[2012] HCATrans 017
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 WEDNESDAY, 8 FEBRUARY 2012, AT 10.17 AM
Copyright in the High Court of Australia
__________________
MR S.B. LLOYD, SC: May it please the Court, I appear in each of these matters with MR S.E.J. PRINCE, MR G.J.D. DEL VILLAR and MR J.B. KING for the plaintiffs. (instructed by Parish Patience Immigration Lawyers)
MR S.J. GAGELER, SC, Solicitor‑General of the Commonwealth of Australia: If the Court pleases, I appear with MR G.R. KENNETT, SC and MS A.M. MITCHELMORE for the defendants in each matter. (instructed by Australian Government Solicitor)
MR M.G. HINTON, QC, Solicitor‑General for the State of South Australia: If the Court pleases, I appear with my learned friend, MR C. JACOBI, intervening on the instructions of the Attorney‑General. (instructed by Crown Solicitor (SA))
FRENCH CJ: Yes, Mr Lloyd.
MR LLOYD: I understand the Court has a copy of the outline that we have prepared which gives an indication of the order in which we will be approaching the issues. The Court will notice that I will address, as it were, issues common to each of the matters as well as the specific issues pertaining to the matter of S10 and Ms Kaur and Mr Prince will address the Court in relation to the specific matters in S43 and S51, although I note, contrary to our outline, it may well be that he will reverse the order of those two matters in which he addresses.
FRENCH CJ: Mr Lloyd, I think we have lists of documents to be tendered by consent in respect of each of the matters?
MR LLOYD: Yes.
FRENCH CJ: All right. They are received.
MR LLOYD: Thank you, your Honour. I understand that an affidavit of service of 78B notices has been filed in each matter. The only further housekeeping issue is, although two second further amended applications were filed yesterday in two of the matters, they were not filed in matters S10 and S49 because we do not think we are varying from them other than to not press certain forms of relief. If I just indicate to the Court that in the matter of S10 the relief noted in the application in paragraphs 2, 3, 7 and 8 are not pressed and the relief in S49, 2, 3, 8 and 15 are not pressed. I should indicate that insofar as we are pressing all the other matters, we are pressing for them for relief in that nature on a final basis rather than on a show cause basis of course.
The first issue I want to address is one of the common threads between the four plaintiffs’ applications, and we say there are five. The first is that they each involve a person who was seeking to access one or more privileges or benefits that could be conferred by the Minister pursuant to a discretionary statutory power. The second common feature is that they each sought to make request to the Minister of a kind expressly envisaged by the Migration Act, and perhaps there I should emphasise the word “request”. The concept of request is expressly addressed in the Act.
The third point is that they each had their requests assessed by one or more officers of the Department who are undertaking a function of assisting the Minister in purported compliance with guidelines made or adopted by the Minister. The fourth point is that in each case it is contended that the responsible officer was under a duty to record procedural fairness in undertaking his or her function, which duty was contravened, and then fifthly, in each case relief is sought to quash any of the purported assessments under the guidelines to compel further consideration through the Secretary to one or more of the Secretary’s officers responsible for such work and to declare that there have been a denial of procedural fairness in the purported assessments.
I will address these matters in turn, at least insofar as they are common matters. Going first to the nature of the power being exercised by the officers, we contend that the approach taken in our submissions in‑chief is that the officers pursuing tasks under the guidelines are acting under and for the purposes of the Migration Act.
GUMMOW J: You will have to speak up a bit, Mr Lloyd.
MR LLOYD: I am sorry, your Honour. We contend, as we have in paragraphs 45 to 90 of our – I call them the submissions in‑chief although they pertain only to three of the matters because the fourth matter had not been referred at that time, but they apply equally to all four, of course – that the officers pursuing the tasks under the guidelines are acting under and for the purposes of the Migration Act and that is sufficient to make procedural fairness attracted to the task, the procedural fairness obligations. We contend, as an alternative, that even if the officers are undertaking the exercise of non‑statutory executive power under section 61 of the Constitution, then procedural fairness would still be equally applicable. That is addressed in paragraphs 91 to 99 of those submissions in‑chief.
Then there is a third tier which relies upon a decision in Datafin which is addressed in paragraphs 100 to 108 of the submissions in brief which suggest that whatever the nature of the power, if it is a public function being undertaken, then it attracts procedural fairness and, in a sense, although we rely upon Datafin, Datafin is a more extreme case because it was a case of a private body undertaking public function. Here we have members of the Public Service of Australia under the direction of a Secretary and responsible to a Minister undertaking functions to assist a Minister in the possible exercise of statutory powers which we say is very clearly a public function.
If I turn then to the provisions of the Act. The four cases, although not all present all, involve four provisions of the Act; sections 48B, 195A which was itself considered by this Court in the case of M61 which is reported at 243 CLR 319, and also sections 351 and 417 of the Act. The provisions all have common features with section 46A which was the central provision considered in M61. If I take the Court ‑ ‑ ‑
GUMMOW J: Just looking at these particular cases, S10 and S49 are both section 48B and section 417, is that right?
MR LLOYD: That is so. Kaur is section 351.
GUMMOW J: Section 351, yes. That involves the Migration Review Tribunal?
MR LLOYD: That is so.
GUMMOW J: S51 is 195A, is it?
MR LLOYD: And 417 and 48B. So turning first to section 48B, we note that the structure of the provision – and this is so for all of the other provisions – is that there is a kind of a precondition to the exercise of the power which is that the Minister has to reach a satisfaction about whether a course of action is in the public interest. Then if it is, he has a discretion. Then the nature of the discretion in 48B is, like all of them, they are all obviously different, but is focused upon the situation of an individual. It is not a common or general power. It is focused on the individual, as the language itself says “by written notice given to a particular non‑citizen”. Then what the power is is to lift the bar that would otherwise be imposed by the Act in respect of that non‑citizen.
Then subsection (2) in 48B reveals the second element of these provisions which is that the power in subsection (1) must be exercised by a Minister personally, which is to say it is non‑delegable. The third element in 48B is found in subsection (6), which is the “duty to consider whether to exercise the power under subsection (1)”, that is, whether to exercise that discretion to give the notice is not – there is not a duty to consider whether to do that, and that is whether or not “he or she is requested”. That is the first instance of the recognition of the notion of request that we refer to and rely upon. Section 195A is in similar form and all I note in relation to that is that the nature of the power there is to grant a person to whom the section applies a visa. Otherwise my comments apply equally.
In relation to section 351, the nature of the power is that the Minister may substitute for a decision of the Tribunal under 349 a more favourable decision to the applicant. So again it is very much an individual matter. It is what in one sense is akin to a form of review, although the Minister has the advantage that he is not, by operation of subsection (2), bound by a number of the things that the Tribunal is bound by. Apart from that, the provision is the same, also referring to the notion of requests in subsection (7). Section 417 is in materially the same form.
If I can turn to section 282 of the Act, it provides that it is an offence and, indeed, a serious criminal offence for a person who is not a registered migration agent to receive any fee or other award from making immigration representations. Then in subsection (4) there is an indication of what making immigration representations are, that is:
if he or she makes representations to, or otherwise communicates with, the Minister, a member of the Minister’s staff or the Department –
that breadth of communication is referable in relation to the relevant sentences in paragraphs (e) and (f) of (4). So:
on behalf of a person who has made . . . a request to the Minister to exercise his or her power under section –
351 and 417, relevantly –
in respect of a decision (whether or not the decision relates to that person), about the request.
The same material approach is in (f) as well.
So, there is an offence to help somebody make a request or to charge to help somebody make a request and to make submissions to the Minister or the Minister’s staff or the Department about a request unless you are a registered migration agent. If I turn back to section 276, there is an indication here of what is immigration assistance which is something which under the operation of the Act a migration agent can do, and under subsection (2A):
a person also gives immigration assistance if the person uses, or purports to use, knowledge of, or experience in, migration procedure to assist another person by:
(a) preparing, or helping to prepare, a request –
and the same thing under (aa) in respect of 195A. So that all implies that there is to be involved the use of knowledge about migration procedures and laws in making such requests, which we say again informs the nature of the task. We say that the making of a request has a further statutory significance which is revealed by the bridging visa provisions. If the Court has access to the Migration Regulations and in particular Schedule 2 and in particular Subclass 050 and in further particular item ‑ ‑ ‑
GUMMOW J: Sorry, Schedule 2?
MR LLOYD: Schedule 2, Subclass 050 which is bridging visas (general) and then item 050.212 says:
The applicant meets the requirements of subclause (2), (3) –
et cetera. So that is what you have to do. Relevantly here I note (5B) and (6). Going perhaps to (6) first:
An applicant meets the requirement of this subclause if:
Relevantly going down to (b):
in relation to the decision mentioned in paragraph (a), the applicant:
(i)is the subject of a decision for which the Minister has the power to substitute a more favourable decision under section 345, 351, 391, 417 or 454 of the Act; and
(ii) has made a request –
So again, under the statutory or legislative significance to the request, and the significance is that you become eligible for a bridging visa which, of course, means that if you are in detention you are eligible to get out of detention and if you are not in detention your status is at least lawful and you are not liable to be detained. Now, this provision has undertaken a range of forms which we set out – I will not take the Court to it – in our submissions in reply.
The current form, unlike earlier forms, does not mention the notion of the Minister having made a decision. At face value, so long as you have made a request irrespective of the Minister’s decision, you are eligible for this bridging visa forever unless, of course, under (c) you make another request. As soon as you make another request you are not eligible for a bridging visa at all.
Previously, previous forms of the legislation made it clear that you were only eligible until the Minister had made a decision. We say, and the decision in S10 we say makes this clear, that the way the legislation now operates is that because the granting of a bridging visa, unlike other visas, is discretionary under section 72, you will be granted one of these visas if you have made your first request and the Minister has not yet made a decision or at least if the decision has not been finalised, if I put it that way, but if it has been finalised and you make a further request, although you would nominally meet the requirement of someone who had made a request, it is refused then because it is not pending.
So we say there is a significance to that and the significance is that in relation to decisions in respect of first requests, if they are invalid as we would have them, there is value in having a writ of certiorari to set them aside because then the request will be again pending and at least on the basis of the approach taken by the Minister in the exercise of discretion to grant bridging visas, the person is both eligible and likely to be granted a bridging visa.
HAYNE J: Having regard to the provisions of section 73 which permit the grant of a bridging visa either:
(a)during a specified period; or
(b)until a specified event happens –
is there evidence before us of the terms on which any bridging visa in issue in this case, or these cases, were issued?
MR LLOYD: There is, and I will take the Court to S10, which is the one where it principally happens, but what happens is that they are done for a term and if the Minister has not made a decision by the end of the term, you apply again, you get another one, and this is what happened in S10. He applied one, he got about a two‑month or three‑month period. No decision had been made, he got another one, another two or three‑month period. Then he got a third one and by the end of the third one, or possibly the fourth one, a decision had been made and then he does not get them any more.
So we rely upon that as part of the background to the statutory provisions governing these notions of request and also the nature of the power. I propose now to turn to the ministerial guidelines. I propose to take the Court through the guidelines as they appear in the book marked S10. I should indicate that there is a set of these guidelines and related policy in each of the books. I understand that there are ‑ ‑ ‑
FRENCH CJ: I thought there was a suggestion that all the guidelines appear in S51?
MR LLOYD: I think they do, except for the section 195A guidelines which appear. Sorry, they are all in S51 as well. That may be so. I have marked up my versions in S10, and I note that, as I was saying, there are some subtle differences in terms of pagination. I am not entirely sure why that is so, but I think it is agreed between the parties that there is no material difference as between any form of the guidelines at different points in time, so I will just be referring the Court to the S10 materials ‑ ‑ ‑
KIEFEL J: Is there no material difference with respect to the section 48B guideline?
MR LLOYD: That is my understanding, yes.
KIEFEL J: Thank you.
MR LLOYD: So starting at page 404 of the S10 book, this is not the guideline, but it is a policy instruction issued to assist officers who are addressing the guidelines, and then the guidelines are themselves inserted into the policy instruction.
GUMMOW J: What page?
MR LLOYD: Page 404 in S10, and if I can just note at the top of page 404, it says:
This policy instruction deals with the departmental administration of the Minister’s powers under –
relevantly, sections 351 and 417 –
Its objective is to assist officers:
·in applying the Minister’s guidelines on the ministerial exercise of the . . . public interest powers.
At page 407, there is a reference to the public interest. I note that paragraph, I will not read it out, but I note in particular the last line which tells officers they should:
provide all relevant information to allow the Minister to make this decision.
We say that the policy as well as the guidelines is relevant to whether or not procedural fairness is owed insofar as these guidelines are, of course, public and available for migration agents, who are the only ones who are lawfully allowed to charge, to request. They are meant to use their experience and knowledge of these procedures to address these issues, and so it is all ‑ ‑ ‑
FRENCH CJ: I think in a section of your submissions relating to the status of the guidelines, you have made reference to guidelines in the regulations, but it seemed to be a bit oblique.
MR LLOYD: In the regulations, they do not refer to the guidelines, I do not think. I think the previous earlier versions of the regulations did refer to the guidelines, and that is mentioned in our submissions.
FRENCH CJ: Yes, I see.
MR LLOYD: In the current versions of those bridging visa regulations, they no longer refer to the guidelines.
FRENCH CJ: Guidelines are not otherwise referred to in the regulations?
MR LLOYD: That is so.
KIEFEL J: You refer to the status of this document and I think the guidelines as documents publicly available. Is this in aid of some argument in relation to legitimate expectations of process?
MR LLOYD: It is – it is certainly in support of an argument as to both the attraction of procedural fairness and as to the interests that my client has in procedural fairness being accorded and, to that extent, it is in part premised upon a legitimate expectation. We say both the policy and the guidelines, at least impliedly if not expressly, envisage the provision of procedural fairness and that is relevant to whether or not our clients can rely upon that as being an interest to achieve procedural fairness.
On page 408, there is a heading “Minister’s Power Cannot be Delegated.” They make it clear that they do not have the power to decide, although the second paragraph notes:
All other aspects of identifying review tribunal decisions or examining and referring of requests where it may be in the public interest for the Minster to exercise a public interest power may be carried out by others at the Minister’s direction.
Which is, of course, what they are doing. We say that this shows that one of the important functions of these officers is to act, in a sense, as a kind of gatekeeper to the Minister’s power; you want the Minister to consider your request, they undertake this process of review and if they are satisfied that you come within the Minister’s criteria made in the guidelines, then it is referred. Turning over to page 410, there is a heading “When Power is Available/Not Available.” It says:
power to substitute a more favourable decision for that of a review tribunal is available only if:
and there are certain instances about that power. They are not critical to these cases but just to see that is a subject address. On pages 412 and 413 there is this recognition of the differences between initial requests and repeat requests. In relation to initial requests, we say that what is expected in relation to the 417 and 351 – and this is different in relation to the 48B guidelines – is that in one form or another the matter is to be referred to the Minister. If the officer thinks that they meet the guidelines, then it is to be referred in what is referred to as a submission, which is to say in more detail. If the officer thinks it does not meet the guidelines, it is to be referred by way of a schedule, which is to say that a whole of people are dealt with in one schedule and goes up. In due course, I will be taking the Court to some of those schedules so the Court will see what they look like, but this is where the initial and repeat requests are expanded upon in the policy.
GUMMOW J: This expression “are to be forwarded”, is there any source of that obligation in the Public Service Act structure?
MR LLOYD: We certainly say that under the Public Service Act the direction by the Minister, or the guidelines issued by the Minister constitute directions so that they are – and I think section 25 – under section 13 is the code of conduct which requires compliance with directions.
GUMMOW J: Section 13?
MR LLOYD: Section 13, I think.
HAYNE J: Cannot hear you, Mr Lloyd.
MR LLOYD: Sorry. It is section 13, I believe. I, for some reason, do not have a copy of the Act. I am not sure why.
HAYNE J: Of what? Section 13 of what?
MR LLOYD: Of the Public Service Act.
GUMMOW J: 1999.
MR LLOYD: 1999.
KIEFEL J: Section 13(5).
MR LLOYD: Yes, that is so. So we say it does link in that manner.
GUMMOW J: What is the authority of the Minister to give the direction under the guidelines – in the form of the guidelines?
MR LLOYD: We just say it arises from his position and status as being the responsible person under the Act and being responsible for his Department. He can issue guidelines which are, in effect, issued to the Secretary, then the Secretary can direct, which is, in effect, what is done through the policy document.
GUMMOW J: The term “guidelines” is slightly misleading. They are more than guides.
MR LLOYD: I accept that. We would certainly embrace that view, your Honour. The difficulty is that it is not expressly provided for in the Act that we say that the Minister has, as the responsible Minister, the ability to direct his officers to do things that are under and for the purpose of the Act at the very least and we say these things are, and that becomes a lawful direction and engages that conduct of ‑ ‑ ‑
GUMMOW J: Does it come out of the administrative arrangements ultimately under Chapter II?
MR LLOYD: Certainly that is how the Minister becomes responsible for that Department and for the legislation, that is true, your Honour. In paragraph 14 on page 414 there is the third paragraph that says:
Cases referred to the department by a review tribunal should be referred to the Minister in the form of a submission.
So this is a requirement where a review tribunal says something should be referred to the Minister, it is expressed as an affirmative obligation and not to be done as a schedule but as a submission. In 15.1 we have this notion that:
The MIU case officer is to provide the Minister with an analysis of all information relevant to the Minister’s consideration of this matter.
Which again we say is relevant to natural justice.
GUMMOW J: What is an MIU?
MR LLOYD: A Ministerial Intervention Unit.
GUMMOW J: Where do we see that?
MR LLOYD: I do not think it is going to be controversial, but I will find a reference for the long version of it. Then 15.2 refers to Australia’s certain non‑refoulement obligations apart from the Refugee Convention. Now, those obligations, I understand, are now the subject of the Act, although they have not yet commenced in operation and do not commence until April. Up until then – and I think even after that in respect of people who had already made claims – this mechanism was either the only or certainly the principal mechanism by which Australia can give effect to its international obligations. So that is something which is required to be assessed which we say informs the nature of the task, is an important task for Australia to comply with its international obligations. If the Convention Against Torture or something invokes or engages a non‑refoulement obligation, then what is said at the end of that section on 415 is that:
Non‑refoulement obligations . . . are absolute. This means that regardless of other considerations such as bad character, Australia has an obligation not to forcibly return a person to a place where they will face a real risk of torture –
et cetera. In the next paragraph discussing under “Assessing non‑refoulement obligations” we have:
officers should consider the personal characteristics and circumstances of each individual and the relevant country information.
We say that that is broadly analogous to a requirement to decide the matters on the merits of the case. The reason why I say that is because in the decision Attorney‑General of Hong Kong v Ng (1983) 2 AC 629 something to that effect gave rise to a capacity to seek relief when the decision was not being considered on its merits.
GUMMOW J: Should we look at that case?
MR LLOYD: Perhaps I will come back ‑ I was going to take the Court to Century Metals, which has a discussion of that case, a bit later on. I am informed that there is a reference to the long version of what MIU means in the Kaur book at page 141 at letter R. I am sure there are other references as well, but that is one at least. So going from page 415 ‑ ‑ ‑
GUMMOW J: What is the citation of that Hong Kong case? It is not on the list, I am told.
MR LLOYD: I am sorry, it is not, your Honour. It is (1983) 2 AC 629. I will refer to at least a discussion of it in the Full Federal Court in Century Metals a little bit later.
GUMMOW J: Well, we ordinarily do not go to secondary materials. Anyhow, go on, Mr Lloyd.
MR LLOYD: On page 416 at letter O, this is still under assessing the obligations:
In assessing individual cases, the MIU case officer should determine whether:
I note the fourth dot point:
there are explanations for any deficiency or inconsistency in the evidence –
We say that that is also relevant to procedural fairness expectations. There is then a section beginning on the bottom of page 421 for referring cases to the Minister. It notes that it can be referred in a submission or a schedule – that is the point I made earlier – and then it deals with cases referred in a submission. It says:
The purpose of the submission is to provide the Minister with sufficient analysis of information about the subject of the request to enable the Minister to consider whether to exercise a public interest power in the case.
Further down on that page there is a number of dot points which relate to the circumstances of the individual, which we say all suggest procedural fairness as well. Then, making it perhaps even clearer, on page 423 at letters G to I:
The department should generally not put to the Minister any unsubstantiated allegations made by third parties –
A bit later down, if they are thought to be serious then:
the information should generally be put to the person to give them an opportunity to comment, unless there are reasons where this may not be appropriate, for example, where it may result in potential harm –
et cetera – again, relevant to natural justice. Then under 18.2, the officer who undertakes these assessments is allowed to, or is at least empowered to, indicate a preferred option for the Minister – that is to say, make a recommendation. I make this point only because it is put against us that all they are doing is making inquiries. That is the full ambit of what they are doing. We say they are making inquiries, but they are assessing people against criteria, they are assessing people against Australia’s international obligations and they are making recommendations, or at least they are empowered to do those things and are required to do some of them as well.
Turning to page 428 there is a reference to what has to be done for cases referred to on a schedule. It may be seen, if nothing else, from the breadth of the discussion that a lot less has to be done but, even then, there is still some amount of information about the individual that has to be placed because, of course, the Minister has to be in a position to decide if he wants to take it further – so we still say scope for adverse material to get into that kind of scheduled response as well.
FRENCH CJ: We are still within the framework of a policy instruction which is part of centralised departmental instructions system that is referred to at 404 and this is distinct from ministerial guidelines which follow which are expressed in the first person?
MR LLOYD: They are in relation to the 351 and 417 guidelines, not in relation to the 48B guidelines.
FRENCH CJ: I see.
MR LLOYD: Yes. My friend is saying these are not the guidelines. I am not saying these are the guidelines, but I am saying, when the Court looks at the 48B guidelines, they are expressed a bit differently, but going ‑ ‑ ‑
FRENCH CJ: But we are not looking at the moment at the ministerial instruction.
MR LLOYD: No, that is so.
FRENCH CJ: It sort of emerges from something called CDIS.
MR LLOYD: That is so. So the Minister’s guidelines begins at page 437 and it itself refers to the policy instruction:
This policy instruction, which is part of the centralised departmental instructions system (CDIS), was re‑issued on 14 September 2009 to provide guidance on applying ministerial intervention requests received on or after 14 September 2009.
Then there is a summary of the guidelines. So this is about the guidelines proper. Then the purpose of the guidelines is noted at the bottom of page 438. I note one is to:
inform departmental officers when to refer a case to me so that I can decide whether to consider exercising –
et cetera. Then over on to page 440, “Cases Which May Be Finalised Without Further Assessment”. None of those apply in the present case except, I note, that repeat requests are one unless a tribunal has recommended it for the Minister’s consideration. Then on page 441, “Cases Which Are To Be Brought To My Attention”. Then there is a discussion there of the “Public Interest”:
responding with care and compassion where an individual’s situation involves unique or exceptional circumstances.
Which we say must involve some assessment of those circumstances. He says:
I will generally only consider the exercise of my public interest powers in cases which are referred to the department for my consideration by a review tribunal or which exhibit one or more unique or exceptional circumstances.
That are the two instances. “Referral By a Review Tribunal” is discussed in paragraph 10 and that is generally to be done by way of submission from the policy. Then in paragraph 11 it deals with the “Unique Or Exceptional Circumstances”:
The following factors may be relevant, individually or cumulatively, in assessing whether a case involves unique or exceptional circumstances –
and I will not read them out, but I note that they turn upon the individual circumstances and refers again to the international obligations, amongst other things.
FRENCH CJ: The referral by a review tribunal, if I can just go back to that, that is not a statutory process, that is just where a situation arises in which a tribunal, for example, ruled down to affirm a decision refusing a visa but thinks it is worthy of ministerial consideration.
MR LLOYD: That is so, precisely so. That, or something similar to that, although not by review tribunal per se, was done in the Kaur Case where Justice Jacobson recommended a referral to the Minister. Then over onto page 444, it is paragraph 13, which is in stronger terms:
The procedures set out below are to be followed, in order to ensure the efficient administration of my public interest powers.
Then there is a further discussion of what needs to be done when there is a decision by a review tribunal. Then under paragraph 16 it deals with the initial requests concept and at the end of that first paragraph:
an officer is to assess that person’s circumstances against these guidelines and:
· for cases which fall within the ambit –
it is to be brought to his attention by way of a submission.
· for cases falling outside the ambit –
then just “a short summary”. We say that shows that the task is one of assessment of a person’s individual circumstances by reference to the criteria and issues, public interest issues, identified by the Minister. Then repeat requests are dealt with in paragraph 17 and it notes at about letter I:
In limited circumstances, a repeat request may be referred to me where the department is satisfied that there has been a significant change in circumstances which raise new, substantive issues not previously provided or considered in a previous request –
The bit I did not read, the nub of which is, he does not want to see repeat requests unless there has been a change of circumstances. So that is section 417 and 351 guidelines. Page 454 deals with the ministerial intervention under 48B. That discussion there is again by way of the policy, but the guidelines are set out at 463:
These ministerial guidelines are to be used –
This is 171 point 1 at T:
These ministerial guidelines are to be used by decision makers when considering whether to forward to the Minister cases that the Minister may wish to consider using the ministerial non‑compellable and non‑delegable power to allow a person to make a further PV application.
Then over to 465, “Scope of these Guidelines”:
These Guidelines are to be used in considering every:
·purported further PV application and/or
·request for ministerial intervention under s48B.
So that is every one of those instances. At 173.3 at about letter M:
must be assessed against these Guidelines.
Then similar language is used at letter Q:
must be assessed against these guidelines -
and at letter T.
Then over the page at 466 there are three instances identified which the guidelines primarily deal with, “refugee sur place” claims, so something has happened while the person is here, “other new claims” and then the third dot point is where the detention centre staff are responsible for meaning that someone misses out for some reason. Then over to 469, “Responsibility of Decision Makers”. Now, here, the language is perhaps a bit unusual, but even core decision‑makers under these guidelines:
The decision maker should consider all relevant information currently available to them, including updated country information, in considering a purported further application –
I note 178.2 and 178.3 “should refer the case”, et cetera, so that is those statements. I think Mr Prince, to the extent that he needs to, will refer similarly to the guidelines relating to section 195A. We say it may be seen that the officers are to follow the procedures specified by the Minister, so all initial requests should be assessed under the guidelines and referred to him – that is request number 351 and 417. All repeat requests are to be analysed to see if there is a change in circumstances.
If I can move on to my next topic, which is the nature of the power being exercised, we contend that the conduct of these MIU officers is undertaken under and for the purposes of the Migration Act, sufficiently to attract an obligation to accord procedural fairness. At least, that is so absent words of plain intendment, of which there are none here.
FRENCH CJ: Just before you go further, can I just come back for a moment to your opening remarks about the nature of relief. I think you used the term “quashing the assessment”, and looking at S10 at page 4, the decision you identify – by that you refer, do you, to the decision identified in paragraph 6 of the relief:
the decision of the Second Defendant or his officers . . . that the Plaintiff did not meet the Guidelines ‑ ‑ ‑
MR LLOYD: Yes, there are two decisions in S10. One is in relation to 48B, that they did not meet the guidelines and therefore it was not referred, and so the Minister has no ultimate function ‑ ‑ ‑
FRENCH CJ: Strictly, it did not meet the criteria for referral under the guidelines.
MR LLOYD: Exactly, and then the second one was under 417. There was a referral to the Minister but in a schedule, and we say that that was infected by error as well. In M61 243 CLR 319, this Court considered whether decisions made in support of similar ministerial powers were made under the Migration Act so as to attract procedural fairness. The Court found that the Minister had started the process of consideration by issuing directions as to how assessments would be made and when and how cases would be referred to him. The conclusion of that discussion is at paragraph 71.
It may be observed that in M61, the Court, even though in some cases matters will not be referred to the Minister in that instance, for example, if there are found not to be refugees – that did not in itself preclude a characterisation of the task as a whole as being a request that had the gun, and the Court says that at paragraph 67, about six or seven lines from the bottom of the page, being page 349. We say that the approach is equally available in the present four cases.
While the content of the guidelines are different, they still reveal an intention that officers should apply them to all requests for exercises of the statutory powers. While it may not be necessary in the present circumstances to reach a conclusion in order to justify or support the legality of detention, as it was in M61, we say the same ultimate conclusion should be reached because the Minister has approached his power in materially the same way, which is to say issuing guidelines and getting other people to undertake an assessment of them in the first instance in order to assist him in his task in deciding whether to exercise public interest powers under the Act.
In addition, we rely upon the statutory scheme that I have already outlined for supporting the view that what is being done is under and for the purpose of the Act in analogous way to M61. We say it would be a curious approach to say, as the Minister does, that the same conduct to assist the Minister under section 195A under the Act is under the Act in a case such as M61 but not under the Act in a case such as S51. So in our case there is a section 195A issue which, as we understand it, they say is just done by non‑statutory executive power and is not done under the Act. We say even though the particular guidelines being considered are different to the ones considered in relation to the offshore entry persons, it is still the same statutory power and there are still assessments being made under guidelines.
BELL J: How do you deal with the contention respecting the 417, 351 and 48B provisions that there has been a process of assessment and review undertaken before one gets to this stage? It does seem to be a, on one view, significant distinction.
MR LLOYD: Well, we do not dispute that it is different. I suppose we dispute that it is significant because we say the nature of the task of what is being done is the same which is someone other than the Minister, who is the only one who can exercise the power personally, is being directed to work out which one should be sent to the Minister. So they play this gatekeeper role and the gatekeeper role is enough to make it done under and for the purposes of the Act. We say that there is no reason that preparatory conduct for making a decision of the kind that these officers are doing should be characterised as not being under and for the purposes of the Act.
If I can take the Court to the decision in the Federal Court of Justice Gummow in a case called Yaa Akyaa v Minister for Immigration & Ethnic Affairs. It is unreported but at least has the citation attributed by [1987] FCA 137. This was a challenge to a decision, or a recommendation, of the DORS Committee, as it was known, a Determination of Refugee Status Committee, which made a recommendation to a delegate in relation to a person’s refugee status. In the circumstances of this case the Court found that there had been – I should say that the recommendation fed into a statutory decision.
GUMMOW J: Did it not depend on the words “in connection with” in the AD(JR) Act?
MR LLOYD: We say not for this reason. I accept that your Honour does refer to it in connection with as providing that there is a ground of review in the sense of there is an available ground under the AD(JR) Act, but the AD(JR) Act, we say, does not per se give rise to obligations of procedural fairness in respect of every decision under an enactment. There has to be an obligation to accord procedural fairness and when it is breached, you can get relief under the AD(JR) Act if it is made under enactment or in connection with. So it was sufficiently in connection with to fall within the jurisdiction under the AD(JR) Act to give relief, but we say it is an anterior question whether or not there is an obligation to record procedural fairness. I do not readvance it more than as an example of the situation where a non‑statutory advisory body makes a recommendation, in so doing denies procedural fairness and ‑ ‑ ‑
GUMMOW J: Paragraph 36.
MR LLOYD: Yes, especially the end of paragraph 36:
no point was taken that if natural justice had been denied in the proceedings of the DORS Committee, the decision of the Delegate, as one made under the Act, was in any better position. If taken, the point would not in my view have been correctly taken. There would still have been a breach of the rules of natural justice “in connection” with the making of the decision –
The “in connection with the making of the decision” is what gave the court power to grant relief if there is a denial of procedural fairness in connection with, but our point is that the denial of procedural fairness arose because an obligation to accord procedural fairness arose and then the AD(JR) Act then provided a mechanism for getting relief. The obligation to accord procedural fairness does not arise because there is a court you can go to to get relief. There would, we would have said – we say that in those circumstances, assuming the DORS Committee were all officers of the Commonwealth or representing the Commonwealth and I think they all were, an action could have been taken in this Court and denial of procedural fairness would have still amounted because their task was one for which procedural fairness was required.
The other case which I would refer to in this context is the decision of the Full Court of the Federal Court in Century Metals and Mining v Yeomans 40 FCR 564. This is a somewhat different case again but we advance it as an example of – I should repeat that all of this is going to my submission that there is no reason why preparatory conduct to assist someone in exercising a statutory power should not attract procedural fairness. So Akyaa, we say, is an example where that happened. Century Metals is one where a liquidator was asked by the Minister outside of either the liquidator statutory power and possibly outside of the Minister’s statutory power to ask him, although that was not the problem in the case, to undertake an inquiry as to the desirability of continuing mining at Christmas Island.
The relevant passages are starting at 576. About the middle of the page there is a reference there to the Minister issuing a media release in which he says that he has asked for an inquiry to be undertaken. Then going to page 585, there is a discussion of the nature of the liquidator’s task, especially the last two paragraphs on that page and over to the top of 586 shows that it was a non‑statutory process. The inquiry by the liquidator at least was not statutory. There was a capacity for the Minister under a statute to express a view but not to request or require Mr Yeomans to undertake an inquiry.
Then, going to 588, there was a challenge that, inter alia, Mr Yeomans had failed to meet the requirements of procedural fairness. On page 590 - this is the reference I indicated to the case of Attorney‑General (Hong Kong) v Ng. During the luncheon adjournment, perhaps, I will get copies made of that case for the Court.
It was a case in which, as summarised there, the Hong Kong Government had made a representation that in respect of illegally entered persons it would consider each case on the merits. It had not considered this particular person’s case on the merits and, saying that it would consider it on the merits was enough to attract procedural fairness and also was a basis to give the person sufficient interest to pursue relief in respect of the failure to accord procedural fairness.
Turning back to the Century Metals Case, on page 592, at the top of the page, there is a reference to applying the principles in the Hong Kong Case. At the bottom of the second full paragraph:
although there was no statutory requirement that the liquidator or the Minister proceed by way of an independent, impartial and thorough inquiry, the doctrine of procedural fairness entitles the appellant to hold the Minister to his promise that this procedure would be followed.
The net result in relation to the form of relief was, amongst other forms of relief on page 601, that there was a quashing of the liquidator’s recommendations in his report.
HAYNE J: Does acceptance of this branch of your argument entail that the court undertook at least one, perhaps several, unnecessary intermediate steps in getting to the conclusion reached in M61? I have in mind especially what appears at paragraph 66 of that judgment, 243 CLR at 349, paragraph 66, and perhaps the second path of the paragraph.
MR LLOYD: As I understand the reasoning in M61 there was, in a sense, an anterior question that at least arose collaterally as to the validity of the detention and there was perceived to be a tension between possible outcomes, and in order for the tension to be valid it would only have been valid if the person was being detained for one of the permissible purposes under the Act and, for that matter, under the Constitution, one of which was because the person was applying for a visa.
Then a question arose whether or not this process could be characterised as being under the Act. We would say that it may well be because of the detention issue it was essential to resolve that, but what we would also have said is that – and perhaps I would accept what your Honour says – on our argument there could have been a short depart because apart from anything else on our argument we would say even if what was being done was non‑statutory executive power, as the Commonwealth said, we would still say procedural fairness was enlivened, so it did not have to be under the Act at all.
All of that first discussion in M61 is for the purposes of characterising it as being under and for the Act. That was important to make it –the detention lawful, but we say it is not a prerequisite for procedural fairness to be owed in the circumstances of these kind of powers that it be under or for the purposes of the Act, so I think I would have to accept that on our argument M61 could have been resolved in a different way. Having said that, there was an issue for the Court as to whether it was under the Act or under the non‑statutory executive power. The detention issue had to be resolved because otherwise it would have been unlawful.
HAYNE J: It was common ground in M61 that detention was lawful.
MR LLOYD: Well, indeed, but what had to be resolved was in effect the basis by which it was lawful and how that impacted upon the particular issue, which was what they were doing, and because in order for it to be lawful it had to be being held for the purposes of the Act for an application under the Act, that was critical to construing whether or not what was being done was under the Act, but we do not say that ‑ it was critical in the circumstances of that fact and it made it strong and clear that it was under the Act but we do not say that it was essential.
We do not say that detention in those circumstances was essential for this kind of task to be perceived as being under the Act, and we say that there is no reason why other provisions drafted in materially analogous terms cannot be analysed in the same way when guidelines are issued which says, “I want my officers to go off and assess requests made to me against criteria which I am specifying as indicating what the public interest is”, and that is enough to make it under the Act.
We would, as I say, say in any event even if it was executive but non‑statutory power the same would follow, so I have to accept what your Honour says, that on our argument there would have been another way to get to the same result.
GUMMOW J: The other way being what?
MR LLOYD: Well, there are two other ways. One other way would be to say that irrespective of the question of detention the mere fact that the Minister had issued a direction asking the officers to make the assessments would be enough to be for the purposes of the Act, even if – I suppose what I am saying is even if the question of detention was not relevant at all because the Act could constitutionally have allowed detention anyway, we would say that the same result should follow just by the means of the Minister issuing guidelines to get his assistance for the purposes of the Act.
The other alternative ‑ we would say two other alternatives we rely upon – one is the non‑statutory executive power we say is sufficient to attract procedural fairness, and although I would probably prefer to put this as more supporting that second one, the Datafin analysis of it being a public function we say is enough to attract procedural fairness, at least in the circumstances of this kind of function where they are looking at assessing people against criteria.
KIEFEL J: On one view, questions about whether statements made in documents made public create a legitimate expectation is quite a distinct question from whether action indicates a commencement of action taken under and for the purpose of the Act. The two are quite distinct. You seem to be suggesting that there is some intersection between the two or that in some way the statements made in the documents giving rise to the legitimate expectation somehow feed into the question of whether something is under and for the purpose of the Act, and I do not quite follow how that occurs.
MR LLOYD: No. The legitimate expectation aspect of our argument is, in a sense, additional to the notion that ‑ ‑ ‑
KIEFEL J: It stands quite distinctly, is that how you put it?
MR LLOYD: Indeed, it stands distinctly. I suppose it does assist as well in saying natural justice applies, but it also has assistance in our case in showing that our clients have an interest of a kind sufficient to pursue it.
KIEFEL J: I see. But what does it say about the Minister commencing upon some process under the Act?
MR LLOYD: I think that the legitimate expectations principle does not say anything about whether it is under the Act. It would arise even if there was no Act and the Minister made the same thing, we would say it applies.
KIEFEL J: I follow. So how do you, in summary, say that the policy documents and the guidelines indicate that the Minister is actually undertaking a function, a task?
MR LLOYD: We say the officers are undertaking a task under and for the purposes of the Act.
KIEFEL J: Because the Minister has that in mind?
MR LLOYD: Because the Minister has asked them to assist him in exercising his power under the Act, or considering whether to do it, and so in that sense they are sufficiently closely connected to his powers under the Act, but what they are doing is done relevantly under the Act such that procedural fairness obligations would be implied to their functions as it would be to his functions, we would say.
CRENNAN J: Does it matter that there might be a distinction between considering whether to exercise a power and acquiring inquiries to be made and information to be provided so as to be in the position to decide or so as to be in a position which would be captured by saying the Minister may consider exercising the power? I mean, is the precise characterisation of whether or not the Minister has embarked on the consideration, taken some initial step to it, crucial to your argument or does your argument really depend more on your merits review point, that is to say, that the guidelines require the assessment of persons by reference to criteria?
MR LLOYD: We accept that they are two ways. There is another way in which we say it is under and regulated by the Act which is addressed in our submissions in‑chief at paragraphs 52 to 59, but in particular at paragraph 56 where we note that the exercise of the power in each of these cases requires, as it were, a jurisdictional fact, being the Minister’s satisfaction about whether something is in the public interest and we say, in essence, that the precondition to these powers requires the Minister to be able to, if he wishes, form an opinion in respect of particular persons as to the demands of public interest.
A submission or schedule in the preparation of which procedural fairness has been denied does not enable the Minister to form that opinion. So it comes as an implication of the need for the Minister to be in a position to know whether or not to exercise the public interest powers that people who are assisting him to provide him with information relevant to the public interest powers do so, we say, in accordance with procedural fairness. That is a different way of saying that it is under the Act for the purposes of procedural fairness being an implication, but it is there as well.
Perhaps, in essence, we put it in our submissions in three ways. One is analogous to M61, that is, by doing it starts the process of consideration. Secondly, the matter I just mentioned and the third analysis which I was not going to address orally but is in our submissions I think at about paragraph 60 for the next 10 paragraphs, which deals with an analysis by Justice Merkel in a case called Ozmanian and a notion of the Carltona principle which is another way of getting to the same result. We do not prefer that approach, but what we have to say on it is set out at those submissions.
KIEFEL J: His Honour’s decision was, from recollection, overturned by a Full Court.
MR LLOYD: That is so, your Honour, but your Honour may also recall but not that issue. The Full Court overturned it on the basis that ‑ ‑ ‑
KIEFEL J: On the question of a declaration.
MR LLOYD: ‑ ‑ ‑the Court did not have jurisdiction because it was said that the preparatory conduct – and this in itself supports us – of the officer in not referring it to the Minister in that case was so closely connected to the Minister’s exercise of statutory power that the provision excluding jurisdiction in respect of the Minister’s exercise of statutory power extended to delegates deciding not to refer it to the Minister with the result that this Court is the only court that can deal not only with the Minister’s decisions under these provisions, but also delegate officers’ decisions.
So we say in any sense what the Full Court said in Ozmanian provides another slightly indirect way of saying, well, if a decision of an officer not to refer something to the Minister is so closely connected to the Minister’s power not to exercise the decision that the Federal Court did not have jurisdiction over it, then that is because it is so closely to the exercise of the power under the Act and we say that that both the Full Court decision in Ozmanian and Justice Merkel’s reasoning in relation to Carltona support that conclusion.
If I move now to executive power which I have, perhaps, already foreshadowed. We have this as an alternative argument. If the Court is not persuaded that all the conduct has been done under the Act in the relevant sense so as to attract procedural fairness, we say that it is done under some form of executive power under section 61 of the Constitution and we say that the obligation to accord procedure – well, if I put it the reverse. We say that is not correct that the exercise of executive powers under section 61 is immune from obligations to accord procedural fairness.
I note that no one on the other side of the Bar table advances that. I think South Australia accepts that it would be subject to procedural fairness in some cases if someone had an interest that was directly affected. The Minister says it is conceivable that it is subject to procedural fairness but, in effect, says you do not have to decide that because we do not have a good enough interest. I will get to interest in due course. So there is no one really against us on the proposition that non‑statutory executive power under section 61 is subject to procedural fairness so it is a bit about boxing at shadows, but if I just say these things ‑ ‑ ‑
FRENCH CJ: Just before you do, can I go back for a moment to the basis upon which the guidelines themselves are issued by the Minister and they are expressed in terms of a ministerial first person, as we discussed earlier. You spoke of the authority or the status of the Minister in a rather general way, not being able to find, and there is not any statutory route for the guidelines. So then does the issue of the guidelines involve an exercise itself of executive power by the Minister under section 61 in the execution of the laws?
MR LLOYD: It undoubtedly involves an exercise of executive power under section 61, but whether it is non‑statutory executive power. It may well be that it is implicit in the Parliament saying that the Minister will consider these matters personally, that the Minister can formulate some guidance as to a mechanism whereby he can have a gatekeeper to say what he will look at, otherwise one is left with the position that he cannot tell anybody what he is interested in, no one gets to know what he is interested in and so no one knows what to send to him and his desk gets cluttered with thousands of these things. So we are content with the view that there is an implication under the Act that he can identify the criteria.
FRENCH CJ: And what binds officers to comply with those guidelines?
MR LLOYD: I think we would rely again on the Public Service Act provisions, that they should do as directed and we would say that includes pursuant to a direction either made directly by the Minister or in respect of which the Secretary has at least implicitly directed them to work. So going back to the question of executive power, as I say, I was boxing at shadows, but what we do offer and by way of assistance is that in England there seems little difficulty with the idea that their prerogative powers can be subject to procedural fairness obligations. If I can just give two citations by way of example. One is Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374. In England of course the public service at least then was governed by the prerogative unlike ‑ ‑ ‑
GUMMOW J: Well, exactly.
MR LLOYD: I accept that, your Honour. That is why I am using it as an example of natural justice getting in to the prerogative.
GUMMOW J: All I am saying is they were starting 100 years behind the ball, really.
MR LLOYD: That is so. I should say, the fact that we say the fact that there is in Australia now, I think uniformly in all States, Public Service Acts in all States, and the Commonwealth strengthens our position that what people are doing are things of a legal obligation and pursuant to statutory obligations to follow directions. The other case is the Criminal Injuries Compensation Board; Ex parte A [1999] 2 AC, and I actually managed to not write down the page reference, I apologise.
I know that this Court has not wholly embraced the denial of procedural fairness made out, or said to have been made out or held by the House of Lords to have been made out in that case. But putting aside that, that is an example of a non‑statutory scheme, the compensation scheme, giving rise to procedural fairness obligations. I only use it to that extent.
GUMMOW J: You refer to FAI v Winneke in your footnote 87. That is talking about State statutory executive powers.
MR LLOYD: That is so.
GUMMOW J: Is there any case dealing with federal non‑statutory executive power?
MR LLOYD: Yes. Perhaps no is the answer directly, but there are two references I will give the Court – in Peko‑Wallsend 15 FCR 274. I should say that the decision in Akyaa, what the Dawes committee was doing, was determining whether or not someone had refugee status. That assessment itself was not done pursuant to the Act. It had relevance for an Act, but the assessment was not done pursuant to the Act. So that could be seen as another example. But going to Peko‑Wallsend (1987) 15 FCR 274, there is some discussion of relevance by Chief Justice Bowen on page 277 immediately below the reference to the GCHQ Case or, here called, the CCSU Case. His Honour says:
The present case is one raising a question as to denial of natural justice or procedural fairness, which certainly is one of the grounds on which intervention may be appropriate.
Then under the heading “The prerogative” he looks further. At about the third sentence:
A Minister acting under a prerogative power might, depending upon the subject‑matter, be under the same duty to act fairly as in the case of his acting under a statutory power.
I accept that that is not the highest assessment of it, but that is one. Justice Sheppard, in the same case, on page 281, principally in the second full paragraph on that page, also countenances the suggestion as well. We certainly cannot find any example. None has been put against us of a case where this Court or any court has said non‑statutory executive power of the Commonwealth is completely free from procedural fairness obligations. Obviously there would ‑ ‑ ‑
GUMMOW J: But first you have to isolate what is the non‑statutory executive power you are talking about in this case. What is it? It is not a prerogative.
MR LLOYD: It is the making of inquiries, the assessment against criteria ‑ ‑ ‑
GUMMOW J: What is its foundation? Where does it come from?
MR LLOYD: We say of course it is done under the Act, so this is all in the alternative, an assumption, the court rejects the view that it is done under the Act.
GUMMOW J: The Chief Justice put it to you: is it executing the law?
MR LLOYD: We say it is. We say that they are required to do, and expected to do and asked to do, things by the Minister and undertake a function to assist the Minister and by making inquiries, making assessments, assessing people against criteria and/or making recommendations or making decisions to not send a request to the Minister – that all of those things are of a public function and if they are not done under the Act then they can only be done under section 61, executive power.
HAYNE J: But does the argument also possibly wear this aspect, that a public servant is directed, lawfully pursuant to the Public Service Act, to make an inquiry into a question which affects an issue which would permit but does not require consideration of the exercise of a ministerial power that if exercised would affect the rights of an individual? That is the circumstances in which we find ourselves, is it not?
MR LLOYD: That is so.
HAYNE J: This branch of your argument would seem to be that the direction given pursuant to the Public Service Act to inquire is a direction that must be hedged about with requirements as to procedural fairness. It must be hedged about with requirements as to procedural fairness because of the nature of the subject matter of inquiry. Now, the difficulty that is presented is that the subject matter of the inquiry has this two stage or degree of remove from immediate affectation of rights, interests and duties which has been seen as important, I think, in the way earlier cases have been argued.
MR LLOYD: Well, I will come -under, I think, probably the next heading to the question of interests. I accept that we need to satisfy the Court that our clients have a sufficient interest in the benefit of a potentially stand again through the statutory scheme to attract procedural fairness. But my current submission is on the premise that if their interest is sufficient there is nothing that precludes natural justice from being attracted to this kind of conduct, if I put it in a broad and hopefully neutral term.
HAYNE J: But short of the proposition that the Public Service Act does not lawfully permit a direction to a public servant to make inquiries about an individual having this degree of interest – what a writ properly may be described as – without according procedural fairness, where is the argument?
MR LLOYD: We say that Yeomans is such a case, the Century Metals Case. In that case the Minister had no express statutory power to ask Mr Yeomans to make an inquiry. He just decided to do it. He announced that he would do it and procedural fairness accrued in the circumstances of that case. We say if there was no Public Service Act, if the Minister nonetheless asked officers of the Commonwealth who were engaged in a department, whether through contract or under the Public Service Act, to undertake functions of this kind to assist him in potentially exercising a statutory power that would be a lawful direction for them which they would be required to do in their functions, at least required sufficiently so that the constraints of procedural fairness could protect the interests of people who are the subject of the inquiries and assessments involved. I am not sure that I can take it further than that.
FRENCH CJ: Is executing the law – sorry, the execution of the laws of the Commonwealth a wider concept than carrying out a function under a statute?
MR LLOYD: This is within section 61?
FRENCH CJ: Yes, because you are taking 61 as a fallback position.
MR LLOYD: Indeed. Certainly, we would say for our part ‑ because of course my client has no interest in saying it is beyond the power of these officers to assist the Minister – we would say that that expression at least includes assisting the Minister in his functions under an Act. Even if it is an assistance of a kind which is not expressly envisaged by the Act, although I have already said I think it is probably implicit that it is envisaged, the Minister could ask for assistance in the exercise of those personal powers and he does not have to do everything himself.
I should say that issue that I have just been making submissions about was the subject of our first section 78B notice. There was a second section 78B notice issued because the Commonwealth advanced in their submissions an argument to the effect that what they are doing is a non‑statutory executive power of a kind that a natural person could do, which enlivened in our mind the issues which is still pending before this Court in Williams and so we issued that section 78B notice.
Upon further reflection, we do not really want to say anything further on that point than what we have put in writing in relation to that issue because in the end we only use the point to say that if there is a choice between saying they have no power whatsoever to exercise such – to exercise the powers of the capacities of a natural person which was, as we understand it, part of the argument of Queensland in the Williams Case, then that would support a construction.
If that is how the Constitution is properly to be construed then the notion of what comes within the execution of the laws of the Commonwealth should be sufficiently broad so that the activities and the conduct of the officers in this case would fall within that and therefore also within the notion of being done under the law, such that procedural fairness would attach to it. I do not wish to say anything further than that.
In relation to Datafin, the only other matter that I note is we have referred in our submissions, of course, to an earlier decision of this Court in Forbes. I will not take the Court to it, but I will give the citation. It was also consistent with Datafin – Forbes v New South Wales Trotting Club (1978) 143 CLR 242. In that case a private body was subject to judicial review jurisdiction involving natural justice in relation to the handling of the exclusion of a person from a racecourse.
We say that if natural justice gets into circumstances where private bodies are exercising public type functions, as discussed also in Datafin, it should certainly get into a situation where Commonwealth public servants are exercising functions pursuant to a direction of kind from the Minister. Whatever be the status of that it is sufficiently public for the common law to impose protective constraints by way of procedural fairness.
I now turn to the question of the interests of the plaintiffs. If it is accepted that the officer was subject to procedural fairness obligation or potentially so, if the persons had a requisite interest, one then needs to identify what is the requisite interest and first of all we say that the plaintiffs have an interest in relation to the conduct of the officers of a kind that confers upon them, or potentially confers upon them, a benefit under a statutory scheme.
Now, as to the basic approach to what interest is required, in terms of general terms, a convenient summary of it is in this Court’s decision in M61 243 CLR at 352 at paragraphs 74 and 75. That is in a discussion in which the Court rejected the Minister’s then narrow approach to the ambit of rights and interests. We rely upon the broader notions discussed in those paragraphs. We also rely upon a passage from Justice Brennan’s judgment in Kioa v West 159 CLR, which is set out in our reply submissions at paragraph 35. It is pages 616 to 617 of the reports and that says:
It is hardly to be thought that a modern legislature, when it creates regimes for the regulation of social interests – licensing and permit systems, means of securing opportunities for acquiring legal rights –
We say we fall within that –
schemes for the provision of privileges and benefits at the discretion of Ministers or public officials –
We say we fall within that description –
intends that the interests of individuals which do not amount to legal rights but which are affected by the myriad and complex powers conferred on the bureaucracy, should be accorded less protection than legal rights.
So it is hardly to be thought that they should be accorded less protection than legal rights. In the present case each of the plaintiffs have requested the Minister to exercise his discretionary power, which would have, if exercised, conferred important rights, either a visa or under 48B an opportunity to apply for a visa. We say that this readily falls within Justice Brennan’s description of the legislative scheme “for the provision of privileges or benefits at the discretion of the Minister”. While we say that is sufficient we say there is much more than that in this case.
In the present context the Minister has issued guidelines which, inter alia, set out procedures to be followed and indicate which aspects of public interest are considered important, or potentially important. This is in the context of an act which regulates who may charge to provide services for assisting people making such requests, limiting the authority to persons experienced and knowledgeable in migration matters. Persons then do spend money on getting registered migration agents to assist them with making these requests to answer the issues raised by the Minister in relation to the guidelines.
As indicated already the guidelines turn, in many respects, upon the personal and peculiar circumstances of each individual involved. The Minister has also erected an administrative construct whereby the requests will be considered and analysed with possible reference to him.
We would say the present is not a case where someone just hopes that someone might build a school near them or fix a road or something along those lines. It is somebody who is pursuing rights as an individual. The present are cases where the plaintiffs seek to access a benefit or privilege available to individuals within the grant of the Minister under a statutory scheme under which they are expected to make out a case against criteria or guidelines made or adopted by the Minister. So we say that that is all part of the interest and then adding to that is what we say, under proper construction of the guidelines, it is clear that the Minister requires the merits of the case to be assessed which implicitly brings in at least aspects of procedural fairness and also an interest sufficient to allow the person to ensure that procedural fairness is, in fact, provided, as in consistent with the legitimate expectation cases which I have referred to earlier such as Hong Kong v Ng and Century Metals.
So we say all of those things are sufficient interest in each of the four cases. There is an additional interest in the S10 case, but I will deal with that when I get to S10. I think there is also an additional interest in the S51 case which Mr Prince will address. There is a subsidiary question about the expression “directly affected”. It is put against us by, I think, both of the respondents that the interests have to be directly affected. In the South Australian submissions, in footnote 4, there a number of authorities from this Court that are advanced to support that.
GUMMOW J: Footnote 4, is it?
MR LLOYD: Footnote 4, in the South Australian submissions.
GUMMOW J: Does that term “directly” come out of those cases?
MR LLOYD: No, we say it does not come out of those cases, which is the point that I was going to make. We accept, of course, that in M61 this Court on two or three occasions said that the interest there was directly affected but we say that on none of those occasions it was posited as a minimum requirement. It was just that it was in the circumstances of that case. The closest one gets to it being specified as sort of the test which is the case more specifically relied upon I think by both of the respondents is Justice Wilcox’s comments in the Peko Wallsend Case 15 FCR 274.
GUMMOW J: 284?
MR LLOYD: 274.
GUMMOW J: Where is the passage?
MR LLOYD: On the top of page 306. What we say, and we have said it in our reply to the South Australian submissions, is two things. One is, we think when Justice Wilcox’s comments are read in context, although he does refer to direct and immediate effects, it is really with a concern more to decisions which have financial implications for many, many different people and him seeing it as being unworkable. We say that there may well be instances where procedural fairness is not owed, especially if financial disadvantage is a result because there is not a direct effect, but just for other principles to do with the extent of procedural fairness that affects many people.
The other thing we say is that both in relation to his Honour’s reasons from 1987 and those in the decision McInness v Onslow referred to by his Honour, that since 78 and 1987 there has been significant developments on this subject in this Court, such as in Annetts and the like, and we say that this should not be understood as a binding indication of a direct effect. In M61 where the relevant discussion is at paragraphs 74 and 75, which I noted earlier, there is no discussion there that it has to be a direct effect.
Then finally we say if, contrary to what we have just said, there is a requirement that there be a direct effect, one has to understand that requirement in the context of the interest. If your interest is an interest of the kind that Justice Brennan foreshadowed in Kioa, namely, that the interest in obtaining a right or benefit – a putative right or benefit under a scheme that you do not have, how much more direct can it be than what has happened here where it is not being referred to the Minister or it is being referred to the Minister, if I put it broadly, inadequately? We say that having regard to the interests that we say we have, there is a direct effect on them and insofar as our interest is comprised by an expectation that procedural fairness will be accorded, then the non‑according of it is a direct breach of that interest and it is a direct effect if that is the test.
FRENCH CJ: How does procedural fairness bite upon the guidelines? Is it a common law rule which qualifies them or is it sort of an exudation of the statute as an aspect of the common law rule of interpretation?
MR LLOYD: For our purposes, we would say that it is a common law rule and that although this Court perhaps not finally resolved the question, the current Annetts v McCann line of authority favours the idea that natural justice arises in the common law, it perhaps has this significance. We say if that is right, then – I do not that it affects the outcome of this case in any way ‑ ‑ ‑
GUMMOW J: But to say it is part of the common law – to say it is common law is an incomplete statement.
MR LLOYD: What I was going to say ‑ ‑ ‑
GUMMOW J: When you have a constitutional written structure.
MR LLOYD: Certainly.
GUMMOW J: Otherwise you start getting back to the theory which I thought was dead which was that somehow the common law is above and controls the Constitution itself rather than the other way around.
MR LLOYD: No, we certainly do not suggest that. What I did want to embrace was the notion that the common law has developed principles for ‑ ‑ ‑
GUMMOW J: Because the earlier theory is some sort of recreated natural law theory, I think, and I would have thought it had withered.
MR LLOYD: Perhaps I am not saying that either. I am not attracted to adopting it, especially when your Honour characterises it in that way. What I wanted to say was to put it in these terms, because I do not think for this case it makes a difference where it arises or how it arises, but through the common law in the sense of cases decided by courts, principles have been derived according to which relevantly executive power, whether it be statutory or non‑statutory, is constrained ‑ ‑ ‑
GUMMOW J: It is a second step, you see, when you say whether it be statutory or not. It is the “or not” that starts to give one pause.
MR LLOYD: Insofar as the common law has applied natural justice to club cases, and cases like Forbes, we say ‑ ‑ ‑
GUMMOW J: Club cases are contract cases, in a sense, are they not, as Justice Aickin pointed out in some other case?
MR LLOYD: That is true, although I do not think Forbes necessarily – in Forbes they are saying ‑ ‑ ‑
GUMMOW J: So you have a common law contract.
MR LLOYD: ‑ ‑ ‑we do not want you to come onto the racecourse. I am not sure there is necessarily a contract there.
GUMMOW J: If you are a steward and there are rules, you have a right of access to the course and you are denied access to the course.
MR LLOYD: Yes, that is true, and I think in Forbes it was the self‑made rules which ‑ ‑ ‑
GUMMOW J: You are in Cowell v Rosehill territory which is a negative covenant in a contract.
MR LLOYD: What I am seeking to put, I think – I am hoping it is not that controversial proposition ‑ ‑ ‑
GUMMOW J: If we are going to get airborne, we have to know what is the length of the runway.
MR LLOYD: All I am wanting to put is that insofar as procedural fairness obligations arise, the interest under both statute and if it arises under the common law, must be the same, that there is not a different interest test for procedural fairness arising under ‑ ‑ ‑
GUMMOW J: I know, but you will not give contact to this term “the common law”.
MR LLOYD: By that, I mean ‑ ‑ ‑
GUMMOW J: There is common law contract, there is a common law tort, there is common law trust, on my understanding of it, and so on and so forth.
MR LLOYD: The common law pertaining to the regulation of executive power.
GUMMOW J: Then we are in the Constitution, are we not, because, unlike the English, we have to face up to that? Lord Diplock did not have to, we do.
MR LLOYD: I accept that as well, your Honour, but when we say – in the same way as when, under Chapter III, judicial power and the references to State Supreme Court, as we know from Kirk, carries along a lot of meaning. The reference to executive power in section 61 must do likewise and when the founding fathers conferred executive power on the Commonwealth, one would expect it was executive power of a kind they were familiar with, which was executive power being prerogative power which had by then for many centuries been ‑ ‑ ‑
GUMMOW J: I am not saying you are wrong. I am just inviting you to face up to it, that is all, which I think you are now doing.
MR LLOYD: I accept then it is the common law pertaining to the regulation of executive power or prerogative power which we say that – the reference to executive power in section 61 was not referring to some new species of power unknown to the founders, but was just in the nature of and regulated by and subject to the common law in the same way as prerogative power had previously been understood to be and therefore is in similar terms.
Now, that is all I wanted to say about general issues. I propose now to go to S10 and the S10 book, if I can find it. I propose, first of all, to take the Court to what we say are the salient aspects of the facts and spend 10 or 15 minutes doing that just so the Court has the relevant background. I can start on page 126 of the book, and the relevant bit here is at about point R on the page. There is a summary there of the claims that were made in the original protection visa application.
That protection visa application is elsewhere in the book, but I think this is a fair enough summary of the claims that were made which were of a relatively non‑specific nature but they are what they are. I do not want to take it further than that. This is – I should say this document we are looking at is the decision record of the delegate refusing the protection visa application. Going over to page 131 at letter F it said that:
there is no evidence before me to indicate that the applicant’s family have been threatened or that they have faced mistreatment from any group –
So that is how it was at that point in time. At about point S there is a reference – perhaps not critical to – in fact expecting him to adopt the norms of Islamic Fundamentalists in order to avoid harm. It might be questionable whether that is the right approach. On page 133 at letter Q, this delegate – not even the Tribunal - expressed concerns about - “humanitarian” concerns about this particular person. Nonetheless, it was rejected. A review application was made. Then if the Court goes to page 167 the Court will see the beginning of the RRT decision. Then over to 171 there is a heading about “The applicant’s evidence is summarized as follows”. The only bits I will draw the Court’s attention to are on 172 at about the letter M. It says that:
He has not been in contact with his family since he has been in Australia.
Then at about letter Q and following he identifies the group that had, he said, attacked him. It was rejected by the Tribunal but he said they had attacked him and the group was the TNSM. Shortly, over the page at 174, the Court will see at line T that the TNSM is that group, Tehreek Nafaz‑e‑Shariat Muhammadi. Then on page 175 at about letters L to N there is some discussion of that group and I just draw attention to it because it makes it clear that while they are obviously sort of friendly, the TNSM is a different group to the Taliban which has, we say, some relevance later. One then goes to page 182 – this in the reasons for refusing the review. At the top of the page it says:
The Tribunal has also considered whether, if it is incorrect in its findings, the applicant would be able to obtain effective State protection. The country information suggests that the police are generally ineffective against the TNSM in the Swat area. The Tribunal therefore cannot be satisfied that the applicant would be able to obtain effective State protection if he lives in the North West Frontier Province.
Then at letter N on the same page there is a statement:
When the Tribunal discussed with the applicant the possibility of relocation he did not raise any other grounds or problems, such as problems with his family moving or other difficulties, and only referred to the threat from TNSM.
So that was the only source at that point in time. One then goes to page 193 and this is a request by the Legal Aid Commission on his behalf jointly under section 417 and 48B as shown by the first two paragraphs. Over on to page 194, part of the material relied upon – I should say that this request is made more than a year after the Tribunal’s decision after judicial review processes had been undertaken unsuccessfully. Item 3 is a reference to a certificate by the Nazim Union Council and the date is fairly recent and certainly significantly after the Tribunal’s decision. There is also a reference to a doctor’s certificate about two of his daughters having been injured in fighting between the Taliban and the Pakistani Government. Over on to page 195 there is a heading “Exercise of the discretion and PAM3”. The first point to note is, as I indicated earlier, migration agents do, in fact, have and address these guidelines and policy provisions:
It is submitted that [Plaintiff S10]’s case falls within your guidelines for the exercise of your discretion because it involves “unique or exceptional circumstances” –
Then that is discussed somewhat, and again reference there to the Taliban at about point S, the resurgent Taliban presenting a risk to him. There is a heading b) on page 196 about “Changed circumstances in Pakistan”. In the middle of page 197 there is a reference to civilians being targeted by the Taliban at about letter K, and at letter N a sharp increase in attacks by the Taliban. Over then to page 200, this is now a statutory declaration by Plaintiff S10. In paragraph 24 he says that if he will be found by TNSM, he will be subjected to torture which, of course, could engage the Torture Convention which is outside the Refugees Convention, or at least is additional to, I should say. Then if I go to page 237, this is a copy of the certificate referred to by the Nazim Union Council. It refers to the plaintiff being from a modern type family and that the Taliban are against such persons. Then in the second paragraph it says:
During this period Talibans killed his three close relatives and still the Talibans are in search of [Plaintiff S10].
So this was repeating, in effect, the idea that there is a fundamentalist group searching for him. We say that that is not a claim that he had ever previously made that they were searching for him or that they had killed three close relatives. So that is the relevance of that. Going to page 311 – I should say everything from, whatever the previous page was, through to 310 is all part of the submission in support of the section 417 and 48B applications. What the letter at 311 is saying is, “We do not have an authority from you, the Legal Aid Commission, to make such a request” so they are not going to act upon it. But what is also interesting in that page 311 letter is that the guidelines at N:
The guidelines issued by the Minister to the Department, identifying the circumstances in which cases are to be referred to him for possible use of the intervention powers, generally permits either the person or their authorised representative to request Ministerial intervention.
So they are actively following the guidelines. Then the next paragraph:
Our records indicate that we do not have authorisation from [Plaintiff S10] allowing you to make a request . . . The information you provided, however, has been noted and will be taken into account –
That is, we say, by way of assurance –
in any future request –
Then an appointment of being an authorised migration agent is then made in the next few pages. I do not need to take the Court to it. That, as it were, ratifies the earlier request and it is then considered. Then going to page 331, it says here:
You have been granted a Bridging Visa E –
This document is not relevant to the natural justice point but is relevant to a question of his interest and also how the bridging visa provisions operate. It says:
pending a Ministerial outcome.
Your new Bridging visa E will remain valid until 18 June 2010.
So it is not pending in the sense that it lasts until the ministerial outcome. It lasts for a period and the basis for it is because there is a ministerial outcome pending. That is made, if anything, clearer by the discussion on page 334 in that second column:
Client. . . has ongoing request to the Minister to substitute a more favourable decision. Client is aware should the Minister decline to intervene will be required to A/a.
So he then gets that bridging visa. Then after that expires – or just before it expires, I think – a new application is made on page 341. The Court need not bother with the application. But then a new decision is made on page 348 in respect of the next bridging visa application. On page 349 at letter F:
Client is waiting on the outcome of their ministerial intervention and is aware of their obligation to depart if the minister decides not to intervene.
I will not take the Court to it, but in the agreed statement of facts there is a reference to another one or two bridging visas, all, we say, done on the same basis that while the Minister has not made a decision in relation to the initial requests, he is entitled to and in fact is granted bridging visas. We say that gives him an interest different to and additional to the other plaintiffs in this case. While we say they all meet the test, we say that this does require – if the Court is against us on our general point, this is an additional interest which would justify procedural fairness in his case because he has a greater interest because as a result of the purported making of the ministerial decision and the ministerial outcome on the 48B, he is no longer eligible for bridging visas which he, we say, would and should have been and that is an interest that should certainly be protected. Then if I go from there to page 364, this is now the decision record pertaining to the section 48B decision and there is a tick at about letter O that:
The purported further application/request is consider NOT to meet the guidelines.
Now, if one goes to page 365, there is various headings, but under the “RRT Findings” heading, the third dot point is:
The RRT was satisfied that [Plaintiff S10] would be able to obtain effective State protection, if he lives in the North West Frontier Province (NWFP) of Pakistan.
The Court will, of course, recall that I took the Court to making the exact opposite finding to that.
HEYDON J: Is a mistake of that character a breach of the rules of natural justice, procedural fairness?
MR LLOYD: Well, it can be. As I am about to show, the question of effective protection ‑ ‑ ‑
HEYDON J: It goes to the merits, does it not?
MR LLOYD: The way we put it, your Honour, is that there is at least some authority, although I accept not yet adopted by this Court, to the extent that the drawing of a conclusion not obviously open on the material requires the person to be given an opportunity to comment and we say that this was a conclusion not obviously open on the material and it relates to the question of effective protection which comes back in this decision, as I will show you, to have some significance to the overall – the alleged availability of effective protection is seen as somehow significant, not just here but later in the analysis and we say that an error – well, it is not simply because it is an error, but the drawing of a conclusion from material which is not obviously open can give rise to a denial of procedural fairness if the person is not given an opportunity to comment on it.
KIEFEL J: That suggests natural justice being used as a way of overcoming error.
MR LLOYD: I think it is implicit in that particular principle of natural justice that – not necessarily overcoming error but – in that case it would overcome error, but in all natural justice cases the idea is to give someone an opportunity to point out the error in what the person is otherwise going to proceed on and what we say is our client should have been given that opportunity. Now, it is true and what is perhaps stark is it is so easy to have answered this wrong conclusion, but we do not think that the fact that the conclusion is a more complex conclusion or more difficult to answer means that procedural fairness is owed only in relation to conclusions not obviously open that are complex and difficult to answer but if they are easy to answer, then it is just as much entitled to procedural fairness.
KIEFEL J: But that is a difficulty I have with some of the focus in these cases upon errors which were made or views which might have been altered. There would seem to be suggested a platform for natural justice on the basis that if it were afforded, these problems or these errors would not have been made. I just do not understand it to work in that way.
MR LLOYD: Maybe I am not understanding your Honour, but we say that the principle that you are given an opportunity to answer adverse material, putting it at its broadest, is one because you might have an answer to it, which if unanswered ‑ ‑ ‑
KIEFEL J: But that is not the reason procedural fairness is given. It is not to obviate the potential for error. It is to put forward your view in answer to the adverse material in a situation where there is called for a right to reply. We are talking about rights here, really, something in the nature of rights in relation to procedural fairness, not to make sure that the process is as close to perfect as possible.
MR LLOYD: Yes, I do not think I am in any event counselling some measure of perfection, but we do say that the notion at least behind that aspect of natural justice, if it be accepted as the right concept, that if a decision‑maker is inclined to draw a conclusion which is not obviously open on the material, that in substance means it is because – at least, it is fair to give the person an opportunity to know that whatever that thing is, is in issue, and that is because it is fair to give them a chance to answer that concern. It may well be that in many cases, although probably not this case, that answer might not be enough, so I agree to that extent it does not necessarily go to the merits, and it does go to procedure ‑ ‑ ‑
KIEFEL J: That puts into focus here, does it not, the feature of these cases which stands quite distinct from, say, M61, and that is that the parties here have arguably put their cases at a number of levels. This is not a new question. It may be that in the review of it, it is erroneously described, but this is not a new topic.
MR LLOYD: That is so, your Honour, but in M61, the analogy to M61 is with a decision of the independent review person so there had already been an earlier decision, and then that independent review person was reviewing that earlier decision in order to see if criteria were met and if, in the course of that, we would say, an independent review person drew a conclusion that was not obviously open on the material, in effect, that takes the person by surprise, that is unfair and we say it is not materially distinguishable from the idea that these people have had earlier processes. That is true, but even in the M61 situation, there had been at least one earlier process, and it is not a situation where there had been no claims whatsoever made. In M61, people had made claims both to the original decision‑maker and the review body ‑ ‑ ‑
HEYDON J: Does your submission entail the consequence that the, as it were, final draft of the document which the Minister sees should be shown to applicants so that they can correct any mistakes?
MR LLOYD: That would be one way, no doubt, of achieving that outcome. But I think in the decision that I rely upon for that expression – Alphaone - they say it relates to matters that are critical. It may well be in many instances it is not critical. We say here it is, because it is picked up ‑ ‑ ‑
HEYDON J: The problem is that the maker of this document - the eye of the writer simply skipped over the word “not” in the RRT decision. The maker of this document was not conscious of having engaged in a process of reasoning hostile to the interest of the applicant in relation to this dot point.
MR LLOYD: That may be so, but nonetheless if one turns over to page 368 the question of effective protection is then revisited, strangely under the heading “Long absence from Pakistan”, but anyway. At letter L, which is another one of our complaints, the US State Department Report is relied upon as indicating that it has:
a functioning police, security, and judicial establishments –
although that is not what the Tribunal had found and my client did not know that they were going to act upon that basis. Then at about letter O there is this notion that:
If [Plaintiff S10] returns to Pakistan and becomes a victim of any criminal behaviour, whether politically motivated or not, he has redress through the legal system –
So that, in substance, referring to the case at letter K is saying that he does have “effective protection”. So the position is one where he had been found by the Tribunal not to have effective protection, but to be able to relocate and now this body, this decision‑maker, in reliance of a conclusion premised upon what the Tribunal said, which was obviously wrong, and US State Department report information, which was not put to our client, draws an inference that effective protection is available and we say we should have had a chance to comment on that.
GUMMOW J: In response to Justice Heydon’s question do you – I suppose you are bound to accept, are you not, paragraph 29 of SZBEL 228 CLR 152 at 161?
FRENCH CJ: The quotation from Alphaone.
MR LLOYD: Yes, and the quotation in paragraph 29 from Alphaone is where we get that from, although I would accept that this Court in that case did not necessarily embrace the concept. It sort of held it in abeyance for another day because in paragraph 31 - I do not think it is a rejection of the concept, but there is a notion that the idea of creating a false dichotomy could be problematic. Well, we are not trying to create a false dichotomy between mental processes and the other matters. We are just saying that fairness requires you to have a chance to comment upon an adverse conclusion that was not obviously open.
Our position is that before the Tribunal it was accepted that there was an effective protection, at least in one province, and the Tribunal, on the basis of obviously a mistake as to what the Tribunal said, but a mistake that fed in perhaps to ‑ ‑ ‑
GUMMOW J: Paragraph 44.
FRENCH CJ: The focus in SZBEL was on issues, was it not, and that is reflected paragraph 32 where the joint judgment approved of a statement in Alphaone relating to being:
given the opportunity of ascertaining the relevant issues –
and then adverse material.
MR LLOYD: I think ultimately SZBEL turns upon the construction of section 425(1) and, in fact, in a sense – I know this because I was one of the transgressors – the parties were criticised for looking too much at common law natural justice and not at the terms of the Act. But, nonetheless, we say it is the law as stated by the Full Federal Court and has not been rejected by this Court and looking at that passage in 365 and the mistake, if putting it in that way, the conclusion not obviously open, in conjunction with the changing in position, the surprising, we would say, changing in position on 368, we would say that is one of the denials of procedural fairness. Can I also say in relation to 366 ‑ ‑ ‑
GUMMOW J: What is your point on 368?
MR LLOYD: The point on 368 is at point L where the US State Department report is relied upon in support of the conclusion at O to P that effective protection is available.
KIEFEL J: You say that is a new point that was never raised before?
MR LLOYD: The approach of the Tribunal had been, you cannot have protection in your province but you could just go somewhere else and they will not chase you and you will be fine somewhere else. So that is why we say it is new. Bearing in mind the issue, at least in part, is whether or not there was any new information as shown – perhaps if I go back to 366. There is the heading “Supporting documents” and there is a reference there in the second dot point at R to the letter from the Nazim Union Council which ‑ ‑ ‑
FRENCH CJ: You say that is incomplete, do you not. It is one of your complaints.
MR LLOYD: We do say that that is incomplete. Then there is a reference on page 367 to the idea that there is no new information or evidence before the Department to contradict the RRT’s findings. The way we put this second and separate point in relation to denial of procedural fairness is that this raises an instance of the kind addressed by this Court in Dranichnikov 77 ALJR 1088, but perhaps more succinctly by this Court in M61 at paragraph 90. If I can take the Court to that very short synopsis of the position which was failing to address one of the claimed bases for the plaintiff’s fear of persecution meant that the Minister was not informed about a matter that bore upon the question that the Minister had asked to be considered. That was a denial of procedural fairness.
What we say here is that when one has regard to the content of the letter and other claims which I already noted, we have a situation where before the officer who is making this decision not to refer it to the Minister you have a request where reliance has been placed on an additional and new threat, the Taliban, the resurgent Taliban, whereas before the Tribunal it was the TNSM, as well as a claim that he was now being actively sought, which was new, as well as the claim that three close relatives had been killed, as well as a claim that two of his daughters had been injured in fighting between the Taliban and the government, and then one juxtaposes those facts against the officer’s comment that:
There is no new information or evidence before the department to contradict the RRT’s findings –
well, entirely new claims had been made. Now, it might have been up to the officer to say, “I have looked at the claims and I think they are rubbish, there is nothing in them”, but he does not say that. He says there is no new information or evidence and we say that that shows that he has not embraced or understood the claims that have been made. There is a failure to understand and address a claim clearly articulated and it is an error of the same species as in M61 and Dranichnikov.
BELL J: That error led to the decision to proceed by way of schedule as distinct from putting up a submission ‑ ‑ ‑
MR LLOYD: No, your Honour. This is a 48B. That led to them doing nothing.
BELL J: I am sorry. I just wanted to take up with you – one sees at a point the schedule following the 417 request at 388 and 389 which does seem to summarise, at least in some respect, aspects of the matters that you identified in your claims, but that is a separate consideration.
MR LLOYD: I will come to that. That is sort of our next challenge decision.
BELL J: That is the 417. I am sorry.
MR LLOYD: That is the 417 decision. So that is why we say the 48B decision which was, in effect, do nothing with it - I note that the evidence at least does not reveal, and we say it was not the position that that decision was at that point in time communicated to my client. My client did not even know that a decision had been made under 48B until the letter at page 393 notifying of the decision is sent. That letter is quite a bit of time later, and after the 417 decision has been made.
So you have the situation where this adverse decision has been taken in relation to 48B, this characterisation that no new claims had been made, and that is made by one officer and then that process is fed into the 417 process as shown, going to page 387 – this is a note to the Minister with the schedule, and this is how a schedule looks. That is page one. The Court does not have any of the other pages other than on pages 388 and 389, 12 of 15 and 13 of 15, and also on page 390 there is a signature as well. So that is at least what an extract from a schedule looks like, and we will be seeing that at 387 at M, the Department is saying that it:
considers that intervention in these cases is not appropriate . . . these cases are neither unique or exceptional.
It has undertaken that review –
Under the guidelines, a first request for intervention –
This is at P –
is to be referred to you in a submission if it meets the guidelines –
This one does not, so it is in the schedule. We then go over the page to 388. This is the schedule aspect of it. At letter O there is a reference there to “s48b considered not to meet the guidelines”. So it is obvious that this officer had before him or her the analysis of the other officers.
BELL J: So that is Ms Fernandes’ assessment relating to the 48B application by implication was before the officer preparing the schedule?
MR LLOYD: Yes, and more than implication because on page 389 it says at J:
On 06/08/2010 the Department considered that he did not meet the guidelines under s48B as he provided no new evidence in his Ministerial intervention request that would enhance his chance of making a successful PV application.
There is also a reference earlier on that page at E to the same letter which, if anything, is even briefer than the other summary of it. We say the same problems with 48B in relation to this new “no new evidence” point applies here, but in addition there is an additional ground which is they took into account the adverse material being the adverse characterisation of it in the 48B decision, of which my client did not know about, to use it to assist in the decision‑making process, and if my client we say had had an opportunity to respond to that we could have and would have said things about whether or not there was new evidence as we say fairness would require. So those are the errors we rely upon in relation to the 417 assessment.
Then going to Plaintiff S10’s interests, in addition to the other ones I have already developed, I have said that he has an interest in relation to the bridging visa because he, I think, unlike any of the other three, has only made initial requests. If the purported decisions in relation to the initial requests are set aside, then he would both be eligible for the bridging visa and, one would presume, get the bridging visa because the practice of the Department is to give them pending an outcome of a ministerial decision. We say that that is an additional and stronger interest and we say that that is also an interest which perhaps justifies more strongly, although we say the other cases are strong enough to get certiorari, but this is a case where there is a pretty clear legal effect.
KIEFEL J: How was the interest in the bridging visa affected as distinct from being used as a ground for standing? How is it affected if the bridging visa remains in place until the ministerial decision? How is it affected by the assessments?
MR LLOYD: The bridging visas do not remain in place to the ministerial ‑ ‑ ‑
KIEFEL J: But they are renewed ‑ ‑ ‑
MR LLOYD: They are granted for terms.
KIEFEL J: ‑ ‑ ‑ under the general policy that they remain in place until the decision is forthcoming.
MR LLOYD: That is so. So we say that if those decisions are set aside, my client would then be entitled to get bridging visas again, but unless they are set aside, then one would apprehend that the Minister would say there has been ‑ ‑ ‑
KIEFEL J: Just so I can get this clearly, the interest depends upon the relief being granted?
MR LLOYD: The interest in the relief being granted is not being subject to detention. If he puts in another request, as he could do – he could put in another request and say, “Look, you have made this wrong. I made new claims. You did not even recognise the new claims. You should decide it again.” Now, he could do that but, if he did that under the bridging visa rules, having made another request, he is then for all time precluded from being eligible for bridging visas on that basis, because as soon as you make a second request, you are out. So we say that it is not so much in terms of interest here perhaps, but the justification for certiorari having a legal effect if ‑ ‑ ‑
KIEFEL J: It is a utility question.
MR LLOYD: It is a utility question but also a legal effect question because it is accepted that, as this Court said in Ainsworth, to quash something there has to be some effect that flows from it and we say that an effect would flow from it with relation to S10 of a different character than the effect that flows in the other cases.
FRENCH CJ: Mr Lloyd, that will be a convenient moment. We will adjourn until 2.15 pm.
AT 12.46 PM LUNCHEON ADJOURNMENT
UPON RESUMING AT 2.15 PM:
FRENCH CJ: Yes, Mr Lloyd.
MR LLOYD: Thank you, your Honour. I think before lunch I had just finished the S10 submissions. I should indicate that during the luncheon adjournment I have provided to the Court ‑ ‑ ‑
HAYNE J: Mr Lloyd, you are whispering again.
MR LLOYD: Sorry, your Honours. I should indicate that during the luncheon adjournment I have had provided to the Court copies of the decision in Attorney-General of Hong Kong v Ng. I accept that that, of course, is not a decision involving executive power under section 61 so can be distinguished on that basis, but, nonetheless, we say the executive power under section 61 is of the same nature, subject to procedural fairness in the same manner and so it has that relevance at least, and all that was really done to inspire or invoke or lead to procedural obligations was a statement made at the top of 635 and the last sentence in an interview with the Minister, “Each case will be treated on its merits”. That gave rise to expectations that were able to be protected in the Privy Council.
I have also provided to the Court an extract, because it is a long case and the point I want to take the Court to is a minor one, in Minister for Aboriginal Affairs v Peko‑Wallsend from this Court reported in 162 CLR 25. It is a case where, like this case, there was a power by the Minister to be exercised personally. In it Justice Brennan, on page 65, which is the second last page of the extract, discusses the nature of the functions of a government department. Departments, of course, are referred to in the Constitution, and we say that this discussion should be understood in that context. His Honour Justice Brennan says:
Part of a Department’s function is to undertake an analysis, evaluation and précis of material to which the Minister is bound to have regard or to which the Minister may wish to have regard in making decisions. The press of ministerial business necessitates efficient performance of that departmental function.
And it continues. This case, of course, was a case involving relevant and irrelevant consideration, so any failure to put forward relevant considerations would have impacts for the Minister’s decision. We would say that is not in any way inconsistent with the officers also being under obligations of procedural fairness themselves. On 66:
Reliance on the departmental appreciation is not tantamount to an impermissible delegation of ministerial function. A Minister may retain his power to make a decision while relying on his Department to draw his attention to the salient facts.
Now, in a sense that is what has been done here. We say that when the Minister is issuing directions to identify salient facts and departments are pursuing that, they are doing it pursuant, in a relevant sense, to the Act, enough to bring in natural justice, but, in any event, it is being done pursuant to executive power under section 61 within the sort of broader concepts of execution of the laws of the Commonwealth and it is part of what departments do, we say.
FRENCH CJ: A reference in the passage to which you referred from Justice Brennan is “the validity of the Minister’s decision”. You are going back a step earlier, are you not? You are going to the validity of, as it were, the determination of an officer under guidelines?
MR LLOYD: I accept that, your Honour, but, of course, in this case his Honour was saying that because it was a Minister’s decision that was being challenged. In the present case, I suppose in one sense, in S10 at least, the Minister’s decision as challenged is infected by the conduct of his staff in a materially identical way.
Insofar as there is a decision not to give something to the Minister at all, we say it would be curious if – if you do give it to the Minister, there is an obligation to accord procedural fairness, that somehow if part way through the process you decided it is not one you give to the Minister, then there is not procedural fairness obligations because you have reached a conclusion you are not going to give it to the Minister. So we say it is all of the same nature. It is all power, an exercise of some form of executive power, whether it be statutory or non‑statutory and absent words of plain intendment, procedural fairness is not excluded.
Now, if I turn to the Kaur book, which is S43, and I propose to start by dealing with the facts, as it were, and then making what we say is the key procedural fairness point. If I start on page 109, just because it is a convenient location of the facts, this is inside Justice Jacobson’s judgment, it may be seen at paragraph 23 that Ms Kaur arrived in Australia on 21 July 2005 under a visa granted to her on 5 July 2005. While that visa was in force she applied for another visa and that was granted. The visa that was granted can be seen on page 89 of the book. It cannot be seen very well, but – or some of it can be seen well. It can be seen that it says “Permitted to remain in Australia until 31Aug08” quite clearly. What cannot be seen in the other bits are that it was subject to conditions. One of those conditions precluded Ms Kaur from changing the course of study.
Then in April 2006 she applied for another student visa which was not subject to that condition. The Department sent her the letter, which is at page 1, which says:
Thank you for your application for a Student (Temporary) (Class TU) visa –
I should say, what she wanted – and I am not saying that the Department did the wrong thing in granting her a different kind of visa and we are not saying that the courts below are wrong in their construction of what was granted to her, but what she at least envisaged was that she would get a visa of the same term but without the condition that would preclude her from changing courses. Then she gets this letter which says “have been granted” and there are some bits in capitalisation, although they are quite hard to quite pass the letter and that is part of the problem, that the letter, we say and, for that matter, the Tribunal said and both judicial officers that looked at it said it was a confusing letter. If I can show you the nature of the confusion. At about point P it says:
If you lodged your application on the internet, you should e‑mail the Helpdesk . . . to advise of your new details. Otherwise, you should contact your nearest Immigration office –
Then there is visa information and it says:
Your visa is valid until 06 June 2008.
Then it says;
If you applied for your visa on a paper application form –
If I stop there and say Federal Magistrate Barnes in her decision – which is not in the book but I can give the Court a reference to it; it is [2010] FMCA 634 at paragraph 8 – found that that is what Ms Kaur had done. It says:
If you applied for your visa on a paper application form, you may already have a visa label in your passport.
Well, she did –
Please examine your visa label closely and note carefully the expiry date of your visa.
Which then begs the question of, are they saying if you have got one, it is the one which is already on your label or if you have got one, note that it is different to that one and so there was ambiguity as to what was being said there. Ms Kaur, well, as I said, she looked at the labelled 89 which referred to the 31 August 2008 date and then in April 2008 she sought advice – so this is before her visa expires – from a migration agent to say what does this mean? Does it mean it is 31 August 2008 or does it mean 6 June 2008? This is apparent on page 41 of the book in paragraph 16. She was advised by a migration agent that it was the label that governed the position, not the letter which, as it turns out, was wrong, but that is what she was told. She then applied for another visa on 1 September 2008.
If the Court goes to pages 108 to 109 back in Justice Jacobson’s decision, there is a setting out of 572.211(3)(b)(i) and (c)(i). There is a word “and” missing between the (b) and the (c) but the gist of the point is that there is a requirement that you apply for your next student visa within 28 days of the expiry of the last one. On the basis that she thought her last one expired on 31 August she applied well within time, but because her visa had in fact expired on 16 June she had applied outside of that time. The Minister’s delegate refused that application for that reason which can be seen on page 29 of the book at letters P to R. Ms Kaur then sought review of the delegate’s decision in the Tribunal. That can be seen at page – it starts at page 38 of the book. If I go to page 42 of the book at about the letter J, the Tribunal says it is:
prepared to accept that there may have been some degree of confusion over her visa status and the date on which her visa was to cease, and that the advice she received may have reflected this confusion. However, the Tribunal has no discretion –
so it affirms the decision as can be seen at the bottom of page 42. Then on 16 October 2009 Ms Kaur sought assistance under section 351 which can be seen on page 47 of the book. Reliance is placed upon the MRT’s sympathy for her predicament, at about letter S, and her disappointment. Then going to pages 96 to 97 is the departmental schedule that went to the Minister. At the bottom of page 96, it says:
A submission provided to the Migration Review Tribunal from Miss Kaur states that –
·without her knowledge the Department issued her with a new Higher Education Sector visa valid until only 6 June –
which is certainly what she had said. Then there is a bit in brackets. The bit in brackets is not what she submitted, but is the officer’s view, which was that Ms Kaur had applied for a new visa:
The visa was granted on 28 June, and the visa grant letter was sent to her nominated home address. This letter clearly stated the new expiry date for her new visa, and stated –
et cetera. Then the notion that it was clear is again restated at page 97, letter L:
Departmental systems do show that the visa in question may not have been evidenced on her passport, however her visa grant letter did clearly indicate the new visa expiry date.
Now, this idea of it all being very clear is, we say, contrary to the view of the Review Tribunal which one might thought have been somewhat authoritative on the point. Also, this schedule, although the result of it is given to Miss Kaur, she does not know, until these proceedings commenced, that this was the view taken by the officer that the letter was clear.
Now, after that, she then seeks judicial review of the decision. I should say in that context the effect of the Minister’s decision is, unless there is something new he does not want to look at it again. Then there was judicial review in the Federal Magistrates Court, which is not in the book, but Justice Jacobson’s decision is, which commences on page 106. There is a reference there to Federal Magistrate Barnes’ decision in paragraph 1. Then if one cuts to paragraphs 62 to 65 on page 113, his Honour there says in 62:
It follows that the appeal must fail. However, in my view the second delegate’s letter of 28 June 2006 is one which is to say the least confusing. That was demonstrated in argument before me this morning and the learned Federal Magistrate at [7] of her reasons described the second paragraph of the relevant passage of the letter as “somewhat confusing”.
63.Moreover, her Honour accepted at [46] and [47] that the appellant had sought and relied on the advice of her migration agent as to the expiry date of her visa, and that she had followed the migration agent’s advice which had resulted in the lodgement of her visa application out of time.
64.It seems to me that the advice which was given and acted upon by the appellant, although for the reasons set out above not correct, was not unreasonable in light of the confusing terms of the letter –
Again, confusing –
65.In those circumstances –
being at least the last three paragraphs –
it may be a matter in which the Minister would be prepared to revisit the question of whether to substitute a more favourable decision -
Now, following on from that comment is a letter to the Minister on page 115 where Ms Kaur, at about line Q, sort of adopts the circumstances referred to by Justice Jacobson as justifying the revisiting of that issue. Then on 6 January 2011, which is at page 131, an officer of the Department who is in the compliance section who is wanting to remove Ms Kaur because she only has a second request, she does not have a bridging visa, he is trying to – sorry, she does not have a bridging visa based upon any pending matters. He is trying to arrange for her to be removed. David Bitel, who is her agent, is said, being very vocal in his objections pending, given that Justice Jacobson has said it should go to the Minister. It is then said:
The new request is based almost primarily on a comment the Federal Court made in its judgement, suggesting it might be a case the Minister would consider looking at a second time. Apart from that there appears to be no new information.
So that does not pick up on the notion of the letter being unclear:
It would be greatly appreciated if you could look at having this request finalised as soon as practical, as it will give us further weight in enforcing departure.
Assuming that this officer expected a particular result on the finalisation.
Then on 10 January, at page 141, there is a – I should say, that last letter, that last note that I just took the Court to is one we are relying on as being adverse to my client. Then there was this note and I note at line J there is a reference there to:
A copy of the relevant schedule extract is at Attachment A.
So although it is not repeated in this volume, it is apparent that they had regard to the earlier section 351 schedule. Then at letter N it says:
The only new information in regard to this request is that the Federal Court stated in its judgment that “it may –
underlined –
be a matter in which the Minister would be prepared to revisit the question of whether to substitute a more favourable decision pursuant to s351 of the Act”. However, no other compelling information that has not previously been considered has been provided that would bring her case within the Minister’s guidelines for repeat referral to him.
Now, we say that this is another instance of a matter falling into a Dranichnikov‑type situation. The letter said we are relying upon the circumstances relied upon by Justice Jacobson and those circumstances were that Justice Jacobson and Federal Magistrate Barnes had found that the letter was confusing. Now, that is unambiguously new compared to the previous assessment which said that it was clear, so there is, we say, a failure to address the most central point in the case and simply just say the only new thing, as Justice Jacobson said, they should look at it again as if there was nothing new. If they had have looked at it, they presumably would have said ‑ because I did have attachment A there ‑ they would have said, well, it is new that judicial officers who have looked at it carefully have found that letter to be confusing, whereas our previous assessment was based upon it being clear.
Now, my client did not know, of course, any of this, did not know how it was previously characterised. I think something is made in the Minister’s submissions of the fact that we did not point out that there – we did not characterise the judge’s characterisation of the letter as confusing as a change in circumstance. Well, of course, my client, knowing that the Tribunal described it as confusing, did not think it was a change of circumstance, but it, in fact, was a change in circumstance because the officers had treated it as clear. Given that that is the central point of the whole issue, which is she had at all times acted bona fide in accordance with migration advice and at least part of the problem was a confusing letter by an officer of the Minister, that, we say, constitutes a denial of procedural fairness.
In terms of relief, we certainly seek the same declaratory – and relief in terms of a declaration of denial of procedural fairness, an injunction to require the Secretary to have the matter looked at again in accordance with
procedural fairness. In relation to certiorari, we accept that Ms Kaur, being on a repeat request, does not have the same issue in relation to bridging visas as Plaintiff S10 does. However, the position is that under the guidelines what the officers are directed to do is only look at change of circumstances since the last request and we say it is sufficient of an interest and effect if these decisions were set aside, to go back and – so that that will mean that when the matter is reconsidered, it will be reconsidered to an earlier date in time, that that is a sufficient legal effect if the Court is otherwise accepting that there is a denial of procedural fairness to justify certiorari as well as the other forms of relief that I have indicated. That is all I seek to say in relation to the Kaur matter. I now ask Mr Prince to address the Court on the other two cases.
FRENCH CJ: Yes, Mr Prince.
MR PRINCE: May it please your Honours. I propose to deal first with S49 of 2011. The reason for that is that S51 raises some other issues and it might be best to continue the flow in terms of the section 417, 48B types of cases. Plaintiff S49 is a repeat request under section 417 and section 48B. There is a very complex immigration history and although the statement of facts is agreed, I might need to supplement some of it to your Honours so that your Honours have a better understanding of the context. This goes to the point that was raised by our learned friends in their submissions in reply focusing on the issue of the Indian travel document. I propose to focus on that issue, that is, whether or not there was denial of procedural fairness to the plaintiff to not be put on notice of the issue or information that a travel document could be obtained from the Indian Government within one to two weeks with or without his consent and in a relatively straightforward fashion.
The first and second defendants’ submissions at paragraph 85 indicate that that was not a central issue in the dealing with the 417 request. It is dealt with in terms of an ancillary part of the report by the departmental officer concerning arrangements for removal. I will endeavour to show to your Honours that, in fact, it was central because the essence of the plaintiff’s case for relief or assistance under section 417 was that if he was not assisted under that provision, he would be unable to be removed to India practically and he would be left in a state of limbo and liable to indefinite detention in Australia because he also would be unable to obtain a Bangladeshi travel document.
There is no doubt that the plaintiff is himself the author in large part of the complexity of the immigration history because when he originally arrived in 1998 – and could I ask your Honours to open the book to page 329. There is quite a useful summary of the immigration history which was appended to the minute that was sent to the Minister and subject to the additions that I propose to take your Honours to, it is largely accurate. Sorry, it is accurate, subject to the additions that I will take your Honours to. When the plaintiff arrived in Australia, he arrived on a passport which was an Indian passport. There is no issue and never has been an issue that is a genuine document in the sense that it is a passport which has been issued by the Indian Government. Rather, the question has become, whether it was a genuinely obtained travel document in light of some other identification documents which were subsequently found to have been not genuine by the Department.
But stepping back to page 330, your Honours will see that in June 2003, this is at point F, the plaintiff was detained at the Villawood Immigration Detention Centre. Ultimately, he was in detention for almost two years. I will come to that in due course. There is evidence that his case of prolonged detention was viewed as a particularly important and iconic case of long‑term immigration detention.
He maintained his claims to being Indian right until 11 September 2003. So from 1998 to September 2003 he maintained his claims to be Indian. Then following an interview at the Indian Consulate with a view to getting a travel document to be removed to India and leave detention, the Indian Consulate advised that the plaintiff might, in fact, be Bangladeshi and not Indian. Then a few days after that he came clean and told the Department that he was in fact Bangladeshi and that the Indian passport had been fraudulently obtained.
That then set a train of events in course where it became obvious, and your Honours will see this from the entries for 19 December 2003, that it was unlikely that he would be able to obtain a Bangladeshi travel document, given the paucity of documentation he had, to be able to sustain or to establish Bangladeshi nationality. What your Honours will see on page 330 at about point S is an entry for 4 February 2005, where an Indian travel document application was completed by the plaintiff.
Now, the context of how that travel document application was completed is important to have regard to and I have had made available, and I hope your Honours have, a copy of a decision in the Full Court of the Federal Court. Given we have adopted pseudonyms in this case, I will not read the name of the decision but your Honours have it and it is referred to in the statement of agreed facts as having been related to this particular plaintiff.
In that decision – I do not know how I am going to confirm that your Honours have it without mentioning the name of the case. Can I ask your Honours to turn to paragraph 26 of that decision at page 406? That was obviously - given the circumstances [the plaintiff’s] evidence was not relied on wherever it was inconsistent with the Department’s evidence.
The Department’s evidence indicated what your Honours will see at paragraph 26 and, in particular, the line starting, the plaintiff “stated that he did not want to be transferred to Baxter”, which is another detention centre. This is the incident in which he completes a second Indian travel document application after he had claimed that he was in fact Bangladeshi. In the decision the court seemed to not cavil with the proposition that is at paragraph 94 on page 421 of the report:
that he only signed the application for a travel document because he did not want to be transferred to the Baxter Detention Centre and because he was depressed while being held in detention. Certainly, it seems that, in November 2004, the appellant said that he did not want to be transferred to the Baxter Detention Centre, and the records of the Department indicate that he was placed under suicide and self‑harm watch from 16 February 2005 to 19 February 2005.
So there is some criticism for the change in story, or the reversion to Indian nationality, but the plaintiff was essentially in the position where he had been in detention for an extremely long time. The only option he was really presented with which could solve that problem would be for him to obtain an Indian travel document. He assisted in that process and then an Indian travel document was issued. Your Honours will see that at page 331 in respect of March 2006.
The Indian travel document had been issued in 2006 by the Indian Consulate, together with the application that was provided by the Department to the Indian Consulate, the original Indian passport which he had said by this stage had been non‑genuine and further documents, including copies of birth certificates. Your Honours will see that from the entry at page 330 at items S to T. The birth certificate was obviously a critical document because if he was saying that his Indian passport was fraudulently obtained, obviously the birth certificate would be critical to fraudulently obtaining a passport in the name on the birth certificate.
So the Department had real concerns about the information which was before the Indian Government. There had been, prior to the submission of these documents to the Indian Government, a reference by the Department to its document examination unit seeking verification of the veracity of the documents which were provided. Ultimately it was found – and your Honours will see this on page 331 at lines D to H – that the birth certificate and several of the employer references were not genuine. That information came a week after the Indian travel document had been issued, although it came obviously before any removal.
The Full Court found that the Australian Government had not – certainly by the time of that decision and there is no evidence now that the position has changed – that the Australian authorities did not advise the Indian authorities of their conclusion about the genuineness of the birth certificate. The Full Court there said that that was far from decisive of the question in that case although, in my submission, it is of critical importance in the present case. So it certainly makes the question ‑ ‑ ‑
GUMMOW J: Do we know what your client would have said? He is a person of, on this material, limited veracity. What would he have said?
MR PRINCE: Well, the information that he would be responding to was that the travel document could ‑ ‑ ‑
GUMMOW J: I know, but how would he have responded?
MR PRINCE: He would say that there should be contact made with the Indian Consulate directly to ask whether, in fact, in his complex case, that it would be so easy to issue the Indian travel document. So it does not depend on his veracity at all. But, to make that good, can I take your Honour to where the Department was discussing and the information the Department is relying on to establish or to conclude that it would be easy to obtain an Indian travel document for the plaintiff.
There is email correspondence within the Department concerning how long it would take to obtain a travel document. If your Honours go to pages 291 to 292 of the book – these obviously go in reverse. Ms Tyson is the case officer from the Ministerial Intervention Unit who was dealing with the plaintiff’s request. What you will see in the email of 2 February 2010 – and I would ask you to note that date – it is significant for a reason I will come to in a moment – but if your Honours note that there is a question being asked about whether or not, on page 292:
what would be the expected timeframe for a new travel document to be issued by the Indian authorities –
with or without co‑operation. Then the more hypothetical question of whether or not:
By providing an Indian travel document –
presumably in the future, the Indian authorities would be recognising him as an Indian citizen. The response is at page 291 on 8 February 2010 – the email starts on 290 and runs over to 291 – there is an email, including to Ms Tyson, which indicated a request to advance the request from Ms Tyson. There is a note there that it might be worthwhile talking further to the plaintiff about the situation. That was never done. It would have been relatively straightforward to do.
When we come to the ultimate response to the question, which is at page 290 of the book, your Honours will see – this is coming from the Compliance Status Resolution Program Support Section which seems to have been the internal section with some expertise in this area – and Mr Hooper notes:
Providing you with a timeframe for issuing a travel document is difficult to determine as I would normally provide details and copies of ID docs to the Indian HC who would then assess the case prior to providing an estimated timeframe. They could also insist that the request go to their Sydney Consulate who issued the original travel doc.
There is nothing to indicate that Mr Hooper knew that the previous travel document that had been issued in 2006 by the Indian High Commission had been done without knowing that the Department had suspicions or concerns about the documents it advanced to secure the travel document or that it subsequently was not told about the confirmation of those concerns in relation to the birth certificate. So that Mr Hooper is giving advice in the abstract talking about a best case scenario and in the absence of making any direct inquiries with the Indian High Commission. Mr Hooper notes, at J on page 290, that the New South Wales office were asked by some acronym, presumably referring to a unit within the Department:
to raise the issue of a replacement travel doc with the Indian CG in Sydney who issued the original travel doc in 2006. Legal advice at that time was not to pursue a travel doc.
So it appears clear that there has not been any real approach or discussion with the Indian authorities about the propensity to issue a travel document and particularly not in circumstances where the true state of the genuineness of the documents has been revealed. Indeed, it is worth noting that in the earlier stages back before the original Indian travel document was issued back in 2005, there were internal concerns about how the Indian Government would verify or issue a travel document and one of the officers indicated that it might be worthwhile asking the Indian Government how they ascertained the plaintiff’s identity, but that suggestion was not pursued.
Your Honours will see that recorded in the decision of the Full Court of the Federal Court at pages 408 to 409 from paragraphs 44 to 47. Mr Scott asks the question whether we should seek further clarification from the Indian consul “regarding the steps taken to establish the client’s identity” and the other officer responded and advised that:
because of the sensitivity of the case and the relationship with the Indian Consulate, it had been decided not to approach the Consulate with “this delicate question”.
Plainly, the position of the plaintiff was not in the ordinary position of somebody who might be expected to obtain an Indian travel document. Had the plaintiff known, as one of the officers suggested he might, what was going on in the background within the Department in terms of ascertaining whether he could be removed, he could have pointed out and had taken into consideration the fact that these events had occurred and been recorded by the Full Court of the Federal Court in previous proceedings.
As it stands, the report to the Minister, which your Honours will see starting at page 321 of the book, does not ultimately put the Minister on notice about the potential difficulties and, indeed, the issue that was raised by the plaintiff, and your Honours will see it best expressed by Amnesty International report on behalf of the plaintiff which is reproduced in extract at page 324 of the book at point S to V:
Amnesty International is concerned that the RPBV’s –
return pending bridging visas, which was the subject of the Full Court Federal Court decision –
are leaving individuals in a permanent state of limbo, if all reasonable efforts have been exhausted and it is clear that the person cannot be removed from Australia, a durable solution must be found. As such [it is recommended] that you take measures to resolve the visa status of [the plaintiff].
Then if your Honours go over to page 325, that is a direct consequence to the Department’s recommendation of (b) to (c):
The Department contends that [the plaintiff] has not been left on a RPBV indefinitely and that he can be removed from Australia. Indeed, his departure was organised in 2006.
No reference to any of the difficulties or problems associated with the obtaining of that travel document. Again, reference is made to that under the heading “Removal/Departure arrangements” at page 326 at point H to J. There was some request for further information which was provided to the plaintiff during the process of consideration of his repeat 417 request. That was done on 2 February, I think, by letter. At pages 277 to 279 of the book ‑ ‑ ‑
FRENCH CJ: Mr Prince, I wonder if you could just clarify for me - at page 80 of the Full Court book, we have the particulars of the grounds of want of procedural fairness in the further amended application for Plaintiff S49.
MR PRINCE: Page 80, did your Honour say?
FRENCH CJ: Yes.
MR PRINCE: Yes, your Honour.
FRENCH CJ: So this is all converging upon these three paragraphs, or b and c seem to have been drawn through for some reason, but the Indian identity had been found to be false. He produced a number of documents to support the claim that he – I am sorry, the Bangladeshi identity had been found to be false. That he had:
produced a number of documents to [support] the claim that he is an Indian national by the name of –
et cetera, and that:
The Indian authorities have previously issued [him] a travel document –
Now, these are the matters upon which was said he was not given an opportunity to comment.
MR PRINCE: Yes.
FRENCH CJ: That is the scope of it, is it not?
MR PRINCE: Yes, I think there is an agreed fact that he was not given an opportunity to comment.
FRENCH CJ: This is the want of procedural fairness?
MR PRINCE: Yes.
FRENCH CJ: We seem to be getting there in a rather roundabout way. We have your outline.
MR PRINCE: Your Honour, the critical one that I have been addressing is at page 81:
the Department is confident that they would do so again, if required. The likely time frame for the issue of a new travel document is one to two weeks.
That really is the most important denial of procedural fairness. The other matters are dealt with in the written submissions and I do not think amplification will assist your Honours, but your Honours did need, in my submission, to have some background and understanding, given that the submission is made by the defendants that the question of travel arrangements for his departure were not central. That would probably normally be so, I do not know, but certainly in this case, given the complex history, they assumed ‑ ‑ ‑
FRENCH CJ: It is a tangled web, as you accept, I think.
MR PRINCE: Yes, quite, but he is where he is and Amnesty make the point. As reprehensible as he may have been, he should not be left in limbo if the reality is that properly informed the Indian Government would not issue a travel document, and one would have thought that giving the full picture and information to the Indian Consulate would probably raise further questions and might make the Department’s confidence in the time frame a little hard to justify. It is not as if the Department’s confidence in the time frame is based on information attained from the Indian High Commission having made full disclosure and dealt with the issues that have arisen in relation to the original issue of the 2006 travel document. So otherwise in relation to the denial of procedural fairness, I would just rely on the submissions and the written outline of submissions.
Can I deal now with Plaintiff S51. This is also a complex case because it involves both the 417, 48B points together with or overlaid by the operation of section 195A of the Act and a process that was undertaken which is quite different, it must be said, from the process that is engaged in under 417, 48B. First of all, the 195A process, one would have thought, by definition only applies to those who are in detention, so that the similarities and parallels with Plaintiff M61 are obviously enhanced by that, and any argument that there is no interest is really put to one side because plainly there is an interest in a person having their liberty and the only way that they can have their liberty when they are in immigration detention is either to get a substantive visa or to be granted a visa under section 195A.
There is no limitation on the type of visa that can be granted under section 195A and the guidelines which deal with the ability or the power to exercise or to deal with or to administer the power under 195A are different, obviously and they start at page 746, which is in volume 2 ‑ ‑ ‑
FRENCH CJ: Now, just so we know where we are going, again looking at the application, in relation to 417 and/or 48B processes you are complaining about want of opportunity to comment on certain adverse matters, which are listed a to f, I think? Then in relation to 195A it seems to be a more broad brush approach that he did not have an opportunity to be heard in relation to whether his case fell within the ambit of the guidelines and other matters.
MR PRINCE: Yes. He was not even aware that the process was underway.
FRENCH CJ: What you are directing your remarks to at the moment is paragraph 9 of the ‑ ‑ ‑
MR PRINCE: Second further amended application.
FRENCH CJ: Yes.
MR PRINCE: Yes, precisely, your Honour, and, in particular 9b and 9c. Can I deal first with 195A because the first decision or assessment was undertaken under that section, but also so too was my last assessment of the plaintiff’s case undertaken under ‑ ‑ ‑
FRENCH CJ: The first limb – 7 - falls into the same general category as the other plaintiffs.
MR PRINCE: Precisely. They are interconnected though, which I will come to in due course. But I should take your Honours through the 195A process before I do that. If your Honours go to pages 218 and 219 of the book this really is the starting point. It is a report or an assessment undertaken by an officer under the section 195A guidelines.
Unlike any of the other assessments in this case there is a conclusion to refer the matter to the Minister for the exercise of his power or consideration of the exercise of his power, the language that they use. What is important is there is a finding at item L on page 218 that there are unique and exceptional circumstances and, at that stage, no other intervention power was available. This was before the Tribunal decision had occurred.
There is a reference here importantly to an assessment in 20 September 2009 implicitly that there were symptoms of post‑traumatic stress disorder. That then led to a report dated 20 November 2009. Now, your Honours will see it referred to as a STARTTS report. STARTTS is a service for the treatment and rehabilitation of torture and trauma survivors. The report that is referred to there is to be found at page 201 in volume 1 of the book. But, before I take your Honours to that, can I just continue with page 218, point P:
A STARTTS report dated 23 November 2009 has confirmed a diagnosis of Post Traumatic Stress Disorder (PTSD) with depressive features consistent with trauma experienced in his home country, Nigeria.
Just before I get to the report, there is another document which is worth reference. This is a senior officer review cleared on 1 December 2009. Your Honours will see that on page 215 at point R. On page 214 of the book at point U to V, I would ask your Honours to note the reference by the officer there to the plaintiff having:
disclosed a history of Torture and Trauma, but to date has not received any treatment from a mental health team. [The plaintiff] is on the waiting list to participate in the NSW Service for the Treatment and Rehabilitation of Torture and Trauma Survivors (STARTTS) program.
Then if your Honours go to the STARTTS report, if I can be drawn into the world of acronyms, starting at page 201 of the book, your Honours will see on page 203 that the report is based on an interview between the plaintiff and the clinical psychologist who works for the trauma service on 11 November 2009 and there is quite an extensive recitation of the matters which were discussed during that session, but at pages 210 to page 211 your Honours will see a summary of mental state. Your Honours will see – and I will take your Honours to the Tribunal report a little later – but the history that he relates of having to leave his home and family in fear of death at a very young age and to have been a victim of religious conflict that involved a city in which he had lived since he was 12 and his witnessing of people being killed and so forth, was all part of the matters which were discussed with a psychologist.
For example, on page 211 at item S to U, there is an assessment of the plaintiff’s loss of appetite, for example. So what the psychologist is doing is comparing the history that has been relayed by the plaintiff to the type of symptoms that one would or would not normally expect to see in survivors of trauma and those who suffer from post traumatic stress order. The conclusion is at page 212, starting at G:
To summarise, [the plaintiff’s] initial clinical diagnostic impression is that of Post Traumatic Stress (PTSD) disorder with Depressive features consistent with the series of trauma he has experienced in his home country, disappointment at being detained in a detention centre and uncertainty about his future. He is fearful of being returned to his country of origin as he believes his life would be in danger if he were to return.
The assessment by the psychologist has confirmed that the symptoms that he is displaying are consistent with the type of trauma he claimed. It is really a form of independent corroboration of his story of what had happened to him in Nigeria based on assessments of observable symptoms as against known symptomology. That report is not seen by the plaintiff until these proceedings commenced. It was referred to in the 195A initial report in December 2009 but, of course, because he did not know about the existence of that process and much less had been provided with a copy of the report which referred to the report, he did not know that this report existed, much less what it said.
That report existed before the Tribunal decision in February 2010, which your Honours will see in page 236 onwards. It obviously would have been of some assistance to him, given that at page 258 the Tribunal member concludes at points B to C:
Moreover, having regard to the extent to which the applicant’s evidence is at variance with the independent evidence available to me I do not regard him as a witness of truth.
The assessment by the independent psychologist obviously would have been relevant to that, but there is not much that can be done about that now but pursuing the line of the section 195A process and skipping over the 417, 48B process for the moment. The second section 195A report is quite recent. It was undertaken in August 2011 after commencement of these proceedings, and your Honours will find it at pages 591 to 595. Notwithstanding that these proceedings were on foot and that the plaintiff now had access to the STARTTS report and that he was represented, the plaintiff did not know that this assessment under section 195A was in prospect really until it was delivered. There was no process of consultation with the plaintiff concerning the assessment under section 195A, let alone the nature or content of the material that was to go to the Minister.
True it is that the plaintiff had put forward submissions in this Court, but they were not submissions or any process of consultation concerning what was likely to be put up to the Minister, or what should have been put up to the Minister.
KIEFEL J: The material is not adverse, though, so what is he going to say?
MR PRINCE: The material is not adverse, that is true, but perhaps I can take your Honour, to answer that, to the terms of the recommendations. For example, if your Honours go to page 592 at – my document does not have lines on it, your Honours – at lines N to P, there is reference there to his request under 417 and 48B as having not been meeting the guidelines. In respect of the 48B guidelines, it is important to recall that 48B guidelines deal with any new information that was not available to the Tribunal that might enhance protection claims, but of course it is strictly speaking true that he had not advanced any such information under the section 48B process, but there is no indication in this report that he was unable to do so because he did not have access to or even knowledge of the STARTTS report.
The STARTTS report is dealt with at page 593 at points I to N, in dealing with the health circumstances, but the dots are not joined between that report having exhibited or disclosed a history of torture and trauma to the Department, and the absence or the failure of any of the processes up until now to have taken that into account in dealing with, for example, the section 417 and 48B requests.
So really, the adverse material which is contained, to endeavour to answer to your Honour’s question, in that report is really the omission of the fact that the STARTTS report has never been considered in a context where it might provide some corroboration to a person who is found to not be a truthful witness in relation to claims based on his circumstances occurring in Nigeria.
HEYDON J: How can it be corroboration? What the psychologist says rests on the history given by the plaintiff. That is not independent of the plaintiff.
MR PRINCE: No.
HEYDON J: The cause of the plaintiff’s illnesses could be various.
MR PRINCE: That is entirely true, your Honour, and it is possible that the plaintiff did not present an accurate history and the like, but it does not provide corroboration in the trial sense, but what it does is it certainly provides an independent basis of support for this reason. An independent person has assessed observable symptomology and indeed a history that is presented within the framework of a known illness and has concluded that that history, as presented, matches that illness.
Now that, in my submission, would be a fairly persuasive factor to assist him in establishing the credibility of his history because if the history had been incorrectly delivered or he had left something out which could have been independent it is – sorry, I will withdraw that. He could have said that the psychologist has assessed him against known criteria which are scientifically developed, or at least purportedly scientifically developed, and established and accepted within the community, and so there has been a testing of the veracity of his claims against a standard.
Had the claims missed out, for example, a particular feature that would be mostly known to people with PTSD, the psychologist could readily have said, well, one would have expected that if he in fact went through some of the events he is claiming he would have mentioned X, Y and Z and he has not mentioned X, Y and Z. He has mentioned A, B and C and that is not consistent with somebody who has suffered that sort of trauma.
In circumstances where the Tribunal was at pains to say that there was no sort of independent support for his claims and really it was just his word it does, in my submission, assume some significance and it simply has never been considered. This brings me to ‑ ‑ ‑
CRENNAN J: I may be making a mistake here, but was it not the case that after the second section 195A consideration that particular plaintiff was granted a bridging visa and released into community detention?
MR PRINCE: He was placed into community detention, your Honour, under section 197AB, and that only allows for community detention, which is really ‑ a person is still restricted in their liberty within community detention; it is just another form of detention. The Minister was presented with a choice between exercising a power under section 195A where he could have remedied all of these problems by granting an unconditional humanitarian visa, for example – there is no limitation on the type of visas he could issue ‑ but rather because he is presented – or at least it is possible that the skewing or the presentation of the case by the departmental officials without any consultation with my client has put before the Minister a certain view of the information which is not really, in my submission, complete. It is not unlikely – or I should say, it is not fanciful to say that that may not have had an impact on the choice made by the Minister whether to grant a 195A visa or a 197AB, we simply do not know.
KIEFEL J: Well, you are saying that he ought to have been given the opportunity to address the failures of the officers to identify the relevance and the weight to be given to documents?
MR PRINCE: Yes, and particularly in the circumstances of this ‑ ‑ ‑
KIEFEL J: Or I should say the accounts and documents.
MR PRINCE: Yes, particularly in the circumstances of this case. I am not at all suggesting that any rule would come out of this, but here a particular picture is being presented to the Minister without any consultation which omits reference to some very important matters which, had we known they had been omitted from the material that was going to the Minister, we could have dealt with and we did not because we did not know.
KIEFEL J: You have used the word “consultation” a few times. Is there any authority that describes the requirement to consult in a process such as this?
MR PRINCE: “Consult” is possibly too modern a word. It would really be an administrative form of hearing in the sense that at least we would be put on notice that this approach is going to be made to the Minister, this process is undergoing and you can make some submissions if you like.
FRENCH CJ: Is your argument accurately encapsulated in paragraphs 45 to 48 of the submissions?
MR PRINCE: Yes, your Honour, it is. I may not have been able to put it as succinctly as it is in writing, but these matters explain why those propositions are good. So that my client has lost the opportunity really to have any involvement or provide any assistance to the Minister in a process which is of obvious importance to him and has not been able to put any material on the scales to be weighed by the Minister in assessing this situation. Obviously he has lost that chance. Of course, it is possible that such a chance could come around again, but one does not know in the absence of any revealed problem with the last time. It is always much harder second or third time around in this case to persuade and, really, he has lost the opportunity to persuade the Minister that a visa should be granted under section 195A.
Now, can I just quickly turn to sections 417, 48B. I said that they were interrelated and I have briefly touched on that. Obviously he did not know about the STARTTS report when the section 417, 48B reports were dealt with. Can I just give your Honours some references to those reports. Interestingly in this case, in respect of the first request, the Department initially put the matter up to the Minister on a schedule, which means we found he does not meet the requirements and he is in that category of people. That is at 479, the first document in volume 2 of the book. The view of the Department relevantly is expressed at item L to N that:
the circumstances of this case are neither unique nor exceptional. No issues have been identified –
Presumably, that means by the plaintiff, but it does not say it:
which engage Australia’s obligations under the Convention against Torture or the International Covenant on Civil and Political Rights.
Your Honours will see at page 480 this case is a little bit unique in the sense that – and your Honours will see on page 480 there is a list of the attachments. It does not include the 195A report of December 2009 or the STARTTS report and only one of the letters of support that had been put forward. Then there is a response by the Minister in the box at points Q to T – “Enough evidence to warrant further consideration”.
So the Minister then gives a direction to the Department to provide a report or an assessment. The Department then sends, at 485, a request to the plaintiff asking for a range of documents – none of which really touch on his post‑traumatic stress disorder. There is a response to that but, ultimately, there is a second report and your Honours will see at page – and I should also say that in that document, that letter to the plaintiff, there is no reference to the Department’s concerns expressed in the first report that no issues had been identified which engage Australia’s obligations under the Convention against Torture or the International Covenant on Civil and Political Rights.
Then there is a second report which starts at page 514, and, importantly, your Honours will see at points A to B on page 515 that included in the report to the Minister was a note that:
The Tribunal determined that [the plaintiff] was not a witness of truth because his evidence was at variance with the available independent evidence –
again, bringing into play, in the 417 process, the plaintiff’s credibility and the veracity of the story that he advanced at the Tribunal, including many of the factors which were dealt with in the assessment by STARTTS. Then, at page 517 at lines J to K, your Honours will see that the assessment under section 48B is attached to the section 417 request. The Department had assessed the plaintiff’s claims:
and found that he did not meet the guidelines for referral and that he had provided no new information that he was at risk of being targeted that would contradict the Tribunal’s finding.
Then at R to S, there is a reference to there being:
no credible information that would enhance his chances of making a successful PV application.
That is not put in terms of information provided by him. It is just a bold statement.
Now, I do not say that the person who prepared that report necessarily looked at or had regard to the STARTTS report, but it was clearly within the Department’s position, and there is in the guidelines under 195A, could I ask your Honours to turn back to Act, starting at page 746, and in particular page 751 and paragraph 6.5.3 starting at lines U to X:
The officer preparing a submission under s 195A must check whether there is any parallel preparation of a submission in progress using my other intervention powers. In such instances consideration should be given to a joint submission.
So there is a prospect under the guidelines that matters which are relevant to section 195A might be relevant to matters in section 417, as you would expect, and a requirement that there be some diligence within the Department in terms of ensuring that there is some co‑ordination between the two arms of the Department in terms of the provision of information to the Minister. Again, all of this comes back to the necessity, clearly implicit in the statute, that when the Minister does consider the exercise of his public interest powers or they are engaged in some way, that the material that is going to assist the Minister in discharging that statutory power is going to be provided to him and not stultified by a failure to provide it to him by those people who are effectively the gatekeepers to the access to the Minister, in this case, the Department.
My learned friend made reference to a decision of this Court in Peko‑Wallsend. Those observations and the overall nature of the functions that are occurring in these situations are of importance in considering the nature of the content of a duty to accord procedural fairness because ultimately the aim is to ensure good administrative decision‑making and that the Minister is given a proper opportunity to consider whether the public interest of Australia is engaged by particular circumstances and should result in a particular individual right being conferred on a particular individual person. For the reasons I have identified, that has not happened here.
FRENCH CJ: The particular matters that you rely upon as matters of information which he should have had an opportunity to comment are those set out at 7a. to f., are they, in the second further amended application?
MR PRINCE: They are, your Honour; f. is underlined in the second further amended application, but I have not addressed on that because it is dealt with in the written submissions and I do not expect it needs amplification to your Honours. The matters I have addressed, your Honours, really fall into item 9 in the further amended ‑ ‑ ‑
FRENCH CJ: 195A.
MR PRINCE: I am sorry, your Honour, 7c., for example. Unless there is something further that I can assist your Honours ‑ ‑ ‑
GUMMOW J: Wait a minute. Do not go away. What do you say about paragraph 11 of the Solicitor‑General’s submissions?
MR PRINCE: If your Honours just give me a moment to turn that up?
GUMMOW J: Namely:
With the exception of s 195A, the non‑compellable powers at issue here arise for possible exercise only after a non‑citizen has had the opportunity to seek merits review ‑ ‑ ‑
MR PRINCE: Well, temporally it is correct, but ‑ ‑ ‑
GUMMOW J: No, in terms of structure of the Act and interpretation.
MR PRINCE: That is true, but it does not advance the matter, in my submission, for this reason. Section 48B by definition is really concerned with matters which were not agitated before the Tribunal. Section 417 deals with a wide range of matters which cannot be dealt with by the Tribunal, although with the passage of the Complementary Protection Act some of those matters now can be dealt with through that process. Section 351 possibly could deal with matters that have previously been dealt with, but I do not think that affects the case presented by my learned leader in this case.
The idea that because there has been a lot of processes before one gets to this process does not mean that this process is any less important or conditioned by a requirement to provide procedural fairness because a particular task that has never been undertaken before is being undertaken. Even in repeat requests the task is different each time because one is looking for new information which had not previously been considered in earlier requests. So that may be administratively inconvenient, but it is really a product of the structure that the Minister has elected to establish himself.
No doubt it has the beneficial effect of ensuring that, to the best extent possible, Australia meets its international protection obligations under the Convention Against Torture, the International Covenant on Civil and Political Rights, the obligations under the Convention on the Rights of the Child and the like and these are all important matters and they are not matters which are considered by the Refugee Tribunal. They are certainly not matters which could have been considered in any judicial review application for many Refugee Review Tribunals. So, in my submission, it does not take the content or existence of duty any further.
GUMMOW J: What do you say about paragraphs 10 and 12, in particular the first sentence of paragraph 12 as a point of distinction from M61.
MR PRINCE: In my submission, it is not a substantive point of distinction because, as my learned leader has said, these guidelines are publicly available, they are well known. They represent to anybody who reads them that any application will be dealt with in accordance with them. People are invited expressly to address the criteria contained in the information.
There is an indication in the documentation that every application will be dealt with in accordance with those matters, so that just because it has not been published in a press release or in a media outlet does not take the matter any further. They are not secret documents and it is not a secret process that people are not advised about, or could ever respond to. They are invited to respond to the process, and there is an expectation that if they do, they will be dealt with in accordance with the process.
HAYNE J: But do you go so far as to say that the publication of the documents constitutes the Minister deciding to consider whether to exercise the relevant power, be it 48B or 417, et cetera.
MR PRINCE: I say that the creation of the documents is the Minister embarking on that process, because the Minister has turned to the content of what is involved in him assessing or determining the public interest. He sets out in some detail what will or will not be matters that he will look at within the scope of the public interest. Obviously, the concept of public interest is an extremely broad one.
The provision of definition to it by the Minister, as he has done in the guidelines, involves him turning his mind to what is or what is not or what is likely to be or is not likely to be in the public interest when it comes to the exercise of these particular powers. He does so quite deliberately in respect of each different statutory power, and comes up with different guidelines tailored to the purposes of each of those particular statutory powers.
FRENCH CJ: What is he doing when he says, “If X, do not refer it to me”.
MR PRINCE: He is saying this is not in the public interest, and cannot be in the public interest, so I do not want to see it.
GUMMOW J: So what is the juridical route of the guidelines?
MR PRINCE: My primary submission is that the guidelines are really issued incidental to the power that the Minister has – bearing in mind the Minister issues the guidelines – they are an incidental power conferred on him by 417 because it is, as this Court observed in Peko-Wallsend, simply unworkable to expect that a personal power given to the Minister could never be exercised in conjunction with the assistance of his officers, particularly in light of section 64 of the Constitution, the Minister and the Department really are as one when it comes to the exercise of his functions under statutory powers, and they are assisting him in that process, although of course, they are not delegates, cannot be delegates.
FRENCH CJ: They are not delegates. Is the Minister, by issuing the guidelines, giving directions to officers in their capacity as agents of the Minister in the Carltona sense?
MR PRINCE: Subject to the limitation on him not to – to exercise the powers personally. He is certainly giving them directions to make the assessments in accordance with the guidelines. That is something he could do personally if he wished to but it is a necessary, in my submission, incident of his power, conferred in the way it is, personally, that it would be envisaged that he could engage or create a process such as the one he has.
I recall something in the second reading speech, although I do not know if it is before your Honours – this issue about who was going to be the gatekeeper when this discretion came up was a matter of some comment at the end of the second reading speech. There was some resistance to keeping the residue of this discretionary power in the Minister in the scheme of creating very detailed and prescriptive visa classes and a yes or no answer to visa applications.
GUMMOW J: Now, I think that this Court has not favoured doctrines of estoppel, vis‑à‑vis third parties as raised by such documents. Is it implicit in what you are putting to us that there is some substantive doctrine of legitimate expectation, not legitimate expectation as to the affording of procedural fairness but legitimate expectation of embarkation upon the process?
MR PRINCE: I do not think it needs to be created in such a way. If there is no necessity to create a new doctrine, in my submission, one should not be created. The ultimate question is interest, and interest is a broad question. It can be dealt with – it is obvious in the case of a legal interest or a legal right that is being directly affected – or sorry, I should not use that word “directly” – but being affected, where there is an interest being affected, as in my submission it is here, then that is a sufficient interest.
Ultimately, in my submission – and legitimate expectation simply falls into the question of where the interest lies and whether in granting or expecting procedural fairness to be accorded to an individual they have a sufficient nexus or connection with the exercise of the power to be conferred with that right, so that ‑ ‑ ‑
FRENCH CJ: Consistently with the notion of legitimate expectation the Minister would be able to depart from his own guidelines provided he – assuming this doctrine applies, of course – provided he gave prior notice to a person to be affected by that departure an opportunity to comment. Is that right?
MR PRINCE: Yes. For example, the submission might be made, “Well, it is not in the public interest for you to depart from the guidelines. You have said these things are in the public interest, there is no reason why they are no longer in the public interest and I would like you to take them into account”.
GUMMOW J: I am trying to get you to explain how this case is on the same footing as M61, not about what the characteristics might be of the process once initiated, namely, whether there was a legitimate expectation of procedural fairness, but whether it is relevantly started in the same way as it had in M61.
MR PRINCE: Well, leave aside 195A for a moment which is a little bit different because it can only be initiated by the Department, anybody who writes into the Minister seeking his intervention or assistance on the current state of the guidelines commences the process, and the guidelines say that that commences the process. So that that is no different to a global statement being made to the world at large that this process will be commenced in relation to you because in fact in this case it has been engaged by the actions of the person making the request.
HAYNE J: Can the guidelines be understood as a ministerial statement – I attempt to use the word “statement” as a term of complete neutrality – of what circumstances are not and what circumstances may be cases in the public interest?
MR PRINCE: Yes.
HAYNE J: Do you not have to take a further step beyond that characterisation of the guidelines to reach the conclusion that you assert, namely, that the process has started, that the Minister has embarked upon the exercise of the power, or is it enough that you make the characterisation we have just agreed on?
MR PRINCE: A lot of this is coming from a false dichotomy which is created about whether consideration has begun or not because a remedy compelling consideration is not available, but that does create complexities which are not really necessary because factually in each of these cases clearly a process of consideration has begun in relation to the individuals who are involved. It is being carried out in the initial stages by an assessment conducted by an officer under directions by the Minister. The directions have come from the Minister.
Academically maybe one could say by issuing the guidelines he has embarked on an exercise of the power, but it does not lead anywhere because that by itself does not lead to the prospect that any denial of procedural fairness may occur because it may be that nobody ever makes a request or so on, but in reality he has commenced a process rolling and these people are caught up in it and it does not stop and start at an election. The reality is it is a total process which the Minister has put in place and it should be allowed to continue and it is a process that necessarily carries with it, in my submission, given the nature of the statutory power that is being exercised, the duty to accord procedural fairness in the administration of that process that has been put in place under the section.
FRENCH CJ: I suppose, if one goes back for a moment to subsection (7), all that that tells you is that there is no duty. Is it right to say what is left is a discretion to consider and that the guidelines, when they say if X I do not want it referred to me, is a statement of how that discretion is to be exercised in category X?
MR PRINCE: Precisely. It is a power.
FRENCH CJ: It is a discretion whether or not to consider.
MR PRINCE: It is a power to consider and grant a visa.
FRENCH CJ: Well, he can choose not to consider.
MR PRINCE: You could choose not to consider.
FRENCH CJ: So it is a statutory choice; you consider or you do not consider.
MR PRINCE: Yes.
FRENCH CJ: And he says in these circumstances I will not consider.
MR PRINCE: He says I will not consider if X, Y and Z are present.
FRENCH CJ: Yes.
MR PRINCE: So the question is, how do you determine whether X, Y and Z are present?
FRENCH CJ: The question is what does that tell you about the character of the guidelines in relation to the Minister’s statutory function?
MR PRINCE: Yes.
CRENNAN J: I thought it was part of your argument that, in the context of which the Chief Justice is speaking, your contention is that the guidelines are an embarkation because they are a recognition on the process because they are a recognition by the Minister that the discretionary power can only be exercised by obtaining or after obtaining information from the persons who may benefit from the exercise of the discretionary power.
MR PRINCE: Yes.
CRENNAN J: That is why I thought you were concentrating, or your leader, when looking at the guidelines on the recurrent references to considering an application on the merits.
MR PRINCE: Yes. I am sorry if anything I said shrinks from that. It does involve an embarkation in the process but relevantly in these cases it cannot be viewed only in isolation because other things are happening and the scope of the duty is obviously important and the content of what is in the guidelines is, obviously, important. But the dichotomy between consideration and exercise, although it is useful and has to be dealt with, can end up leading into some areas of inquiry which might be not really helpful in dealing with the reality of a situation because here there is just no issue that in each of these cases and where the guidelines have been sought to be activated, there is a complete process going on of individual assessment of individuals against criteria and that is contemplated and, in fact, required by the guidelines that have been issued and it is all within the rubric of the statutory function of power conferred on the Minister by the
Parliament. I think my learned leader wants to say something. My apprehension is not at an end. Thank you.
MR LLOYD: I will not be long. I just wanted to draw your Honour the Chief Justice’s attention to our submissions on Carltona at 74 through to 89 and also in relation to a question your Honour Justice Gummow asked about the nature of the direction, or whatever one calls it, the guidelines by the Minister. Certainly I accept and adopt what Mr Prince has said, but, in the alternative, if the Court does not accept that it is done by implication under the Act and therefore, we say, embracing procedural fairness absent words of necessary intendment to exclude procedural fairness, then we would say the only other place that the Minister could ever have a power to do that is section 61 of the Constitution.
We would say that executive power under section 61 of the Constitution, absent parliamentary approval to exclude procedural fairness, be subject to it, although, of course, there will be many instances where the subject matter will not make it appropriate or there will not be interest, but we have already said what we have said about interest in this case, but we would say, for example, that the Minister could have issued directions that said, I want you to do this but I want you not to record procedural fairness. You are, in undertaking these guidelines, not to give anyone an opportunity to comment on adverse material. We would say that they would still be bound to do it because the executive power would not extend to giving someone a direction to do something contrary to procedural fairness in that sense. May it please the Court.
FRENCH CJ: Just back on the Carltona point, the power to be exercised personally is the power referred to in subsection (1), that is, to substitute, et cetera.
MR LLOYD: Just so.
FRENCH CJ: The discretion to consider or not to consider does not fall within that requirement, does it?
MR LLOYD: There is a question of statutory construction. I do not know that the Court has an unambiguously adopted one view or the other in M61. When it talks about the power under (1), there is a question whether that is, as it were, simply after the jurisdictional fact is established, the power is the power, and then that raises the question whether under 7, when it says You have no duty to consider whether to exercise power, is that saying you have no duty to consider whether, once you have reached a state of satisfaction, whether you consider it, or you have no duty to consider whether you even have to address the question of the state of satisfaction.
FRENCH CJ: I am just looking at the question of whether a departmental officer complying with a ministerial guideline which says in circumstance X do not refer, is effectively acting as the Minister’s agent in the exercise of the Minister’s discretion not to consider.
MR LLOYD: Yes, your Honour. He is using his gatekeepers, as it were, to protect himself from presumably making the same decision.
FRENCH CJ: That is a statutory function. If he does not have to carry it out personally, it is being exercised in a sort of agency way through the interaction of his guideline and the officer’s determination.
MR LLOYD: Indeed. May it please the Court.
FRENCH CJ: Yes, Mr Solicitor.
MR GAGELER: Your Honours, there are two critical questions that play out in different ways in what we identify as two classes of decision that are raised by the facts of these four cases. One of those critical questions, in our submission, is entirely a question of law, and the other of those critical questions, in our submission, is entirely a question of fact. Could I introduce them by reminding your Honours of three or four critical sentences in the reasoning in M61 243 CLR 319 beginning with the first sentence of paragraph 70. It is there said:
Exercise of the powers given by ss 46A and 195A is constituted by two distinct steps: first, the decision to consider exercising the power to lift the bar or grant a visa and secondly, the decision whether to lift the bar or grant a visa . . . But here, the effect of the Minister’s announcement was that . . . consideration would be given to exercising the powers given by ss 46A and 195A –
leading to the penultimate sentence in paragraph 71 that this involved:
the taking of the first step towards the exercise of those statutory powers: the decision to consider their exercise.
One then goes to the first sentence of paragraph 76 where it is said that:
the Minister’s decision to consider whether power should be exercised under either s 46A or s 195A directly affected the rights and interests of those who were the subject of assessment or review.
Then the final sentence that I wanted to highlight, over the page, page 354, within paragraph 78, the second full sentence on that page:
There being no exclusion by plain words of necessary intendment, the statutory conferral of the powers given by ss 46A and 195A, including the power to decide to consider the exercise of power, is to be understood as “conditioned on the observance of the principles of natural justice”.
Your Honours, what we see as the first critical question in these cases, a question that, in our submission, is from beginning to end a question of law, a question of statutory construction, is whether section 417, section 351, section 48B and section 195A in its application to a person detained under section 189(1), that is, not an offshore entry person, are like section 46A and like section 195A in its application to an offshore entry person detained under section 189(3) on their proper construction constrained by a requirement to afford procedural fairness. That is the first question, and one could break it up into two subparts, whether that constraint applies at the first statutory step of the Minister deciding whether or not to consider the exercise of a power and/or at the second statutory step of the Minister having considered the exercise of the power, then deciding whether or not actually to exercise it; entirely a question of law.
The second critical question, in our submission, is essentially the question of fact and that is whether the mere issuing or adoption of the relevant guidelines by the Minister is properly characterised in the same way as the ministerial announcement in M61 as the Minister taking the first statutory step of deciding to consider the exercise of power or not to consider the exercise of power.
It almost came out in answer to some of your Honours’ questions this afternoon that the best way in which the plaintiff’s case can be put is to characterise the issuing or adoption of the guidelines as the Minister in fact making a conditional decision, the Minister saying, “If a case is assessed to meet the guidelines I wish to consider exercising my power. If a case is assessed not to meet the guidelines I do not wish to consider exercising my power”.
Now, those two questions play out in different ways in relation to the different decisions that are challenged before your Honours. The second of those questions, that is the status of the guidelines, the question of fact, in our submission, really does not enter into one of the classes of case because the first class of case or the first class of decision disclosed by the four cases before your Honours is where the Minister personally in an individual case has received a briefing document from the Department and has personally turned his mind to the individual case and has, in fact, decided not to consider the exercise of power or, in fact, considered the exercise of power and decided not to exercise the power.
Now, the cases where the Minister personally has received a briefing from the Department and decided not to consider exercising the power are in Plaintiff S10, the decision recorded at page 391 in relation to section 417. In Plaintiff S43, the decision recorded at page 101 in relation to section 351, the cases where the Minister, in fact, considered the exercise of power and decided not to exercise the power are in Plaintiff S49 in the decision recorded at page 253, a decision under section 417 and in Plaintiff S51, in the decision recorded at page 520, again a decision under section ‑ ‑ ‑
GUMMOW J: What was the second of those references, Mr Solicitor?
MR GAGELER: Page 520, that is volume 2 of S51, a section 417 decision.
GUMMOW J: That is the last one. You gave us four references.
MR GAGELER: I am sorry. There should be an S10 page 391, S43 page 101, S49 page 253, S51 page 520. In our submission, there is no doubt that each of those decisions made by the Minister personally was a decision or a purported decision under section 417 or section 351, as the case may be, and there is simply no dispute that if section 417 and section 351 are on their proper construction conditioned by a requirement that the Minister afford procedural fairness and the Minister did not, in fact, afford procedural fairness because of the action or inaction of the Department, then the purported decision of the Minister is a decision that is outside the authority granted to the Minister by section 417.
It is simply irrelevant in relation to that class of decision whether the action or inaction of the Department is itself somehow characterised as an exercise of the statutory power under section 417 or 351, on the one hand, or is properly seen as the Department doing what departments do under section 64 of the Constitution and that is assisting their Ministers in a non‑statutory sense.
FRENCH CJ: It might be a convenient moment, Mr Solicitor. The Court will adjourn until 9.45 tomorrow morning for pronouncement of orders and 10 o’clock for the resumption of this matter.
AT 4.15 PM THE MATTER WAS ADJOURNED
- AGLC
- Plaintiff S10/2011; Kaur; Plaintiff S49/2011and Plaintiff S51/2011 v Minister for Immigration and Citizenship and Anor [2012] HCATrans 17
- Case
- [2012] HCATrans 17
- Decision Date
CaseChat Overview and Summary
The central legal issue before the High Court was whether the Minister's delegate had properly considered and applied the relevant provisions of the *Migration Act 1958* (Cth) and the *Migration Regulations 1994* (Cth) when assessing the plaintiffs' claims for protection. Specifically, the court was required to determine if the delegate had made an error of law in their assessment of the plaintiffs' claims for protection, particularly in relation to the assessment of their claims for asylum and the application of the non-refoulement obligations under international law. The plaintiffs argued that the delegate's decision-making process was flawed and did not accord with the statutory requirements.
The High Court's reasoning focused on the interpretation of the statutory framework governing protection visa applications and the principles of administrative law. The court examined the delegate's assessment of the evidence presented by the plaintiffs and the delegate's application of the criteria for granting a protection visa. The judges considered the extent to which the delegate was required to engage with the specific claims made by each applicant and whether the delegate's findings were supported by the evidence and the law. The court affirmed that administrative decision-makers must act within the scope of their statutory authority and that their decisions must be logically sound and based on a proper understanding of the law.
The High Court found that in each of the three cases, the delegate had made an error of law in their assessment of the protection claims. Consequently, the court ordered that the decisions of the Minister's delegate be quashed. The matters were remitted to the Minister for Immigration and Citizenship to be dealt with according to law.
Orders
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Background
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Evidence
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Ratio Decidendi
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