that my client should get

50 per cent of its costs for the whole matter in circumstances where each of the four lose on establishing procedural fairness, but when on being entitled to procedural fairness in principle.

If, however, there is some partial success on establishing denials of procedural fairness we would say that the 50 per cent rate should go up pro rata, by reference to the measure of success.  Beyond that, I have no further submissions.

FRENCH CJ:   Thank you, Mr Lloyd.  Mr Solicitor, did you want to respond on the issue of costs?

MR GAGELER:   Only to say that costs should follow the event.

FRENCH CJ:   Thank you.  The Court will reserve its decision. 
The Court adjourns until 9.30 tomorrow morning in Canberra and 9.30 tomorrow morning in Sydney.

AT 3.03 PM THE MATTER WAS ADJOURNED