Plaintiff S111/2017 v Minister for Immigration and Border Protection

[2017] HCATrans 97

[2017] HCATrans 097

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S111 of 2017

B e t w e e n -

PLAINTIFF S111/2017

Plaintiff

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Defendant

EDELMAN J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO SYDNEY

ON MONDAY, 8 MAY 2017, AT 2.14 PM

Copyright in the High Court of Australia

MR V.A. KLINE:   I appear for the plaintiff, if it please, your Honour.  (instructed by Victor Kline, Barrister)

MR C.L. LENEHAN:   May it please the Court, I appear for the defendant.  (instructed by Australian Government Solicitor)

HIS HONOUR:   Yes, Mr Kline.

MR KLINE:   Your Honour has before you – I probably should – they asked me to check – is that loud enough?

HIS HONOUR:   Yes, I can hear you very clearly, thank you.

MR KLINE:   Thank you.  Your Honour has before you two interlocutory applications.  One is an application for an interlocutory injunction to restrain the defendant from exercising his discretion under section 501(1) of the Migration Act to refuse the plaintiff his protection visa even though he has been assessed to be a refugee.  The second is an application seeking an interlocutory order in the nature of habeas corpus or pursuant to rule 25.13 of the Federal Court Rules – seeking an order from your Honour that the plaintiff be released pending the hearing of the final matter.

Your Honour, the defendant has been kind enough to concede that if your Honour finds that there is a serious issue or are serious issues to be tried in this matter then the balance of convenience would favour the plaintiff.  So, unless your Honour wants me to, I do not propose to go through any of the matters relating to balance of convenience but simply refer your Honour ‑ ‑ ‑

HIS HONOUR:   There is a substantial issue which one might express as being concerned with the balance of convenience or one could express it as being a preliminary issue and that is whether or not the application – at least for the interlocutory injunction - is premature.  I ask that in circumstances in which it does not appear that there is any immediate threat to refoule the plaintiff.  Such a threat, as I understand it, would only arise if and once the Minister had exercised discretion under section 501.  Is that right?

MR KLINE:   The problem is, your Honour, that if the plaintiff were to hang about to see what happened it is theoretically possible - for example, the Minister has indicated that he would consider the exercise of his discretion and that would be on or after the 16th of this month.  Now, it is theoretically possible and in fact quite realistic that he could exercise his discretion to refuse the protection visa, at which point all the relevant sections of the Act – 197C, 198(6) – kick in and a moment later could remove the plaintiff from the country.

HIS HONOUR:   That is even though section 501 is itself subject to review by section 500 by the Administrative Appeals Tribunal?  So you are saying there is a possibility that a decision would be made under section 501 and before the exercise of any statutory power of review – or applying for review the Minister would defeat that statutory power by refouling the plaintiff?

MR KLINE:   Absolutely, and would be entitled to under the provisions – if I could take your Honour to – so let us assume for the moment that the defendant has exercised the discretion and said I am refusing you this visa on the character grounds, under 501(1).  Section 198(6) says that:

An officer must remove as soon as reasonably practicable an unlawful non‑citizen if –

relevantly:

(a)      the non‑citizen is a detainee –

which the plaintiff is; and:

(b)      the non‑citizen made a valid application for a –

visa – which he has; (c) the visa has been refused and there is no other visa that he has applied for.  All that would apply.  Then 197C – sorry, am I getting ahead of your Honour?

HIS HONOUR:   I am just pulling up the legislation.  Thank you, Mr Kline.

MR KLINE:   Sorry, I will wait.

HIS HONOUR:   Assuming all that to be the case, though, would that not still mean that at the very least the terms of your interlocutory injunction are too broadly framed?  As I understand your concern is a concern to prevent – or the applicant’s concern is - a concern to prevent him being refouled.  Surely, the appropriate tailoring of an interlocutory injunction would be either to restrain the Minister or for the Minister to give an undertaking that the applicant would not be refouled within, say, 21 days of – or 14 days of having made any decision.  That may, in any event, be necessary to preserve any rights that the applicant might have under section 500.

MR KLINE:   Yes, I understand what your Honour is saying, but if I can just take you to 197C.

HIS HONOUR:   Yes.

MR KLINE:   That is the kicker – 197C(1) says:

For the purposes of section 198, it is irrelevant whether Australia has non‑refoulement obligations in respect of an unlawful non‑citizen.

So that the officer who is about to remove the person does not have to worry about the fact that the plaintiff has been decided to be – has been held to be a refugee.

HIS HONOUR:   Yes.

MR KLINE:   In fact – I probably do not need to talk about – it seems to me, your Honour, that ‑ ‑ ‑

HIS HONOUR:   The existence of non‑refoulement obligations is one thing in the statute, but the existence of an express statutory power for an application for review is another.  That is even putting to one side the possibility of consideration of any of the arguments of estoppel and the constitutional considerations that you have raised.

MR KLINE:   Yes.  I suppose it is a bit like – you got word that your building is going to be knocked down.  You want an interlocutory injunction to stop that.

HIS HONOUR:   Except the difference is that if either of your arguments upon which you rely today is correct, if there is an estoppel argument to public law that could be made out, or if the section is contrary to Chapter III, then the effect of any exercise of discretion by the Minister would be that that exercise was a nullity, would it not?

MR KLINE:   Yes, well, I guess that is what I am saying, your Honour.

HIS HONOUR:   It is not like a building being knocked down and having to be rebuilt.

MR KLINE:   No.

HIS HONOUR:   The building would never be knocked down in the first place.

MR KLINE:   Yes, well, it is probably the worst analogy for me to pick. I guess what I am saying, your Honour, is that if your Honour finds that the estoppel argument or the constitutional argument is valid, then the defendant has no discretion to exercise. We want to make sure – so we are putting it to this Court at this time to say he is estopped, he is breaching Chapter III of the Constitution, he does not have a discretion, do not let him exercise it. So it is an injunction to stop him exercising his discretion. If we let him exercise discretion and get an undertaking so that we can review it in the normal course of things then we have lost the whole argument of what we are trying to say - that he does not have a discretion at all on those arguments.

HIS HONOUR:   What is the practical impact of that on your client?  In other words, what is the practical impact upon the applicant of a determination now that you have a serious case to be tried and that an interlocutory injunction should issue to restrain the Minister from exercising a discretion as opposed to exactly the same type of consideration to be given to the matter once the discretion, if it has been exercised, is exercised, but with the benefit of having all of the facts and all of the circumstances upon which the discretion has been exercised before the court?

MR KLINE:   I might be misunderstanding your Honour, but if your Honour is saying why would we seek to prevent the discretion using these arguments now, the simple – and I do not mean to be flippant – the simple answer is because we say that they are good arguments and if we let it go and the Minister exercised his discretion and then we had to go to the normal course of judicial review, it would be a lot harder for the plaintiff to get his visa, if you like.  We have good arguments.  We say that the Minister has no discretion, no residual discretion.  We want to argue that now.  It seems to me that is a reasonable proposition.

HIS HONOUR:   In relation to the constitutional arguments, what do you say about the proposition from cases like Castlemaine Tooheys that the Court will only attempt at an interlocutory stage to adjudicate upon the validity of legislation where there are compelling grounds that are found for the grant of an interlocutory injunction?

MR KLINE:   Well, the first thing I would say, your Honour, is ‑ ‑ ‑

HIS HONOUR:   That is 161 CLR at 275. The statement by the Chief Justice is that the general principle is that:

In the absence of compelling grounds, it is the duty of the court to respect, indeed, to defer to, the enactment of the legislature until that enactment is adjudged ultra vires.

That was said in the context of interlocutory proceedings.

MR KLINE:   Yes.  Well, the first thing I would say is we are not suggesting that the legislature has in any way infringed Chapter III.  We are saying that the Executive has infringed Chapter III.  So we accept that the legislature has the power to enact the relevant sections that it has enacted – the sections that are relevant to this case.  But we say that it is the Executive’s interpretation of and implementation of those sections that gives rise to an infringement of Chapter III.

So it is a different matter, I would submit, and if we need compelling circumstances, even for that - if the distinction I am making is a distinction of no substance in other words, if we need compelling circumstances, I would argue that we have compelling circumstances and I am looking forward to, hopefully, convincing your Honour of that in a moment.

HIS HONOUR:   Yes, all right.

MR KLINE:   So, as I was going to say, your Honour, at the beginning, balance of convenience is conceded but because the question of whether there is a serious issue to be tried has been put in issue, I think I have to go in some detail into the plaintiff’s substantive case to convince your Honour that there is a serious question to be tried.

HIS HONOUR:   Yes.

MR KLINE:   I cannot really skip about this giving point form.  Unfortunately that is going to take a little while, but I will try and be as concise as I can.  First of all, the relevant facts on which this is all based – the plaintiff is a citizen of Bangladesh, came to Australia at a very early age under his father’s diplomatic visa, spent most of his life here, speaks English with an Australian accent, does not speak Bengali.

In his late teens and early 20s – up to about 21 – got into a lot of trouble because he was a drug addict and, as the Supreme Court of the ACT said in sentencing him in a matter, it is archetypal, pathetic drug addict behaviour.  Most of what he did was petty, and irrelevant to this case.  There were two serious matters, however – robberies – when I say “serious”, all robberies are serious.  These were in the nature of him in a drug‑induced state wandering into the servo – or, I think on one occasion it was a servo, and one occasion it was a convenience store – brandishing a knife, you know, your Honour, and escaping with the princely sum of $75, that sort of thing.

But the relevant thing is that in both cases, one offence which was committed in 2006 and one offence which was committed in 2008 – although for some reason which I do not know he was not sentenced for the 2008 till 2012.  He got more than 12 months imprisonment so he cannot ‑ ‑ ‑

HIS HONOUR:   The short point is that the offences bring him within the terms of section 501(6).

MR KLINE:   Exactly, yes.  So he has been reformed since then.  He is now about 31.  He is not a drug addict.  He did not commit any further offences.  He married his long‑time girlfriend in 2012.  She is an Australian citizen of Italian extraction.  They have one child, who is also an Australian citizen.  They are both Catholics.  He married her in 2012.

Now, relevantly to this case, in 2008 he applied for a business visa.  That was not able to be assessed on the merits because the Minister immediately exercised his powers under section 501(1) to refuse the visa.  Then in 2012 he applied for a spouse visa and again that was immediately refused under section 501(1). 

He then realised that he was at risk of being refouled to Bangladesh and it has been accepted – I do not think it is worthwhile going into the facts of what has happened in the courts and tribunals before this, but fundamentally it has been accepted that not only would he have a well‑founded fear of persecution if returned to Bangladesh but that his wife and child would accompany him and they would have ongoing fears for their personal safety as well – to choose the words of the first Tribunal.

Anyway, so in September 2015, he applied for a protection visa and, as he says in his evidence, that was – he had to do that but he assumed that the Minister would apply section 501(1) immediately as he had done before, but the Minister did not.  As the plaintiff says – I will not go to the affidavit – but words to the effect that he thought, “Wow, this – maybe he’s a decent bloke after all and he’s going to give me a chance and, you know, he’s not going to hit me with 501 again”.

So he went before the delegate of the defendant and the delegate then decided that he was not a refugee, that he did not have a well‑founded fear.  The plaintiff then sought ‑ ‑ ‑

HIS HONOUR:   There was an application for review to the AAT and that was dismissed and then the Federal Circuit Court found jurisdictional error, sent it back and a new tribunal found that he did have a well‑founded fear of persecution.

MR KLINE:   That is it, your Honour, perfectly, thank you.  That is four proceedings.  There is actually probably a fifth proceeding if one wants to be precise about it in that the first Tribunal, whilst finding that he did not have a well‑founded fear took the very unusual course of recommending that because of the situation with the wife and child, he should be granted a visa anyway – made a recommendation under section 417 that the Minister exercise his powers to grant a protection visa anyway and the Minister did not do that.

Then there is possibly even – you might call it a sixth round of proceedings because after the second Tribunal found that he was a refugee, a lot of proceedings took place to fill in all the necessary bits and pieces that need to be assessed before the visa can be granted and only then did the Minister send a notification that he was considering exercising his powers under ‑ ‑ ‑

HIS HONOUR:   Relevantly, the two points are – it does not matter how many proceedings, to use that word loosely, were involved but one, the Federal Circuit Court was involved in a judicial proceeding and you rely upon that, and two, over a period of time there was no exercise of discretion under section 501 while the matter was being dealt with administratively and by the Federal Circuit Court.

MR KLINE:   That is right.

HIS HONOUR:   They are really the two points you rely upon, are they not?  It is not really the number of administrative proceedings that were involved.

MR KLINE:   Not literally, no, but it is – in relation to the constitutional argument the only proceeding that is relevant is the proceeding before the Federal Circuit Court because we are talking about ‑ ‑ ‑

HIS HONOUR:   Yes, and in the estoppel argument the point is delay.

MR KLINE:   The estoppel argument – I put it on two bases.  Well, perhaps, I will just - your Honour is obviously on top of the facts.  I will jump to the estoppel argument and that may answer your question.  What I am saying in the estoppel argument is that this case is an appropriate vehicle to consider the circumstances in which a well‑established principle of administrative law may be qualified in operation.  Now, that comes out of the statement of Chief Justice Mason in Quin’s Case.  Does your Honour want me to give you all the references?

HIS HONOUR:   I have read all your submissions on this.

MR KLINE:   Then I will not, thank you.  That will save us a bit of time.  So your Honour well knows what the general principle is, that an estoppel cannot be raised against a public authority.  That is what was restated by Chief Justice Mason in Quin.  In the same judgment, a few paragraphs after, he proposed a qualification ‑ ‑ ‑

HIS HONOUR:   Possible qualification.

MR KLINE:   A possible qualification.  I think it is really important to make the point that what he said was obiter, what Justice Gummow said in Kurtovic was obiter and what every judge has said in every case so far is obiter – and there are 100 learned commentaries on all those obiters, that is why we are here today because I am saying ‑ ‑ ‑

HIS HONOUR:   The proposition is, I think you would accept, a novel proposition, to put it in neutral terms, but ‑ ‑ ‑

MR KLINE:   I do not – well ‑ ‑ ‑

HIS HONOUR:   I do not use the word “novel” pejoratively.  It is novel in the sense it has not been decided before.

MR KLINE:   That is it; that is it.

HIS HONOUR:   But your submission is essentially that this Court should try to assess on what is necessarily limited submissions, and necessarily absent facts, given that the Minister has not yet exercised any discretion - a conclusion as to whether or not there is a serious case to be decided about the existence and operation, in this case, of a public law administrative estoppel.

MR KLINE:   Well, your Honour, with respect, I would say that all the facts are there, that this Court needs to know.  Nothing is in dispute in terms of the factual situation.

HIS HONOUR:   What is the detriment – first of all, what is the reliance detriment that the applicant suffered and secondly, if there is no reliance detriment, what is the detriment generally?

MR KLINE:   The detriment, as briefly as I can put it – but if I can just go back one step to answer your Honour’s question.  What I am saying is that if one reads his Honour Chief Justice Mason’s dictum closely, he is quite naturally proposing that an administrative estoppel, whilst having its progenitors in equity and to a degree in the common law, has to be a different beast because of the very different nature between private and public law.

So, for example, if Italian parents come to Australia and they have a child, he is going to be of Italian origin.  He is going to carry that culture with him but he is going to also take on the culture of Australia because that is the necessary thing that he has to do. 

What I am saying that Chief Justice Mason said is that there is a difference, and the core of that difference is that with a private law estoppel there is only one detriment that one is looking at.  That is the detriment to the representee from the representor’s resilement from his representation, whereas, in public law, what his Honour is saying is what I have called a balance of detriments.  There is the acknowledged detriment that – sorry, a balance of detriments and those detriments are not to the representor or the representee, except in a very narrow sense.  Both detriments are to the public interest.

On the one hand, on this side of the scales, it is acknowledged that because the – I am getting feedback, hang on.

HIS HONOUR:   I can hear you very clearly.

MR KLINE:   Yes, it is coming back at me.  So there is a balancing of detriments.  On the one side there is the detriment that the public interest will suffer if the Executive is forced to narrow the exercise of its discretion.  We accept that and that is the first part of what Chief Justice Mason said.

On the other side there is the detriment that Chief Justice Mason envisaged to the public interest, not to the representee, to the public interest because the public interest must comprehend the interest of the individual and if the individual suffers what he calls grave injustice then that may outweigh the balance on the other side, the detriment to the public interest from narrowing the discretion.

I have added in another factor on this side of the scale, on the other side of the scale, the exception side of the scale, if your Honour will, and that is if the public have suffered a detriment, directly, not philosophically or in any sort of sociological way by balancing just detriment to the narrowing of the discretion and the detriment to the individual, but if the public has directly suffered by having to endure significant costs that were not necessary, then that should be added into the balance as well.

So what I am saying Chief Justice Mason said is take those two situations – and in the vast majority of cases the first side of the scale, the detriment to the public interest from narrowing the discretion will triumph.  But there will be situations where there is a grave injustice to the representee and I say here, coupled with a significant cost to the public purse, there will be situations where that will outweigh it.  Now, that is a different sort of estoppel.  That is a public law estoppel, if you like, that Chief Justice Mason was propounding and I have said that ‑ ‑ ‑

HIS HONOUR:   Is there not a preliminary point that you need to deal with which is when one speaks of detriment to the public interest of the Executive narrowing its discretion, one needs to consider first whether such a narrowing would be consistent with the terms of the statute.  What is the narrowing that section 501(1) would be subject to?  What are the conditions - or the hindrance that is to be placed on 501(1) and how would that hindrance operate in relation to a prospective decision that has not yet been made?

MR KLINE:   To answer your Honour I think it is really important to make a distinction between what is called in the authorities and in the learned articles the two types of situation where – we have this general concept that an estoppel cannot be raised against a public authority, but there are two very distinct categories there.  There is what is known as the ultra vires principle and the no fettering principle.   So if a public official, for example, promises to do something that she or he cannot do, then to seek to raise an estoppel against that is very difficult because it would be forcing them to act beyond the power of the legislature – that is ultra vires ‑ ‑ ‑

HIS HONOUR:   But that is not this case. 

MR KLINE:   No, this case is discretionary and it is an exception to the no fettering principle and if the defendant is held to his representation then it narrows his discretion but it does so in an intra vires fashion.

HIS HONOUR:   But the point that I am putting to you – is not the first question the question of how the statute either contemplates or is compatible with the fettering or the narrowing of that discretion?  For example, if the statute had expressly provided “this discretion shall not be hindered or narrowed in any way” would you say there would be any scope then for a doctrine of public law estoppel?

MR KLINE:   I do not know.  I think that then we get into the Plaintiff S157 kind of situation where how much can the legislature interfere with what the judiciary might do and so on.  But that is not the situation ‑ ‑ ‑

HIS HONOUR:   But this is not a suggestion that the discretion shall not be hindered in any way.  It is not a suggestion that discretion shall not be subject to judicial review in any way.  It is just a suggestion that any action taken by the Executive shall not hinder its own discretion.  If that were expressly provided then there may be questions as to how that would be compatible with a public law estoppel doctrine.  Without that express provision, one then needs to ask the question of how does one deal with questions of implication and that really forces one to confront what exactly is it that the estoppel is said to preclude and how.

MR KLINE:   I think, to answer your Honour, if we are only looking at the statute and what the statute does or does not say, all the cases that I have cited in my arguments, including Quin, including Kurtovic, had nothing in the statute about estoppel because it has not been thought that an estoppel could be raised against a public authority. 

Nonetheless, Chief Justice Mason said that it could and a whole range of cases have implemented that, as you have read in my submissions, at least in relation to the exceptions to the no fettering principle – Justice Windeyer in Brickworks, Lord Denning in a couple of cases, Justice Lee in Rubrico’s Case, on and on and on, they have all said they have not felt themselves constrained by what the statute does or does not say.  They have accepted that the statute gives a discretion to the public official in question to do what he or she is required by the statute to do, but they have looked at the situation where there might be a significant injustice – maybe we are getting hung up a little bit on the word “narrowing”.  I used that because that is the word the Chief Justice used, but it is really a question of preventing the exercise of that discretion in a situation where to do so would create grave injustice.

If I can just jump sideways for a moment and I kind of feared this would happen.  I have to talk to your Honour in great detail about this because the serious question to be tried is opposed.  But your Honour only has to be convinced that there is a serious question to be tried.  I mean, your Honour is giving me arguments – not arguments, suggestions, from your side and we are throwing that back and forth and, at the end of the day, when the final matter is heard, the Court may very well find against me, or against the plaintiff.

But I would submit that there is a world of material there that raises a serious question to be tried.  I mean, the very fact that your Honour said this is “novel” – and I went to take exception to that but you explained that not novel in the pejorative sense but novel in that it has not yet found its way into ratio decidendi, yes, that is true.  But this country has been waiting for 27 years for a vehicle to come along to answer this question.  A world of commentators have been giving their opinion, including Chief Justice French in two separate papers that I refer to, that say it is a possibility.

Now, at the end of the day, at the final hearing the Court may say no, there is never going to be a discretion.  Chief Justice Mason’s proposition in obiter was wrong.  We do not declare that to be the law.  We declare the law to be ‑ ‑ ‑

HIS HONOUR:   I understand your submission on that.

MR KLINE:   Yes, yes.  So obviously it is probably not going to be valuable to your Honour for me to plough over what I have put in my written submissions about the various cases.  But it may be valuable – please correct me if I am wrong and your Honour wants me to talk about the cases in some detail, but clearly I think you have read them and you know exactly what I am talking about.

In terms of the balancing of the detriments, I think it is worth, if your Honour will indulge me, going through actually what they are on the facts of this case because I am trying to establish that - assuming this Court would find and would declare that Chief Justice Mason’s exception is the law - is this an appropriate vehicle?  Is this a vehicle that shows there has been grave injustice on the other side of the balance sheet?

I have said that the way to look at this is that if the defendant were allowed, after all that has happened, to exercise his discretion to refuse the visa, then what is the detriment that will have been suffered?  Well, the plaintiff will have had to unnecessarily undergo merits review with all the time and emotional – the review before the delegate with all the time and emotional and cost commitments of that.  The defendant’s delegate will have had to consider the matter and will have had to give reasons.  His ancillary staff will have to have been involved.  The public would have had to pay for all that.  The plaintiff will then, in a similar fashion, have had to unnecessarily undergo merits review before the AAT with all the emotional cost and time commitments of that and his family – the strain on his family and the strain on his witnesses and so forth.

The Tribunal and its members will have had to unnecessarily devote time and intellectual commitment to the completion of that matter.  The public will have had to pay for all that.  Then the plaintiff will have had to unnecessarily undergo judicial review before the Federal Circuit Court.  A judge of that court, his associates and ancillary staff will have had to prepare for hearing and the judge will have had to consider and deliver reasons in the matter.  The Australian Government Solicitor will have had to expend time, as will have the counsel and the public will have had to pay for the costs of the court, the judge, the associates, the ancillary matters, the ancillary staff, the Australian Government Solicitor and for counsel as well as the costs of counsel for the plaintiff.

Then the plaintiff and his family and witnesses and counsel and the Tribunal will have had to go through all that stuff again and will have had to bear the costs – the public will have had to bear the costs a second time and probably, most importantly, in my submission, the plaintiff will have had to spend 18 unnecessary months in detention with all the mental and physical distress incarceration entails, including separation from his wife and young child and distress to the wider family, and the enormous cost that we all know that has – the costs of incarcerating him at Villawood and at Christmas Island and of hiring an aeroplane to unnecessarily fly him to Christmas Island and all the ancillary costs that a single mother has to bear and the public has to bear to support her and so on and so on.  When I say 18 unnecessary months, it was available to the defendant to make this decision the moment the plaintiff put in his application for a protection visa.

HIS HONOUR:   Yes, you have made that point.

MR KLINE:   If he had done so, then all that would have been avoided.  At no time did he indicate that this was a possibility, to the defendant.  It would have been the simplest matter in the world to say – and this forms part of my jurisdictional error argument as well – would have been the simplest matter in the world for him to say, “Look, we’re not knocking you back on the character grounds, as we have done with your two previous visas.  But you need to know that we may, and we can at any time.  Indeed, we can do that even after – if you establish yourself as a refugee – even after that we can do that.”

In my arguments in relation to the jurisdictional error I have said that this is a quintessential denial of procedural fairness – yes, of procedural fairness.  What one needs to – it is so obvious that one needs to put that to the defendant right at the beginning and say – and I do not think I need to quote authorities on this to your Honour, I think it is – I would say it is crystal clear – and say to the defendant “What do you have to say about that?  Would you like to make submissions as to why that ‑ ‑ ‑

HIS HONOUR:   You do not put this application on the basis of procedural fairness.  That is your second ground and as I understand it ‑ ‑ ‑

MR KLINE:   That is my second ground – yes, I am sorry.  I am jumping about, but, yes, that is my second – I am just saying and what I was talking about relates also to the second ground.  I am in the middle – where would your Honour like me to go now?

HIS HONOUR:   I understand the submissions you have made about the serious question to be tried concerning estoppel.  The constitutional questions I think you have set out in detail in your submissions, although are you aware of the recent referral by Justice Keane to a Full Court for consideration of Chapter III issues in the matter of Falzon v Minister for Immigration and Border Protection?

MR KLINE:   No, I am not, your Honour.  Sorry.

HIS HONOUR:   That is a matter which raises for the consideration of the Full Court the question of the validity of section 501(3A).  I do not think it can be said that the basis is identical to the Chapter III grounds that you raise, but there may be some overlap between the questions that are raised in respect of section 501(3A) and some of the points that you raise in relation to section 501(1).

MR KLINE:   I do not know the case, but again, this plaintiff’s submissions depend on – in the constitutional argument – this whole process of going round the houses through all these things so that the ‑ ‑ ‑

HIS HONOUR:   Your point is that it is an exercise of judicial power, but you do not make any – at this stage you do not make any submissions about the effect being a punitive effect.

MR KLINE:   I would not have thought it had to be a punitive effect, your Honour.  I would have thought that any interference by the Executive – I put it in two ways.  I said that there is interference with the judicial process by rendering them nugatory.  So if you look at the ‑ ‑ ‑

HIS HONOUR:   I understand your submissions.  The point that I am putting to you is that there are matters that are raised in Falzon that concern the punitive effect - whether there is a punitive effect of section 501(3A) which is not a discretion, but whether that has the effect of rendering the provision, if it be punitive, a provision which is contrary to Chapter III.  I am summarising the point at a very, very high level of generality.

MR KLINE:   Sure.  Well, I am obviously at a disadvantage, but I am guessing that we are talking about – we must be talking about - in Falzon – a challenge to the legislature and this is a totally different matter.  It is very interesting that all the commentators and all the decisions from Marbury v Madison onwards stress that the judiciary has to protect itself as much from invasion by the Executive as it does – those terms are a bit over the top, but you know what I mean, your Honour – invasion by the Executive as by the legislature, and Justice Gibbs says in many ways the threat to the judiciary from the Executive which it cannot control is much greater in a direct sense.

But if one looks at the cases there really is very little, very little authority on what this Court does – or any Federal Court – if invaded by the Executive.  Some of the cases are couched in terms of an invasion by the Executive but when I read them I am thinking to myself they really are, at base, cases dealing with interference with the judiciary by the enactment of legislation.

This, again, is a novel point in the sense that your Honour used it before because I do not know of authority – I would say that Falzon must be completely relevant because it is dealing with the legislature and it is very hard to get one’s – when I was first looking at this, it is very hard to get one’s mind around it because starting with Boilermakers’ and going all the way through, everything really is about the legislature passes something, the judiciary says you are invading our sphere by this particular section and throws it out or accepts it or whatever the case may be, but the Executive, by its nature, interprets and implements what the legislature – and as I have said, I think already ‑ ‑ ‑

HIS HONOUR:   I think I understand that, Mr Kline.

MR KLINE:   Yes, yes.  So I think Falzon – so what I am saying is that this process – the Federal Circuit Court judge is sitting there and he is agonising over this decision but it does not matter because when it comes back – you see, if I can go back one step.  If – if the defendant had done – had interpreted his powers in a way that was, in this plaintiff’s submissions, appropriate and not in a way that would interfere with the judiciary, he would have exercised them immediately.  Then if he had said, you know, we are sending you back and the plaintiff wanted to challenge that, it would go to the appropriate court – the Federal Court.  Everybody would know what everybody’s powers were – the Federal Court would know why it was deciding it.  It would know that when it made a decision that decision would be of value and binding.

The Federal Circuit Court in this case – it is just irrelevant what it decided because the defendant was going to wait for the matter to come back to this stage where the refugee status was established and then do what he could have done at the beginning - absolutely irrelevant for everybody.  Moreover, he set himself up as a kind of final Court of Appeal.

So I am saying that it is a double interference with the judicial process - by rendering it nugatory whilst it is happening and by usurpation of the judicial power by making – by the Executive making itself the de facto court of final appeal.  I have used that somewhat frivolous example of the Ministers caught on the front lawns of Parliament House, but I think it makes that point.  He can sit there.  He can decide for his own precedential edification or just amusement how many stages he can let this go through, including, by the way, in this case, if he had appealed to the Federal Court he could have rendered their processes nugatory and even possibly, had this Court granted leave, rendered that nugatory.  Nothing anybody in the court system did would have mattered because he is going to do what he could have done in the beginning. 

Now, in my respectful submission, that is an interpretation and execution of what Parliament gave the Executive.  That sidelines the court.  It is really important, I think – I have said in my submissions and I am not sure how much your Honour has picked up this particular element because I kind of skated over it, but the plaintiff in this case is not in any way in a unique position.

The provisions of section 198 enable – the provisions of section 198, that is the sort of people who can be sent back even if they are found to be refugees or even if they have a potential to be refugees but that has not been assessed, in either case an enormous range of people, most of which have nothing to do with people with criminal records – the most notorious being what I call the two‑day rule where, if you get your visa in later than two days you can end up having – being refouled.  Now, that is complicated and it involves two other sections and there is debate on the issue and I do not want to ‑ ‑ ‑

HIS HONOUR:   I think you should stick to the facts of this case, Mr Kline.

MR KLINE:   Well, yes, but I mean – I agree, your Honour, but what I am saying is relevant for this Court always, with respect, when looking at a matter is what does the decision in this case – what impact does that have on the nation, the purpose of this Court.  You get to a situation where the rendering of the judicial process as nugatory and the usurpation of the judicial process is possible in virtually every case that a person – that an asylum seeker is found to be a refugee, or may be found to be a refugee.  I think that is a matter that this Court would take into account. 

But, again, I come back to the point this Court might find against me on that at the end of the day, but I have to say, with respect, that there are certainly serious issues to be tried.  If there are serious issues to be tried, your Honour has the power to release the defendant under a writ of habeas corpus so that he does not have to spend another 18 unnecessary months in detention when this Court may very well find that his detention – or at least his detention for the last 18 months was unlawful anyway.  Given that the balance of convenience has been conceded I would argue that your Honour has many serious issues to be tried here and on the authority ‑ ‑ ‑

HIS HONOUR:   The balance of convenience, as I understand on your submission, is the potential liability to be refouled.  That is it, is it not?  I mean I am not suggesting that that is not a very serious matter in the balance of convenience, but that really is your point.

MR KLINE:   No, at this point, the balance of convenience, I think my friend accepts, is in the plaintiff’s favour because if your Honour finds against the plaintiff then he goes on spending time ‑ ‑ ‑

HIS HONOUR:   Yes, because the balance of convenience to which you are pointing – the reason why the balance of convenience is in the applicant’s favour is because of the threat of refoulement of the plaintiff.  You say that that is such a substantial matter in the balance of convenience that if there is a serious question to be tried then that substantial matter means that an interlocutory injunction ought to be granted.

MR KLINE:   Well, that is one thing, but the other thing is the ongoing detention.  I think that is a different matter.  If your Honour were ‑ ‑ ‑

HIS HONOUR:   That then comes to the habeas corpus point, I understand, which is then a question of whether the ongoing detention is lawful or unlawful pending an exercise of discretion by the Minister.

MR KLINE:   Well, if your Honour accepts that the defendant forwent his discretion by proceeding in the manner that he has proceeded, either because an estoppel can be raised against him or because he can be prohibited for committing jurisdictional error or because he can be injuncted for infringing Chapter III, if your Honour finds there is a serious question to be tried about that, then that means that at the point 18 months ago when he set out on this journey he should not have set out on this journey and that the plaintiff has spent 18 unnecessary months in detention and if your Honour ‑ ‑ ‑

HIS HONOUR:   How do you deal with section 196(1) of the Migration Act then?

MR KLINE:   What VFAD, the Full Federal Court decision, makes clear is that – well, there was a Full Court decision cited on the same day as the Full – same Bench.  If I can just go to those, I might ‑ ‑ ‑

HIS HONOUR:   I am familiar with those decisions.  Those decisions are all concerned with circumstances where an applicant says “I was granted a visa” or “I was lawfully given a protection visa” and that is what the dispute is about.  Here, a discretion has not been exercised.  I think on any view of the facts the applicant does not currently have a protection visa.

MR KLINE:   No, but, your Honour, a person can be a lawful non‑citizen because – for reasons other than having a visa.  What we are saying is he was a lawful non‑citizen 18 months ago when the procedures of the defendant failed or aborted or ‑ ‑ ‑

HIS HONOUR:   Which provision of the Migration Act brings the applicant within a position as a lawful non‑citizen, because a lawful non‑citizen is defined as someone who is not an unlawful non‑citizen?  An unlawful non‑citizen is a person who, in very broad terms, does not have a visa.  So what provision do you rely upon of the Migration Act to say that your client is a lawful non‑citizen?

MR KLINE:   I suppose – and this may sound like a fine distinction, but I do not think it is.  What I am saying is that his detention was unlawful at that point.  So the cases that talk about an unlawful – I have to get the wording round the right way – the cases that talk about lawful detention, like Al‑Kateb and so on are not relevant.  What is relevant is a case like VFAD where they say if his detention was unlawful – now, whether I can point to a ‑ ‑ ‑

HIS HONOUR:   Perhaps if I put it this way.  Do you accept that the Minister is required, subject to exceptions that are not relevant here – that a minister is required to detain an unlawful non‑citizen under section 196(1)?

MR KLINE:   Yes.

HIS HONOUR:   Then do you say that your client is not an unlawful non‑citizen, which means your client must be a lawful non‑citizen?

MR KLINE:   I would say that his detention ‑ ‑ ‑

HIS HONOUR:   What provision of the Migration Act do you rely upon to establish that your client is a lawful non‑citizen because if your client is an unlawful non‑citizen the point is that the provision of the Act which you do not challenge requires the Minister to detain him?  Detention cannot be unlawful if it is a detention which is not just a matter of discretion, but a matter of duty.

MR KLINE:   Yes.  I cannot point to a section of the Act and I guess again we are getting into novel areas, your Honour.  But I would be asking this Court on a final hearing to accept, on the basis of all those arguments – I will not go through them again, the three arguments that I have – that the detention was unlawful.  If I am asking your Honour today is there a – what I am putting to your Honour today, and I am hoping your Honour will find, is that there is a serious question to be tried about whether his detention has been unlawful for the last 18 months and, if your Honour finds that, on the authority of VFAD, your Honour is fully free and we would respectfully submit should release the plaintiff.

HIS HONOUR:   Yes.

MR KLINE:   I have probably covered everything, I think, your Honour, have I not?

HIS HONOUR:   I think you have comprehensively, Mr Kline.

MR KLINE:   I do not want to go back and start ploughing over them again.

HIS HONOUR:   Yes, all right.  I will hear what Mr Lenehan has to say.  Thank you, Mr Kline.

MR KLINE:   Thank you, your Honour.

MR LENEHAN:   May it please the Court.  I will start by addressing and adopting what your Honour says about prematurity.  There is, as your Honour has ‑ ‑ ‑

HIS HONOUR:   Mr Lenehan, you will have to speak up – the link is ‑ ‑ ‑

MR LENEHAN:   I apologise.  There is, as your Honour has noted, yet to be a decision made under 501(1).  The decision may ultimately well go in favour of my friend’s client and I am told that the Minister would not, if, in the circumstance your Honour envisaged, that is that he sought to exercise his review rights after such a decision was made and went against him – would not seek to remove the plaintiff before those review rights were able to be – were exercised.

HIS HONOUR:   Is the Minister prepared to give an undertaking, for example, that the Minister would not return the applicant within, say, 21 days of the decision being made in circumstances in which, first of all, there are review rights under section 500 and, secondly, in which the applicant has raised arguments, subject to any determination today, about the potential validity of the exercise of any discretion by the Minister?

MR LENEHAN:   My instructions, your Honour, are that the Minister does not give that sort of undertaking for the reasons that in practice it is never required, that is, he does not do the thing that is feared by my friend.

HIS HONOUR:   Sorry, I cannot hear you, Mr Lenehan.

MR LENEHAN:   In practice, as a matter of practicality, the Minister does not do what is feared by my friend, that is remove in the place of the exercise of those rights and so he does not give the form of undertaking that your Honour has in mind.

HIS HONOUR:   There is no basis for the fears that Mr Kline has raised ‑ ‑ ‑

MR LENEHAN:   Correct.

HIS HONOUR:   ‑ ‑ ‑ that there would be a return, given the many cases that proceed through the Federal Circuit Court and the Federal Court where, pending review, the Minister never returns an individual applicant.

MR LENEHAN:   Precisely, that is the point, your Honour.  Just rounding out then prematurity, in any event, by reason of public interest criterion 4001, which, in effect, reflects section 501, that is that it requires as a criterion for a grant of a visa to be satisfied at the time of the grant, in the case of a protection visa, that either the applicant satisfy the character test or that the Minister determine that despite not satisfying the character test the visa should, in any event, be granted.  So that criterion is something that will need to be addressed, no matter what happens.  So for that further reason, there is an element of prematurity and perhaps futility in this whole ‑ ‑ ‑

HIS HONOUR:   Sorry, I missed that again, Mr Lenehan.  You will have to speak up.  You have a very soft voice and the video link is not picking your voice up properly.

MR LENEHAN:   I do apologise, your Honour, and I will speak, hopefully, more directly into the microphone.  Because of that criterion, 4001, which reflects, as I say, section 501 in its operation on the character test there is going to be, regardless of whether the route that my friend says should be taken, that is that we should proceed directly to consideration of whether he gets a visa, or whether, as is proposed by the Minister, there could be consideration of the application under 501, there is going to be consideration of the character question.  Essentially, the same question is going to have to be answered either way.  Now, that approach ‑ ‑ ‑

HIS HONOUR:   That is because, as I understand it, the 4001 criterion comes in through section 65.  Is that right?

MR LENEHAN:   Correct.  It is one of the criteria that need to be satisfied at the time of the grant of the visa and, more specifically, it gets in through Schedule 2 of the regulations and specifically, in Schedule 2, clause 866.225, the applicant has to satisfy, amongst other things, criteria 4001.

HIS HONOUR:   Yes.

MR LENEHAN:   Then, the terms of 4001 start with:

Either:

(a)the person satisfies the Minister that the person passes the character test –

or relevantly:

the Minister has decided has decided not to refuse to grant a visa to the person despite –

not being satisfied that the person passes the character test.  Now, as we understand his position, my friend concedes that he does not pass the character test and so he needs to get in under 4001(d).  But, in any event, as I say, this question of the character test is going to come up either way.  That, in my submission, is a distinctly unpromising start to any argument founded on estoppel, to any argument founded on unreasonableness.  It is unlikely, in the extreme, that the Minister is estopped from doing something that, on any view, the Minister or Minister’s delegate is going to have to do.  Now, can I then move quickly to address the arguments that my friend has addressed.  Your Honour has ‑ ‑ ‑

HIS HONOUR:   Just so I understand that point, that point is really that, if one put it in the negative, even if the Minister were estopped from relying upon section 501, the Minister would necessarily have to, even at this late stage, proceed to engage exactly the same exercise under clause 866.225 which picks up provision 4001 and applies the same character test.

MR LENEHAN:   Precisely.  So then addressing what my friend says about estoppel, your Honour has seen from the submissions that what he seeks to do is to leverage into Australian administrative law jurisprudence the approach of Lord Denning from Laker Airways.  Your Honour will have also seen that we rely on what was said by Justice Gummow in Kurtovic and that criticism was, as my friend accepts, noted by Justice Mason in Quin.  His Honour in the relevant passage in Kurtovic identifies what he describes as two “fatal” obstacles.  We would rely, in particular, on the first “fatal” obstacle, that is, his Honour says:

the question of where the balance lies between competing public and private interests in the exercise of a statutory discretion goes to the merits of the case, and is thus one for the decision maker, not the courts –

That is, his Honour’s objection goes to what we would describe as bedrock questions as to the limits of judicial power.  Now, if it were the case, as your Honour tried to explore with my friend, that there was some room, some foothold in the statute for that sort of exercise, that is, that one could, as a matter of construction, seek to narrow the exercise of the discretion, that would be one thing, but there is not in this statute, and the exercise that my friend seeks to have your Honour pursue is, for the reasons given by Justice Gummow, in my submission ‑ ‑ ‑

HIS HONOUR:   You may be right about that, but I am not aware of any court that has ever considered these questions of statutory implication outside the general context of Minister for Immigration v Li‑type reasonableness questions.

MR LENEHAN:   Yes.

HIS HONOUR:   So, in other words, if one generally implies concepts that discretions will be exercised reasonably in the sense described in Minister for Immigration v Li, then it may still be an open question as to whether one might imply limitations or restrictions that promises will be kept and so on.  I think that that might be the nature of the argument that could be developed, although it does show the real novelty of this proposition at this stage.

MR LENEHAN:   Yes, and so if I were to take up your Honour’s suggestion there and move into Li territory, the question would then become where does what Chief Justice French referred to as the area of decisional freedom, where does that stop.  That, your Honour answers by reference to the statute and its scope and objects.  This statute is about the regulation of people within Australia and then specifically 501 is about the protection of Australia from certain persons.

Applying the sort of analysis from Li you would say, perhaps contrary to what my friend says, that there was an obvious and intelligible reason for the Minister moving to do what he is doing here, having reference to those sorts of objects - that is the protective purpose.  I accept what your Honour says, that this is a – the way that my friend puts it is a novel area and your Honour will have seen that we do not stop with his estoppel arguments at that point, that is we do not stop by simply saying that because there is no decided case he cannot get to where he needs to get.

HIS HONOUR:   Yes.

MR LENEHAN:   We say, further, that there is no unambiguous – no sufficiently unambiguous and clear representation relying on what Justice Gummow said in Kurtovic.  I know your Honour has read the authorities.  Your Honour will have seen that Kurtovic was, in my submission, a distinctly more promising case for this sort of argument, that is it was not simply the Minister standing by, having revoked a deportation decision.  There was an express letter saying words to the effect of “if there is any further conviction, then it will lead to reconsideration of this power” and so that might have been said, was said to lead to an obvious inference that it was only in that sort of further conviction case that there would be a reconsideration of the power.

Then after that warning letter the Minister – which was issued in 1985 – waited until January 1988 to finally make the deportation order.  So it was an express – it was that sort of representation made in a letter combined with standing aside and silencing in that case that might have been said to lead to an estoppel and yet, in the passage from Justice Gummow at page 207 that we have cited in the written submissions, your Honour will have seen that his Honour does not accept that that was a sufficiently clear representation to found an estoppel, referring to well‑known authority in that regard.  Similar conclusions were reached by the other members of the Full Court – Justice Neaves at page 196 and Justice Ryan observing that he shared Justice Gummow’s doubts.

We say that exactly the same applies here and applies a fortiori.  All that the Minister has done here is exercise the power in the manner provided for by the Act.  Any view that the applicant took about what was encompassed by the Minister’s adoption of that approach reflects, in my submission, only his idiosyncratic views about what might have been in the Minister’s mind, his speculation about what the Minister was up to.  None of that, in my submission, is the sort of sufficiently clear representation that Justice Gummow refers to as being required.

So that is one clear additional difficulty.  The further difficulty is that identified by your Honour, that is where is the reliance detriment here.  In answer to your Honour’s question my friend referred again to the point that he makes in his written submissions, that is to say there are various species of detriment, either suffered by his client or suffered by the public at large.  Now, if that is sufficient, we are now in the territory of substantial enforcement of legitimate expectations against everything that has been said in cases including Lam and your Honour will be aware that that is not, to put it mildly, an orthodox approach in Australian public law.  Other than that ‑ ‑ ‑

HIS HONOUR:   Mr Lenehan, you may be right about all of these points, but is not the short point that all of these questions, particularly given that they are being raised in the context of a fairly novel proposition, are matters that, if they were to be decided, ought to be decided against concrete facts?

MR LENEHAN:   Yes.

HIS HONOUR:   Concrete facts by which I mean a decision which has been made and then that decision would then get assessed against the whole of the background that led up to it.

MR LENEHAN:   Quite.  I think my friend accepted in argument that his position would really remain the same after any decision was made.  It is really to involve no different point, which then goes back to the prematurity issue that I started with.  Your Honour, in fairness I should mention that I am told by my friend that I have misstated what he wants to say on his interlocutory application in the sense that he does seek to put both legal reasonableness and procedural fairness as points that he says raise serious issues to be tried.  Our answer to that, and I do not need to address your Honour on it orally, is in 45 to 48 of our written submissions – that is the Li ground and also the procedural fairness ground.

HIS HONOUR:   So you are saying that ground 2 actually is a ground for the application.  I thought that Mr Kline had answered a question of mine that ground 2 was not a ground – of this application.

MR LENEHAN:   Yes, I was – that was my impression on reading his written submissions also, but I was told by my instructor that in fact that is not the case, that he does seek to put ground 2 as a serious question to be tried also.

HIS HONOUR:   I will hear from Mr Kline in reply about that.

MR LENEHAN:   Yes.  In terms of the Chapter III argument, your Honour, we say that is simply misconceived.  It is totally different to Falzon which your Honour mentioned and I think my friend accepted that.  Falzon, as I understand it, involves a question of legislative usurpation based on the punitive effect of what is done under 501(3A), that is the automatic cancellation provision.  This argument appears to be totally different.

We have outlined at paragraphs 29 to 30 of the submissions how it is that the visa application came to be where it is, that is back before the Minister and as I have said there the Minister is now under an obligation under section 47(1) of the Act to consider that application and he continues to be under that obligation until one of the events in section 47(2) come to pass.

Those steps or their consideration, in my submission, could, on no sensible view, involve any interference in any usurpation of any function said to be exclusively – that involves an exclusively judicial power.  It is commonplace that a variety of things may affect, in the sense that my friend seems to have in mind, decisions made by courts.  Duncan is an obvious and recent example of that where, following the decision in Cunneen, the New South Wales legislature sought to expand the jurisdiction of the ICAC.  None of that involves any usurpation in impermissible interference in the judicial power of this Court or any other court, and none of that infringes Chapter III.

That leaves only what was said then about VFAD and we adopt what your Honour said in relation to sections 13 and 14, to which we referred in the written submissions.  The point that your Honour made is simply this,

that the plaintiff is an unlawful non‑citizen.  He is unable to identify any provision in the Act which puts him outside that status and while that continues there is lawful authority for his detention.  So on any view, that prayer for relief should fail.

So those are the reasons that we say, firstly, that the interlocutory applications should be dismissed, but we also say, as we have made clear in the written submissions, that this is an opportunity for the exercise of a power conferred by 25.03.3(a) of the Rules, that is to dismiss the application.  In the alternative, as your Honour has seen, we say the matter should be remitted and if your Honour is minded to do so, then the appropriate court to remit it to, in my submission, would be the Federal Court.

HIS HONOUR:   Why would not – if your submissions about the interlocutory applications were accepted – why would not the appropriate order necessarily be to remit the matter rather than to determine it under rule 25.03 in circumstances in which both of the arguments – argument one – submission one and submission three, involve developing areas and secondly, in circumstances in which the second submission is dependent upon events that have not yet occurred and it would be very, very difficult to determine in advance what the response is to something that has not yet happened.

MR LENEHAN:   Yes.  Now, I am not sure that I understand your Honour’s point.  Does your Honour have a third course in mind?

HIS HONOUR:   No, the question is why remittal ought not be appropriate as opposed to, as I understand your primary submission is effectively summary disposition of the principal claim.

MR LENEHAN:   Yes.  Your Honour, I would accept that, and if your Honour is against me in terms of the various weaknesses in each of the claims, then that is the appropriate course.  Yes.

HIS HONOUR:   All right.  Mr Kline, anything in reply.

MR KLINE:   I do not actually have anything in reply, your Honour, but clearly I have said or done something – I am not sure what – to give both my friend and your Honour the impression – so it is obviously my fault – that I am not also relying on the second argument, the jurisdictional error argument.

HIS HONOUR:   I think I – I probably assumed that you were not relying upon the second ground because the ground, as I understand it, is jurisdictional error in relation to a decision that has not yet been made.  But your point is that if a decision were made under section 501, that decision would be invalid and therefore you should be entitled to an interlocutory injunction to restrain the making of a decision that would be invalid?

MR KLINE:   Not exactly, no, not exactly, and I think this is where I have misled your Honour and my friend.  I am seeking prohibition, so if it were a matter of waiting to see what the decision were, then one would seek certiorari to quash it and mandamus and so on.

HIS HONOUR:   Yes.

MR KLINE:   But I am seeking prohibition to prevent the threatened exercise of that discretion.

HIS HONOUR:   But it is not – the exercise of the discretion is an exercise of a discretion not to grant – ultimately not to grant a visa, is it not?

MR KLINE:   Yes.

HIS HONOUR:   It could not be possible for me to grant prohibition against the Minister to prevent him from exercising a discretion not to grant a visa in circumstances where there are a number of other reasons – health considerations and so on – that simply are not before me that the Minister might rely upon.  National interest is another one.  There are a whole lot of other conditions and considerations that are not before me on this application.  I think that is one of the reasons why I had assumed that ground 2 could not be directed to a prohibition at an interlocutory stage.

MR KLINE:   I was going to address your Honour on all that because they have all been fulfilled.  But I did not because I stopped short of that because I thought ‑ ‑ ‑

HIS HONOUR:   Are they not conditions at the time of decision?

MR KLINE:   Yes, but the nature of ‑ ‑ ‑

HIS HONOUR:   How can you say that something has been fulfilled in the future?

MR KLINE:   The nature of prohibition is to prohibit something from coming about, prohibiting from exercising that discretion.

HIS HONOUR:   Because health can ‑ ‑ ‑

MR KLINE:   No, no, but ‑ ‑ ‑

HIS HONOUR:   Because health conditions, national security conditions, all of those have been fulfilled in the future.

MR KLINE:   They have been fulfilled, they have been fulfilled already.

HIS HONOUR:   But they have to be fulfilled at the time of decision, do they not?

MR KLINE:   But they will be.  For example, I have a letter here because there was some confusion – I did not want to trouble the Court with these minor details because I am thinking that we are dealing with a serious question to be tried.  But the health condition – we have a letter from the Department because the sixth part of the process was a whole range of correspondence between the plaintiff and the defendant’s clerks and representatives to make sure that all these things were in place.

HIS HONOUR:   I see.

MR KLINE:   And they are.  So really the only thing that is outstanding is the 501 and we are seeking to prohibit him exercising that because in so doing he would be disproportionate and lacking evident justification à la Li.  That is all I was saying.

HIS HONOUR:   Yes, thank you.  Given the hour, I think what I will do is I will adjourn until 9.30 am tomorrow morning and then give reasons at that time and make orders then.

MR KLINE:   Thank you very much.

MR LENEHAN:   Thank you, your Honour.

AT 3.38 PM THE MATTER WAS ADJOURNED
UNTIL TUESDAY, 9 MAY 2017