Plaintiff S22/2025 v Minister for Immigration and Multicultural Affairs

[2025] HCATrans 45

[2025] HCATrans 045

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S22 of 2025

B e t w e e n -

PLAINTIFF S22/2025

Plaintiff

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Defendant

GAGELER CJ
EDELMAN J
JAGOT J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA AND BY VIDEO CONNECTION

ON MONDAY, 16 JUNE 2025, AT 11.00 AM

Copyright in the High Court of Australia

GAGELER CJ:   In accordance with the protocol for remote hearings, I will announce the appearances for the parties.

MR C.L. LENEHAN, SC appears with MR T.M. WOOD and MS K.E.W. BONES for the plaintiff.  (instructed by Human Rights Law Centre)

MR P.M. KNOWLES, SC appears with MR B.D. KAPLAN and MR M.P.A. MAYNARD for the defendant.  (instructed by Australian Government Solicitor)

GAGELER CJ:   The parties have been informed, I hope, of the expectation of the Court that the hearing will conclude within two hours.  Mr Lenehan.

MR LENEHAN:   Yes, your Honour.  Can I move directly to our argument and say quickly that what I propose to do is to address the three grounds that your Honours have seen and then briefly say something about an extension of time at the end.

Ground 1, as your Honours have seen, contains a series of related grounds and those are, in the order that I am going to address them:  first, that the delegate’s approach was legally unreasonable; secondly, that it proceeded on a misunderstanding of the law in what I will call a Patterson and Graham sense; and third, that it failed to discharge the requirement to consider the legal consequences of the decision.

Your Honours may have picked up that the facts have somewhat developed since we filed our initial application, and that reflects, then, our approach to ground 1, because as things emerged, it seemed to us that, really, it is the first aspect of this ground that I have noted that is quite stark, that is, the delegate reasoned from a factual premise that the delegate knew was wrong.  If I can commence that by noting a passage in the reasons that your Honours have all no doubt looked at, that appears at 356 of the special case at paragraph 117.

So, this is in the section headed “Legal consequences”, which starts at 355.  In the passages that lead up to 117, you will see there is a wrestling with this Court’s decision in NZYQ, and the delegate gets to the point, at 116, of saying that the plaintiff could not be detained if a non‑revocation decision were made, and therefore will be released from immigration detention.  Then, in 117 – which from our perspective, for ground 1, is the critical passage – it is said that the delegate is:

aware that even if a non‑revocation decision is made –

the consequence that I have just noted, that is, the plaintiff:

will not remain indefinitely in detention.  He will be released –

And then the sentence that we emphasise:

The Minister will separately consider the type of visa on which he should reside and conditions to be imposed on that visa, following further advice from the Department.

There is then, in 118 ‑ ‑ ‑ 

EDELMAN J:   Mr Lenehan, is your complaint on the legal unreasonableness and misunderstanding of the law grounds really just with the words “the type”?  If those two words had not been included, could it have been said that there was any unreasonableness or misunderstanding?

MR LENEHAN:   I think I would have to accept no, your Honour, but those words are there, and in the context of the reasons are undoubtedly referring to the possibility that there may be more than one visa class that might be granted to my client, whereas – and your Honours see this both in the regulatory framework – and, indeed, in the facts, which I was going to briefly address your Honours on – that there was really but one alternative, and that is the grant of a BVR.

EDELMAN J:   There was a second alternative, which was that no visa be issued and that the applicant be released without a visa.

MR LENEHAN:   That is a possibility, your Honour, but it is a possibility that the delegate, again, reflecting the framework that was imposed following NZYQ and was contemplated by Parliament would not happen, because you see the delegate say:

The Minister will separately consider the type of visa –

So, it is contemplated that there will be a visa granted.  It is suggested that that may involve some sort of wider discretion to be exercised on the part of the Minister but, in fact, everything was headed in express form towards the grant of a BVR, which, in fact, happened the very same day that the non‑revocation decision was made.

Can I just remind your Honours – without taking you to them, because your Honours are all very familiar with the regulatory scheme from YBFZ and other decisions that your Honours have more recently made – the regulations your Honours have in the joint book of authorities are in volume 1, tab 4, at page 46.

Your Honours will recall that 2.25AB, which is at the bottom of page 57 of the joint book, is a provision that empowers the Minister, without application, subject to the two conditions that are set out there, to grant the BVR to a person in the position of my client.  Your Honours will recall that the first condition, 2.20(18) – your Honours find it on the preceding page – that is:

there is no real prospect of the removal –

and that was a conclusion that the delegate found applied in this case.  Then, essentially, under (2), there needs to be satisfaction:

that, at the time of decision, the non‑citizen does not hold a substantive visa, a criminal justice visa or an enforcement visa.

In essence, they are an unlawful non‑citizen.  Can I also just draw your Honours quickly to the visa conditions, which your Honours find a little further on in the joint book, that is starting at page 60.

The only thing to note there is, if your Honours are looking at 070.611(1), 070.612(1) and 070.612B(1), all of those conditions are mandatory, there is no discretion as to whether they are imposed.  There is, your Honours will recall from YBFZ, in 070.612A(1), an evaluative provision regarding, amongst other things, the monitoring condition and the curfew condition that your Honours addressed and found invalid in YBFZ.

Can I also briefly remind your Honours – although your Honours will recall this – your Honours have YBFZ in volume 3, tab 28, and at 943 of the joint book, paragraph [33] and following, your Honours talk about the legislative context in which these provisions were introduced.  And your Honours will pick up there, in [33] that:

the purpose of those amendments –

that is, amendments that were made to both amend the Act and directly amend the regulations were:

“to ensure that non‑citizens for whom there is no real prospect of removal from Australia becoming practicable in the reasonably foreseeable future . . . are subject to appropriate visa conditions on any bridging visa granted to them following release”.

There is then, regarding the later amendments, in paragraph [36], some similar material extracted from the extrinsic materials there.  We have picked up on some further relevant passages in our application, in application book 12, paragraph 15, also quoting from the explanatory memorandum.  The upshot of that is that the expectation underlying this package of amendments was that all members of the NZYQ cohort would be granted a BVR and all would then be subject to at least the mandatory conditions provided for by that scheme for the purpose of protecting the community.

That, I will call it an inevitability, is reflected here in the facts and what happened in my client’s case.  If I could pick that up by taking your Honours to the special case, starting at paragraph 16.  Your Honours will see there – this is at March 2024 – while the plaintiff was in prison, he was identified as affected by the decision in NZYQ and:

added “to the prison caseload on –

what is called:

the NZYQ master spreadsheet”.

Then, if your Honours move forward in the special case to paragraph 38, your Honours will see that:

On 4 October 2024 –

something called:

a “Comprehensive Case Assessment for NZYQ referrals” was –

completed.  Then, paragraph 39, on that same day, there is an email to a number of Department addressees:

to alert them that the Plaintiff was “potentially NZYQ‑affected” –

and asking them to:

“Please ensure that appropriate planning arrangements commence, including notifying relevant law enforcement agencies . . . Please also ensure that all relevant information is provided to –

amongst other things, the, BVR Case Management, for the purpose of addressing:

potential management of the client in the community”.

Then, if your Honours look down that page and over the next page, 40 and 41, you will see, also in October, on the 9th, there is an email sent to the director of the:

Character and Cancellation Branch, with the subject “CZQ19 VIEW ONLY TO COMMENCE BVR PROCESS – POTENTIALLY CZA19 AFFECTED –

That is referring to the case that your Honours heard not so long ago, where a view was put forward that perhaps even prior to the completion of the visa assessment process, people might be entitled to be released under the doctrine of NZYQ.

Then, if your Honours look to 41, there is then an email forwarded to the non‑revocation decision delegate, Mr Kakos.  What is provided to Mr Kakos are some attachments which are, essentially, the submission and the draft reasons that are in very similar form to the decision that is ultimately made.  If I could ask your Honours perhaps just to go to the emails themselves.  Your Honours pick that up first at, first, page 303 of the special case.  Your Honours there see the email attaching:

a s501CA delegate submission for delegate views at this stage only to commence BVR process –

Then, page 304, there is then the passing on to Mr Kakos of that material.  Then, if your Honours could forward to page 325 in the special case, you will see this is an email on 9 October 2024.  At the top of the page, you will see it goes to, amongst other people, “BVR Reporting” and “BVR Submissions”.

GAGELER CJ:   Mr Lenehan, can I just ask, what finding of fact are you asking us to make by reference to this material?

MR LENEHAN:   Your Honour, ultimately that Mr Kakos, the revocation decision delegate, was very well aware that there was a process in train to consider the grant of a BVR to my client and that, in fact, was the only form of visa being considered to be granted to him to do the very thing that Parliament contended, that is, impose conditions upon his release.

EDELMAN J:   Well, that was the only form of visa that could be granted.

MR LENEHAN:   Yes.

EDELMAN J:   So, I mean, one would expect in any event that there would be a process that was going on.

MR LENEHAN:   Yes.  Your Honour, perhaps I am simply stating the obvious, but when one then looks back to 117 and the suggestion that the Minister was taking advice for the purpose of considering “the type of visa” to be granted, that is simply not so.  What is happening is a one‑way ticket to a BVR, which would have, mandatorily, the various conditions that are set out in the regulations and subject only to the possible addition of the conditions which required some sort of evaluation.

That is the essential point that we take from all of this.  Perhaps I do not need to labour the point, but it is clear from the aspects of the special case that we picked up in our reply and which are also set out in out outline of oral submissions in this case that the delegate knows that all of this is happening.

Your Honours will see – perhaps if I could just take your Honours back to the special case and note that in paragraph 50, there is discussion in an email chain of the timing, and the essential point to take from that is the timing of the non‑revocation decision and the timing of the BVR decision are to be aligned.  So, Mr Kakos has some availability difficulties on the initial date that is proposed for both decisions to be made, and that is then accommodated by aligning the decision such that they both take place within a very short space of time on 24 October.

GAGELER CJ:   Mr Lenehan, as I read paragraph 117, the delegate is contemplating that the applicant will be released, that the applicant will get a visa, and the visa will be subject to some conditions.

MR LENEHAN:   Yes.

GAGELER CJ:   Are you saying a proper consideration of revocation required more specificity than that?

MR LENEHAN:   Yes, your Honour, we do.  Well, there are two points.  The first point is that what is said in 117, to the extent that it suggests that the Minister is separately considering the type of visa to be granted, that is simply not right, and that is the first aspect of our ground.  There is no material before the non‑revocation before Mr Kakos to suggest that there was some broader range of visas being considered, because the only thing being considered was a BVR.

The reason – to more directly answer your Honour’s question – that is of some importance, your Honours will have seen that in the reasons, considerable weight is given to the notion of the protection of the community, and up to NZYQ, of course, that mode of reasoning proceeded in this way:  the refusal of a visa or the refusal, in this case, to revoke cancellation would mean that the person remained in detention.

The consequence in this case is not that.  The consequence in this case, because of the way that the delegate reasons up to 116, is that my client is going to be released.  So, it is in fact critically important to that consideration, and that is the consideration that your Honours see in the conclusions that is essentially determinative of this case.  It is important to that consideration what is going to happen when my client is released into the community.

The fact that the delegate knows that there is a BVR, which is inevitably going to be granted, and the BVR will have at least all of the mandatory conditions set out in the regulations attached to it, all of that is vitally important to that consideration – protection of the community – and yet one finds the delegate not grappling with that specific consequence that has large consequences for my client in terms of his future liberty in the community, on the false basis that the Minister is considering a range of different types of visas.

So, we say, first, that was central to the decision to be made; and second, you do not see it reflected at all in 117.  Essentially, the simplest way to understand our first ground is that it is that the delegate had actual knowledge that what was said in 117 was wrong.  So, we say that that was irrational or unreasonable because, essentially, there was to be no separate consideration at all about different visa types.

Your Honours have seen that we also put this ground, as I mentioned at the outset, in two other ways but, really, all of these ultimately are closely related.  The first is that we say that this is proceeding on the basis of a misunderstanding of the law, which picks up what your Honour Justice Edelman put to me, which is essentially that there is no, under the scheme, other visa type that can be granted.

We draw in aid authorities that your Honours, again, are very familiar with, authorities like Re Patterson and Graham.  Graham, your Honours will recall – and this perhaps answers a point put by our friends – not a part of the statute that directly regulated the decision be made, but rather a part of the statute that regulated what could be disclosed to a court, which was held to be invalid, and at paragraph 68, the Court nevertheless held that what was involved there was a misunderstanding of the applicable law.

Perhaps I will address this quickly in reply, if this point is persisted with.  We say that the attempted reliance on your Honour the Chief Justice’s reasons in Probuild is ultimately wrong, because “applicable law” in this context means all of the law that the decision‑maker is required to consider as an aspect of the decision, here, including what forms of visas could be granted to my client – essentially, only one.

Then the final, but again related, aspect that we – or way in which we put this ground is that which your Honours have seen in a series of decisions of the Full Federal Court starting with NBMZ.  I will not take your Honours through that, because your Honours have seen the extensive submissions both parties have made about those authorities in writing.

Essentially, the principle in NBMZ is a form of Peko‑Wallsend‑type analysis, and in NBMZ, your Honours find, starting at around about paragraph 6, Chief Justice Allsop and Justice Katzmann applying such an analysis and concluding that at least the legal framework in which a decision is made is something that a decision‑maker is required to take into account.  And so – and this perhaps further answers your Honour the Chief Justice’s question – when we come to this aspect of ground 1, we say there is, in that way, an obligation to have regard to that framework as a mandatory relevant consideration.

NBMZ, of course, involved the prospect, pre‑NZYQ, of definite detention, and that was something that the Full Court in NBMZ found was required to be taken into account and had not been taken into account.  We say that equally, here, the way in which the Act and regulations operated necessarily meant that the legal consequences of the non‑revocation decision was that my client would be subject to or granted the only visa that could be granted to him for the very purpose that your Honours picked up in YBFZ.

That is, to impose conditions through the grant of that visa on his position in the community at the point he was released.  That, we say, was a – to use the language of the authorities – direct legal consequence of the decision which was required to be considered.

EDELMAN J:   Mr Lenehan, if one were to read the last sentence of paragraph 117 with the emphasis that the respondent places on the words “separately consider” – in other words, as a statement that issues of type of visa or visa, if any, are matters to be separately considered by the Minister – would the NBMZ issue arise?  So, if the delegate had simply said:  issues as to which visa, or issues as to whether a visa and the conditions on the visa are to be made or imposed are matters to be separately considered by the Minister – if the delegate had simply said that, would there be any issue as to a failure to consider legal consequences?

MR LENEHAN:   Well, your Honour, we say yes because, again, looking at the way in which Parliament intended this scheme to operate, it was not that people would be released into the community without a visa and without conditions attached to their release, it was that every one of these people was to be granted this visa, not for the usual beneficial purpose of giving someone a permission to remain in Australia and therefore be out of detention, because they would not be an unlawful non‑citizen, but for the specific protective purpose that was identified in YBFZ.

That is, we will impose onerous conditions on this person on their release so that when they are in the community, despite the fact that we can no longer detain them, the community will, in the way set out in the conditions, be protected in that way.  So, my answer to your Honour ‑ ‑ ‑ 

EDELMAN J:   So, that is a highly likely, or extremely likely, or nearly inevitable factual consequence, rather than just a legal consequence?

MR LENEHAN:   Your Honours, it is the consequence that was intended by the Parliament, so it is at least a purpose of the legislation that this kind of visa be granted.  There is, I think your Honour has in mind, nevertheless a discretion in AB of the regulations – it is “may grant a visa”.  But in terms of the legislative purpose that one can discern from the amending legislation enacted in two tranches, it is that that was picked up in YBFZ, and it was that these visas would inevitably be granted to every person in my client’s position who was to be released.

So, I would put it higher than merely a practical consequence, although your Honours would have seen that in some cases, including Cotterill, and Justice Buchanan in NBMZ, that may be sufficient.  But we would put it higher than that here.  Unless your Honours have any other questions on ground 1, I am mindful of the time.  I was going to move then to ground 2.

Your Honours, I should say that Mr Knowles and I have spoken about division of time, and it was agreed that I would go for an hour, and then Mr Knowles would go for 50 minutes or so, and I would have the remaining time for reply.  I am looking at Mr Knowles, and he is not looking concerned by that suggestion.

Ground 2, your Honours, is a relatively discrete and short point, which your Honours pick up perhaps first by going to the direction itself, which is, relevantly, in the special case book at 551 – “Expectations of the Australian Community”.  This is an aspect of the direction that, of course, your Honours have recently considered in Ismail, and what is set out here, if your Honours look perhaps first to 552 and 8.5(4), is an articulation of the government’s views about:

the expectations of the Australian community as a whole –

So, that is what we say is, in fact, meant by the general expectations of the Australian community and, as your Honours noted in Ismail, it is not for the decision‑maker to seek to independently assess the community’s expectations in the particular case.

With that starting point, your Honours then look at paragraphs (1) and (2), and there are, we say, two general expectations set out in those two paragraphs.  The first is, in subparagraph (1), an expectation where that provision applies that, essentially, one is not to allow a non‑citizen to enter and remain in Australia.  The second is that:

visa cancellation –

this is in subparagraph (2):

or non‑revocation . . . may be appropriate simply because the nature of the character concerns or offences –

Then we say this, the second sentence, is part of that same expectation, and your Honours pick that up from the words:

In particular –

these things are to be read together:

the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct . . . of the following kind –

and there is then a series of specific kinds of conduct, and it is not in dispute that none of those applied to my client.  One then goes from there to the way in which the delegate approached this consideration, and your Honours find that in the special case book at page 354 and paragraphs 101 and following.

So, your Honours see in 101 the first part of the direction.  That is, subparagraph (1) of paragraph 8.5.  In 102, your Honours see, substantially reproduced, subparagraph (2), “In addition”, and the delegate picks up but does not specifically refer to all of the kinds of conduct that are then listed in the second part of 102, starting with the words “In particular”.  Then, 103, a point that I passed over before, but it essentially reflects a further aspect of the direction, that is, 8.5(3).

Then, in 104, our friends seek to say that the words “general expectations” means that the delegate has, in the preceding paragraphs, and in particular 102, sought to split out the first sentence of 8.5(2) and has not applied that – sorry, has applied the first sentence but has not applied the second sentence, I think is the argument that is put against us – and what we say is really what I foreshadowed at the outset, that all that 104 reflects is the point that 8.5(4) makes clear, that these things are the general expectations of the community as articulated by the government.

The decision‑maker is not to second‑guess how those expectations may apply in a particular case.  They are general in that sense.  It does not suggest that what the decision‑maker – what the delegate was doing here was to somehow parse and split out the various parts of the direction that he has just substantively reproduced in the preceding paragraphs.  The difficulty then is, given the paucity of the reasoning in 104, that is:

I have proceeded on the basis that –

those:

general expectations . . . apply in this case.

All that one can discern from his reasoning is that he has applied what he understands to be the expectations in 8.5(1) and (2), but your Honours have seen our argument and will understand from what I have said before, none of the plaintiff’s offending fell within the listed types of conduct in 8.5(2), and so there was no logical basis for proceeding on the basis that the expectation in that clause applied, yet that is what one gets from the very short statement in paragraph 104.  So, that is the first aspect in which we say there is jurisdictional error in this reasoning.

The second aspect of this ground, as your Honours have seen from what we say in writing, and this picks up the point that I made in response to the Chief Justice’s question in ground 1, and that is that the delegate’s reasoning is what I will call internally inconsistent with the findings that are made on the legal consequences of the decision because, as your Honours now would appreciate from the arguments that your Honours have seen in the case and from what I have said this morning, the delegate found, in the legal consequences section of the decision, that the plaintiff would be granted another visa.

Again, that is what one sees in paragraph 117, but that sits uncomfortably with the expectation articulated in paragraph 102.  That is, that the nature of the offending is such that the community would expect that the person should not continue to hold a visa, and we say there is no intelligible basis articulated in the reasons as to how that general expectation applied in this case where it was inevitable that the plaintiff would continue to hold a visa, regardless of the revocation decision.

Now, our friends seek to get around that in paragraph 27 of their response by saying that perhaps one could explain what was done by the delegate in this case as somehow consistent with the expectations of the community as articulated in the direction.  We would accept that it may well be that the delegate could have determined that that aspect of the direction was, say, irrelevant in this case.  That is provided for by – if your Honours still have the direction, and then at page 546 of the special case book, clause 6.

Your Honours will see that there is a general, I will call it, escape clause.  That is, one applies the considerations where they are “relevant to the decision”.  So, the delegate could have said, well, that aspect of the expectations consideration is not relevant because these are circumstances that were not appreciated when the direction was drafted.  It may have also been perhaps possible to try and reason to some form of adaptation of 8.52, but that – and this gets back to what was said in Ismail by the Court and your Honours – is perhaps difficult by reason of 8.54.

It is difficult because that sort of adaptation would have involved going beyond the government’s views as articulated in the direction, which simply do not seem to contemplate this specific situation.  So, in effect, what our friends are suggesting might have been done, but your Honours do not find it anywhere in the reasons, would be to independently assess the community’s expectations in this particular case.

Now, your Honours do not need, perhaps, to solve that perhaps knotty problem because, again, what your Honours see in 104 is just a very short statement which does not seek to address any of that complexity.  There is simply no consideration at all of the fact that the plaintiff would be granted a BVR, let alone connecting that outcome with how the deemed expectations of the community, that is, that the person should not hold a visa, could apply in these circumstances.

So, we say the reasons simply disclose no rational basis in that way for concluding that that part of the direction applied in this case, again, using the language that your Honours find in 104 of the reasons.  As we understand it, if we are correct in either of those submissions, it is not disputed that the error in this case was material.  So, that is really all I want to say about ground 2.

Can I then move to ground 3.  Ground 3, your Honours have seen, concerns the delegate’s consideration of what – there is now no dispute – was a privileged legal advice given by counsel to the plaintiff which had been provided to the department in error.  If your Honours turn up page 383 of the special case, your Honours will see “Attachment H”, and that includes, amongst other things, the letter from a solicitor, H1; and then the merit advice from counsel, H2; it also includes an application made by my client to Legal Aid as H3.

Can I just ask your Honours to go quickly to those documents themselves.  So, the solicitor’s letter, your Honours will find at page 471, and within that letter your Honours will see there is reference to “an envelope” and:

“Documents protected by Legal Privilege.

Not to be opened, inspected, or read by any person other than the inmate.”

Clearly conveying that there was privileged material which was confidential and to be read only by my client.  Your Honours then find the advice itself at page 473, and the passage that is quoted in the reasons – and I will come back to this shortly – appears at page 481 and paragraph 15, where counsel states that:

His Honour found the applicant's “criminality to be one of a high order.”

But that is not the end of the advice.  What then is done at page 482, under the heading:

Was there an error in his Honour’s finding of the objective seriousness of the offending –

is to consider that statement made by the sentencing judge, and then the conclusion at paragraph 21, counsel concludes that he has:

not identified any patent errors in his Honour’s reasons.

Then, if your Honours go forward to page 486, and paragraph 30, you will see there is a more general conclusion:

For the reasons set out above, I am of the opinion that an appeal to the Court of Criminal Appeal against the severity of the sentence is unlikely to succeed, and I am therefore unable to find merit.

So, we say, even confining oneself to that material as it was presented to the delegate as attachments to the draft reasons and the submission, it was apparent that the merit advice was privileged, and we say it was likely to have been provided inadvertently.  We also say the document itself was adverse to the plaintiff.  It is a reasoned consideration of the reasoning of the primary judge, a conclusion that there is no error in that reasoning – it bolsters what his Honour had concluded.

We have set out in some detail – and in the interests of time, I will not take your Honours through this – in our reply at paragraph 8 of how it is that that material come to be before the delegate.  Your Honours will see there, we say, that there was no – the only inference we say that your Honours could draw was that the department appreciated that this material was legal advice and appreciated that it was ultimately, really, not relevant to the non‑revocation decision and not intended to be provided by the plaintiff to the department for the purpose of that decision‑making process.

Your Honours, that inference, we say, is also supported – I have skipped over the Legal Aid application, but when your Honours come to look at that, you will see that that further bolsters what I have just said, because it is essentially the plaintiff seeking assistance in relation to the non‑revocation decision.  That material is plainly, we say, not material which one would conclude was intended to be provided to the department.

Now, we move from there and then say, when your Honours look at the reasons, your Honours will see that there is, it is true, reference to – perhaps if your Honours start at page 343, your Honours will see at paragraph 7, there is no doubt that the delegate has considered the material that is provided by the plaintiff, and that includes attachment H.

If your Honours then move to 345 – this is in the “Protection of the Australian community” – there are various references to “Attachment B”, which are the remarks of the sentencing judge themselves – so, you see that in 17 and 18.  Then over the page at 346, you see that again in 31 and 32.  And then it continues on page 347, 33 and 34.  But then there is a distinctly different reference in paragraph 35, and that is to “Attachment H2”.

EDELMAN J:   Mr Lenehan, that reference to:

criminality . . . of a high order –

was exactly what the sentencing judge found, was it not?

MR LENEHAN:   That is true, but we say that the further inference that your Honours can draw is that the delegate at least considered the opinion that that finding did not involve error and there was no merit to challenging it on appeal.

EDELMAN J:   But how could that have affected the delegate’s reasons in any way?  Because, absent an appeal or absent any evidence of the appeal, the delegate would have proceeded on the basis that the decision did not involve any patent error.

MR LENEHAN:   Your Honour, we would say that at least it bolsters that view that is expressed in paragraph 35, and this gets into the sort of area that Justice Brennan discussed in Kioa.  That is, one cannot tell, having specifically referred to this material, how it was that the delegate was affected by it and whether, unconsciously, it affected their consideration of the merits – is how we would put it.

So, in terms of materiality, we would say that there is at least a reasonable conjecture that the plaintiff, if he had been given the opportunity, would have taken advantage of it by saying that the document had been provided in error, privilege had not been waived, and it remained confidential to him and should therefore not be taken into account.

Your Honour, I have to accept that one does not find in these reasons any further consideration of the specifics of what is said by Mr Trevallion, the counsel for the plaintiff, but that is how we put the materiality of what we say is a denial of procedural fairness, and we say it is stronger than cases like VEAL, where the tribunal expressly said that it gave no weight to the particular material and made the decision on other bases.

So, for those reasons, we say that ground 3 is made out.  Your Honours will have seen that we put a further or alternative argument to the effect that it was legally unreasonable for the delegate to proceed to consider the merit advice in these circumstances without informing the plaintiff, but that essentially rests on that same argument.

That then leaves me, very briefly, to say what I need to say about extension of time – our client requires an extension of approximately 3 months.  Essentially, what we say on that point is that your Honours would be satisfied that it is in the interest of justice to grant an extension because the delay is not inordinately long.  We understand the Minister to accept that.

The delay is satisfactorily explained – I will come back to that in a moment.  The consequences for the plaintiff are grave if the extension is not granted.  As we understand it, the Minister does not assert any prejudice.  We say, essentially, for the reasons that I have been advancing this morning and advancing in writing, the grounds of review have sufficient merit.

Now, I am not sure whether our friends persist with the suggestion that the delay is not adequately explained.  That, we say, is now established by the agreed facts, and in terms of that, if your Honours go back to the special case, your Honours will find in paragraph 1, my client:

is a 65 year old citizen of Iraq.

Paragraph 3, he:

cannot read or write in English.  He can speak –

only “a few words”; paragraph 4, he has a longstanding diagnosis of PTSD, so your Honours take from that he is in a position of acute vulnerability.  If your Honours to paragraph 62 and following of the special case, the circumstances of the notification are there set out.  So:

On 24 October –

he received the decision:

along with a 335‑page notification package.

Written in English, a language that he cannot understand.  Paragraph 63:

About an hour later –

he is called back by the case officer:

and informed . . . he was being released from detention.

Paragraph 64, he is given notice of a grant of a BVR.  Paragraph 66, it is now an agreed fact that he:

believed that the non‑revocation decision had been reversed and that he had a right to remain in Australia –

Paragraph 67, he:

was not legally represented at the time –

Paragraph 68, he:

felt lucky to have been released from detention and that he held a visa again . . . did not think that he needed assistance from a lawyer.

Then what ultimately caused the plaintiff to obtain legal assistance is that he was re‑detained on 16 February and informed that he would be removed to Nauru.  You see that in paragraphs 71 to 74 of the special case.

This was the first point, your Honours see in paragraph 73, that he was aware that he could seek judicial review of the decision, and then the application is filed six days later.  So, we say the explanation for delay of a few months is not only adequate, it is compelling.  For those reasons, we say that your Honours should grant the extension of time that my client needs.

I think I have left Mr Knowles the time that we agreed.  Unless your Honours have any questions, those are the submissions that the plaintiff makes in chief.

GAGELER CJ:   Thank you.  Mr Knowles.

MR KNOWLES:   If it please the Court, I propose to structure my submissions by briefly addressing first the extension of time and then addressing ground 1 and ground 3.  Mr Kaplan will separately and out of sequence address ground 2 at the end of our submissions 

In terms of the extension of time, I can confirm that we no longer challenge the explanation for the delay, and your Honours can effectively put a line through the last two sentences of our response at paragraph 8.  But where that leaves things is that the question of whether an extension of time of time ought be granted is in the hands of the Court and will ultimately, in my submission, turn on whether your Honours are satisfied that the substantive grounds have sufficient merit to warrant an extension of time or, to put it in the language of the section, that the administration of justice requires an extension of time.  Now, that is all I wanted to say about the extension of time.

In terms of ground 1, while my friend characterises the legal error in different ways, there was, in my submission, an important and subtle shift in the way he presented those grounds orally.  In response to a question from your Honour Justice Edelman, Mr Lenehan, in my respectful submission correctly, accepted that there would not really be any complaint if the reasons had not used the words “the type of visa” in paragraph 117.

But somewhat inconsistently with that, in response to a question put by your Honour the Chief Justice, my friend suggested that it was necessary – or at least as I understood the submission – that it was necessary for the delegate to go further than they in fact did and consider how the imposition of conditions might affect considerations of the factors relevant under the direction, including the safety of the Australian community.

Now, in my submission, that last response not only reflects something of a departure from the written case, but it is clearly incorrect, in my submission, that a delegate considering the exercise of the power to revoke a visa under section 501CA(4) must necessarily speculate as to the outcome of a separate decision which that delegate is not making and which, at that time, is yet to be made, and then consider not the legal consequence of the decision this delegate is in fact making but instead consider the possible factual consequences of some decision that may or may not be made in the future.

That really causes great difficulty to the way that Mr Lenehan posed the answer to your Honour the Chief Justice’s question and the issue, in my respectful submission, ought properly be confined to whether or not there is any error in the reference to “the type of visa” and, in particular, whether that betrays some type of error on the part of the delegate in terms of an understanding that there might be more than one type of visa available to be granted.

The second preliminary aspect that falls out, really, from Mr Lenehan’s oral submissions is the submission put that it was Parliament’s intention that, necessarily, a person in the plaintiff’s position would be granted a BVE bridging visa.  That, in my submission, is incorrect.  The position is more accurately stated in your Honour Justice Edelman’s question to Mr Lenehan, that there was, in fact, a second alternative that no visa would be granted, and although section 189 could not continue to apply to the plaintiff for so long as there was no reasonable prospect of removal in the foreseeable future, he would remain an unlawful non‑citizen for the purposes of the Act.

That was a legal possibility, in my submission, and it is not the case that there was no discretion as to whether to grant a bridging visa and, indeed, Mr Lenehan accepted that regulation 2.25AA – specifically, subregulation (2) – distinctly uses the word “may”, which is quintessentially the language of discretion.  Nor is it the case, in my submission, that this type of visa is not – to use Mr Lenehan’s word – a beneficial visa, or something of benefit.

It is true that this type of visa may be subject to conditions, including quite onerous conditions, but it is also the case that this type of visa has or confers benefits upon the holder, including benefits in terms of employment and public health rights.  So, there is, as is the case with many visas, both benefits conferred by the grant of the visa but corresponding responsibilities or obligations, and so we do not think anything really turns upon some kind of characterisation of this visa as not being of benefit.

Ultimately, in my submission, this ground can be resolved through the construction of the delegate’s reasons and, as Mr Lenehan made clear, that principally the complaint relates to one part of one sentence of paragraph 117 – and I will come to that – but it is noteworthy, in my submission, that the delegate’s consideration of the legal consequences of the decision commences at paragraph 106, which is at page 355 of the special case book.

There is no complaint at all in terms of the analysis which the delegate gave to the operation of section 189 as understood post the decision of this Court in NZYQ, nor is there any complaint of the delegate’s approach or understanding of how section 197C interacts with the obligation to remove under section 198.  When one comes to paragraph 117, my friend’s complaint ultimately is something of a pedantic complaint as to the form of expression, whereby he says that the delegate, in saying that:

The Minister will separately consider the type of visa –

either, or both, made a legal error because there was only one type of visa available and secondly he says that the delegate in fact made a statement which he knew not to be the case because he knew that a BVE process was underway.  Now, as to both of those variations of the argument, in my submission, they are not a fair characterisation of either the facts or the stated reasons.

In terms of the reasons, in my respectful submission, what the delegate is doing here is simply making plain that there is a separate consideration – that is, a consideration that is separate to the decision which this delegate is making – that the Minister will go about if a substantive visa is revoked.  This delegate expressly does not seek to pre‑empt the outcome of that process either in terms of whether a visa will be granted or in terms of what conditions might be attached to that visa.

That, with respect, is not only lawful but sensible, on the facts, because the delegate – that is, the revocation delegate – we accept was aware that there was a separate process in train for consideration of the grant of a BVE in the end that the delegate revoked the substantive visa, but we also know that this delegate was not the delegate who was going to make the BVE decision.

We know the BVE decision was not made until after the revocation decision.  It is not established, and certainly nothing on the material suggests that this delegate had any understanding of whether the BVE would be granted and what conditions would be attached to it other than he knew that there was a process in place for the Minister or a delegate to consider that.

So, in my submission, there is nothing either factually incorrect or legally unreasonable in this delegate simply declining to speculate as to whether or not another decision‑maker will, in future, make a different decision attaching different conditions to a visa.  We accept that because the applicant could not, at the time, be lawfully detained under section 189, the general power under section 195A would not have been available and the effect of that is that the BVE was the only type of visa which could be granted if a visa was to be granted.  But, in my submission, it is to read the third sentence of paragraph 117 with an eye very finely attuned to error.

EDELMAN J:   Mr Knowles, does the dispute really ultimately come down to whether the decision‑maker was required to consider only legal consequences, in the sense of only consequences that are imposed directly and immediately by the law, or whether the decision‑maker was required also to consider highly likely, nearly inevitable, perhaps even inevitable factual consequences?

MR KNOWLES:   That may be one way of characterising the dispute, but if that is the correct analysis, then the authorities from the Federal Court upon which my friend relies do not assist him, because although NBMZ was framed in terms of there being a mandatory relevant consideration to consider the legal consequences of the decision, that line of authorities was subsequently tapered somewhat.

We have cited in our oral outline – I will not take your Honours to them all, but a number of those authorities – Taulahi, which is at volume 4 of the joint book of authorities, tab 27, was an example of a case where the NBMZ formulation was restricted to what was considered “the direct and immediate consequences” of the Migration Act.  So, to use your Honour Justice Edelman’s language, the direct and immediate legal consequences.

Similarly, the Full Court more recently in BNGP – and this is at volume 3, tab 16, paragraph 101 of the decision ‑ Justice Perry, with whom the other members of the Full Court agreed, described the obligation in terms of an obligation:

to consider . . . inevitable or certain legal consequence –

as opposed to:

a consequence which is merely probable or arguable.

EDELMAN J:   I am not sure how much the adjectives in the authorities add, because – I mean, here in direction 110, clause 9 requires, as a mandatory consideration, a consideration of the legal consequences.

MR KNOWLES:   Yes.

EDELMAN J:   But, as I understand your point about the legal consequences, is that a legal consequence is something that flows as a matter of law, not as a matter of fact or exercise of some discretion.

MR KNOWLES:   With respect, yes, your Honour, and can I, without detracting from my adoption of the way your Honour put it, can I just add two things to that.  One is the difficulty that some of the Federal Court line of authority comes to is that where one considers, either pre‑NZYQ, the prospect of indefinite detention or, post‑NZYQ, the prospect of release into the community on a bridging visa.

Those are essentially matters which are not, or at least not only legal consequences, because they depend upon a factual proposition, that is, that there is no real prospect of removing the applicant from Australia within the reasonably foreseeable future, and, as the facts of this case demonstrate, that prospect can ebb and flow over time.  So, the proposition I would put is that in terms of the obligation in the direction to consider the legal consequence of the decision, this consequence – the consequence of the possible imposition of a bridging visa – is not a direct legal consequence.

The only other matter I put, and it partly reflects a response to something Mr Lenehan put, is that perhaps, when one considers an obligation to consider the legal consequence, it is necessary to ask:  the legal consequence of what?  That is, the legal consequence of the decision and the exercise of the power under consideration.  That is the context in which we rely both on your Honour the Chief Justice’s statement of principle in Probuild that what an administrative decision‑maker needs to do in order to lawfully exercise a power is to exercise the power:

on a correct understanding of the law applicable to the decision to be made.

And we say that is perfectly consistent with older and very well established principles of law, including the classic statement of Sir John Latham in R v Connell; Ex parte Hetton Bellbird Collieries, where the Chief Justice observed, in forming the state of satisfaction, that opinion must be:

formed by a reasonable man –

I interpolate, or woman:

who correctly understands the meaning of the law under which he acts.

Now, the reference by Chief Justice Latham to the law under which the decision‑maker acts and the reference by your Honour the Chief Justice in Probuild to “the law applicable to the decision” being made is important, in my submission, because not any legal error or misunderstanding of law is a jurisdictional error; it is the connection between the exercise of power and the error of law which gives rise to the jurisdictional nature of the error.

When considering whether or not this delegate made an error of law or misunderstanding of law, one considers – and in my submission, is limited to considering, for the purposes of jurisdictional error – whether or not the delegate misunderstood the scope and nature of the power under section 501CA(4) to revoke the mandatory cancellation.  An understanding of what visas may or may not be available if the decision is made is not, in itself, a misunderstanding of the law applicable to the power being exercised.

But it may be that that type of analysis involves a step that becomes unnecessary in this case because, as your Honour Justice Edelman put to me, it may be the analysis can conclude simply at the basis that the applicant’s or the plaintiff’s complaint is not that there was a failure to consider the legal consequence of the specific decision, rather, there was a failure to consider factual matters which may or may not occur following the making of the decision.

In my respectful submission, there is no error even if the delegate misunderstood what types of visas might be available, but my primary submission remains that the proper construction of that one sentence in paragraph 117 is simply this delegate not making any statement pre‑empting the decision of another delegate in circumstances where that was not his role, and where he knew a separate process was going to be undertaken but he did not know the outcome of that, and he could not know the outcome of that because the decision would only be made after the non‑revocation decision.

I do not think I need to take your Honours through all of the authorities that the Federal Court has grappled with the idea of where there is, or in what circumstances there is an obligation to consider the legal consequences of a decision, save to say that I adopt, with respect, what your Honour Justice Edelman said, which is that the position is probably now best reflected as what does the requirement of the direction – as picked up by section 499 – require?  As opposed to the more general approach in NBMZ based on Peko‑Wallsend considerations of the scope, purpose and subject.  That is all I wanted to say on ground 1.

In terms of ground 3, bearing in mind Mr Kaplan will come back to ground 2, in my submission, it is important to make clear at the outset one factual matter, and that is an important factual matter.  It comes, really, from the special case itself, at paragraphs 46 and 47.  They can be found on pages 12 to 13 of the special case book.  Paragraph 46, expressed passively, states that:

The Merit Advice was given to the Department in error.

But paragraph 47 more actively identifies the person responsible for that error, and that is the plaintiff.  The plaintiff erroneously gave the documents to the department, and one can confirm that – and I will take your Honours briefly to it, to the email that is at special case book page 174.  I take your Honours to that because, although the email is short, the employee of the department’s contract service provider, Serco, forwards a number of attached documents to the department and says simply that the plaintiff:

has requested assistance with scanning these documents and sending them to you.

So, the fairly clear inference is that the Serco officer was given documents by the plaintiff himself, to ask they be passed on to the department.  Mr Lenehan then orally refers to his reply and the way in which the department internally considered those documents and their potential relevance, but ultimately the source of the error and the inadvertence in providing privileged material was the plaintiff.

That is somewhat important because it is necessary, in my submission, to identify the legal error involved, and my friend puts it principally as a case of procedural fairness but says alternatively it could be considered legal unreasonableness.  That is a very wide proposition, with respect, and potentially of application in a large number of cases.

Is the department, as the recipient of communications from persons who have had their visas cancelled, required to check whether information that has been provided to the department has been deliberately and consciously provided for the purposes of making representations?  Does it have to do that in all cases, or only in some cases?  Is it limited to privileged information or apparently privileged information?  If not, what other types of information will give rise to this special obligation to check whether information that a former visa holder has provided was intentionally provided?

That somewhat practical focus is important in considering the nature of the error because, as we say in paragraph 10 of the oral outline – and I do not need to take your Honours to the authority – but this Court’s decision in Viane, volume 2, tab 8, confirms that there are:

no limitations on the sources of information that may be considered –

in reaching the state of satisfaction in section 501CA.  Moreover, one would not consider there to be any implied limitation that would prevent a delegate from considering information which a maker of representations has, themselves, provided.

EDELMAN J:   Mr Knowles, at some point there must be a point that is reached at which a delegate, seeing information that – whether or not that is the case here – is so obviously privileged and detrimental to a party that it could not possibly have been intended to be provided intentionally.

MR KNOWLES:   With respect, your Honour, there might be those cases, but in those cases it is a matter for the person making the error to seek to retract the document, because – I appreciate the very different context, but this Court’s decision in Glencore v Federal Commissioner of Taxation confirms that legal professional privilege is an immunity from compulsory production.  It does not provide a free‑standing right to prevent another person from using information that has been disclosed to them.

So, I do not necessarily accept the proposition in your Honour’s question that it is for a delegate to warn a former visa holder that this might have been an error.  But even if that is the case, theoretically, that there is some limitation, in my submission, it is not raised here.  I can explain that because there is a way of reconciling why a person in the position of the applicant might wish to disclose the merits advice.

I am conscious that this is not the reasoning of the delegate, and I am not putting this as a materiality argument, because I cannot speculate as to how a delegate might otherwise have reasoned.  I am rather putting it as:  this is why your Honours would not view provision of legal advice as – even one privileged – as a denial of procedural fairness.

If your Honours go to the representations that the plaintiff himself made, which is at page 165 of the special case book, the applicant, under the heading “Offending” seeks to express remorse for his offending.  He gives, at paragraph 31 an excuse based on being under the influence of drugs at the time of the offending, but at paragraph 33 he says he was:

I was very wrong to commit these offences and I take full responsibility for my actions.

So there is something, in my submission, a little unsatisfactory about a plaintiff, having made representations to the department to say they take full responsibility for their actions, to then, in this Court, submit that, in fact, there was practical injustice to him because the delegate had access to a view that not only was the conviction justified but the sentence was also justified.

One might say providing the legal advice could be seen – and we accept it, on the special case facts, that it was not done anything other than inadvertently – but in a different case, it could be relevant to say:  my appeal had no merit, I take responsibility for that, I did not pursue an unmeritorious appeal, I, rather, accepted responsibility for my offending and that should work in my favour.

So, it is not always going to be the case that provision of privileged advice in circumstances similar to this case would be – that it would be obvious to the department that it is irrelevant to the representations being made.  But I do not want to overstate that because it is somewhat hypothetical, in circumstances where we accept that the material was provided inadvertently, but it does go to show the difficulty of imposing upon a decision‑maker an obligation to determine whether or not material provided by an applicant or a plaintiff has been provided inadvertently.

GAGELER CJ:   Mr Knowles, can I just clarify something here.

MR KNOWLES:   Yes.

GAGELER CJ:   It is common ground and it is agreed that the advice was provided in error?

MR KNOWLES:   Yes.

GAGELER CJ:   It is not agreed, as I understand it, that the delegate was aware that it had been provided in error.

MR KNOWLES:   Yes, your Honour is correct.

GAGELER CJ:   So, what you are saying is really, given the other communications that accompanied the advice, we should not infer as a fact that the delegate was aware that the advice had been provided in error.

MR KNOWLES:   Yes.

GAGELER CJ:   Is that really the thrust of your submission?

MR KNOWLES:   Yes, your Honour, that is the point.  So, there was not a situation where the delegate was consciously taking advantage of an error.  That, with respect, is one of the points which we would say distinguishes this case from examples we have cited in our written response.  At footnote 44, we cite an example of the Full Federal Court’s decision in BWO19, where the tribunal asked a question of a visa applicant or a review applicant in the course of a hearing, the question called for answers which would disclose privileged communications but the tribunal did not advise the applicant that they could decline to answer the question on the basis of a claim for legal professional privilege.

Now, that we have no difficulty with.  It can constitute a legal error because it is a misunderstanding of the tribunal’s information‑gathering powers, but here, where the error has been the error of the plaintiff and it is unknown to the decision‑maker, we say it is fairly clearly not an error which goes to the scope of the decision‑maker’s legal powers, including the obligation to provide procedural fairness.

Finally, I wanted to address your Honours on materiality.  If I am wrong that either procedural unfairness or unreasonableness is attracted or established in relation to ground 3, we do say there is a significant materiality problem for my learned friend because, as became in your Honour Justice Edelman’s questioning of my friend Mr Lenehan, the delegate’s reasons extensively quote from the sentencing remarks of the sentencing judge.

For some reason, the reference to the plaintiff’s criminality being “of a high order” that is picked up in the delegate’s reasoning, instead of referencing the sentencing court or the sentencing judge’s remarks, references a statement in the merits advice, which is privileged, but that is the only reference.  As Mr Lenehan accepted, that reference, albeit in a reference to a privileged advice, is a direct quote from the finding of the sentencing judge, and the sentencing judge’s findings obviously, themselves, are not privileged.

So, when one conducts a materiality analysis, I accept that the threshold must be one of “could” rather than “would”.  That is, could the outcome have been different had, in the case of procedural fairness, the delegate have asked the applicant whether they intended to provide the confidential advice or the merits advice or, in the case of unreasonableness, whether they simply set the merits advice out of their mind and did not refer to it.

Either way it is very difficult, on the delegate’s own reasoning process, to see how that process could be any different when the sentencing judge themselves made the finding that the criminality was of a high order, where the applicant, in his representations that I have taken your Honours to already, did not seek to suggest that the criminality was anything other than high; he certainly sought to accept responsibility for his offending, he did not try to downplay its seriousness.  So, in my submission, there is no real prospect that a different outcome could have been achievable, had that one

reference to a non‑privileged sentencing remark contained within a privileged document not have been made.

Those are my submissions in respect of ground 3.  I will now allow Mr Kaplan to address your Honours briefly on ground 2.

GAGELER CJ:   Thank you.  Mr Kaplan.

MR KAPLAN:   Your Honours, the plaintiff’s second ground of review concerning the application of paragraph 8.5 of the direction is the subject of the third question of law presented by the special case.  There are two complaints made by the plaintiff about the delegate’s application of that provision.  His first complaint turns upon the proper construction of the delegate’s reasons.  It appears to be common ground, in the light of Mr Lenehan’s submissions, that paragraphs 101 through to 103 of those reasons contain a summary of the expectations of the community referred to in subparagraphs 8.5(1), (2) and (3) of the direction respectively.

Paragraph 104, in our submission, is where the delegate applied so much of the expectations of the community referred to in paragraph 8.5 as were relevant to the instant case, in accordance with the instruction in paragraph 6 of the direction.  If your Honours take up the delegate’s reasons, your Honours will see that the delegate, in paragraph 104, said that the:

community’s general expectations . . . apply in this case.

It is our contention that those general expectations are reflected in paragraph 8.5(1) and in the first sentence of paragraph 8.5(2).  So, put slightly differently, more specific or particular expectations of the community, which are reflected in subparagraphs 8.5(2)(a) through to (f) and relate to specific types of conduct were not, to borrow the delegate’s words in paragraph 104, applied in this case.

There is certainly nothing, your Honours, in paragraph 104 in this part of the delegate’s statement of reasons or elsewhere in the delegate’s reasons to suggest that the delegate have regard to the types of conduct referred to in those subparagraphs or, for that matter, found that the plaintiff had engaged in such conduct.

GAGELER CJ:   Mr Kaplan, underlying this may be a question of the construction of clause 8.5(2) of the direction.  Have those words in particular been considered in any of the case law?  I mean, you are putting it as they are meaning something like without limiting the generality of them, or going – this is some particular instances.  I think Mr Lenehan was suggesting that they should be read as limiting the previous sentence.

MR KAPLAN:   That is how I understood Mr Lenehan’s submission.  In answer to your Honour the Chief Justice’s question, I am not aware of any authorities that have construed the opening words in the second sentence in 8.5(2).  If your Honours require some further assistance on that, we could perhaps provide a note, with the Court’s leave, shortly after the conclusion of the hearing, but I am not aware of any such authority.  One other way of approaching the proper construction of paragraph 104, your Honours, is to read the reference in paragraph 104 to:

general expectations about non‑citizens, as articulated in the Direction, apply in this case.

As referring to so much of the expectations of the community set out in the preceding paragraphs that were considered by the delegate to be applicable.  So, on that construction of paragraph 104, your Honours would not need to form a view about how the words “In particular” are to be read because, as I submitted earlier, nowhere in the delegate’s reasons for decision is there any finding or suggestion that the plaintiff had engaged in the kinds of conduct referred to in 8.5(2)(a) through to (f).

EDELMAN J:   In other words, that is just a submission that, in paragraph 102, the words “through certain kinds of conduct” – one interpolates that what is meant is through certain kinds of conduct which need not be specified because they are not relevant here.

MR KAPLAN:   That is so, yes, your Honours.  That is our response to the first of the plaintiff’s complaints.  The Minister’s answer to the second of the plaintiff’s complaints is that the expectations of the community consideration was capable of rational application in this case.

So, where subparagraphs 8.5(1) and (2) refer to the non-citizen entering or remaining in Australia, or being granted or continuing to hold a visa, they are, in our submission, to be understood as referring to the non-citizen entering or remaining in Australia as the holder of the visa for which they have applied or which was cancelled.  The fact that the plaintiff had to be released from detention in the light of NZYQ and was later granted a BVR by a different decision‑maker does not detract from the rational application of paragraph 8.5 to the delegate’s decision not to revoke the cancellation of the plaintiff’s substantive visa.

Put another way, your Honours, the mere fact that as a consequence of NZYQ, the law required the release of the plaintiff from detention, does not necessarily mean that this primary consideration has no work to do.  That is because the expectations of the community is not, in our submission, an absolute concept that requires or dictates the immediate removal or detention of a non‑citizen in order that they be engaged or otherwise addressed.

Nothing in 8.5 requires that the community’s expectations as to what should occur – namely, that someone who has committed serious breaches of Australian law not be permitted to remain in Australia – have to be realised immediately in order to have rational application.  And it is also not in question that the operation of the limitation in NZYQ has a temporal element.  So, a change in circumstances may well mean that a real prospect of removal in the reasonably foreseeable future emerges, in which case the expectations of the community can be given effect to.

Indeed, so much is illustrated by the facts of the present case – as it happens, a real prospect of removal to Nauru has been identified and the plaintiff has been detained, pending removal.  That, in my submission, is consistent with the expectations of the community referred to in paragraph 8.5.

So, in those circumstances, in my submission, it was not illogical, irrational or unreasonable for the delegate to decide that the risk posed by the plaintiff to the community was incompatible with the community’s expectations, while also recognising, as the delegate did in paragraph 117, that the plaintiff had to be released from detention, and deferring the consideration of the grant of another visa, if any, and any conditions attaching to it to a later time so as not to speculate on the future exercise of a different statutory discretion.

In my submission, the delegate was not required in paragraph 104 or elsewhere in the decision to hypothesise about the prospect of the grant of a BVR, with or without conditions, or the impact of the grant of such a visa on the application paragraph 8.5 when that had not occurred.  In this way, we say the delegate’s findings are readily reconcilable so that there is no inconsistency, let alone irrationality.

It remains, your Honours, to mention subparagraph 8.5(4) in the direction, which, as this Court decided – albeit in respect of the equivalent provision in direction 90 – in Ismail, directed the delegate not to attempt to infer what the expectations of the community would be in the particular case, that is, with the knowledge of the delegate about the plaintiff’s personal circumstances, but instead to proceed on the basis that those expectations, as expressed by the government, are to be understood and applied normatively.

Now, in the face of that provision, in our submission, the plaintiff’s second argument really boils down to the proposition that the expectations of the community consideration should have been given less weight or

should have been treated as a neutral consideration because he was NZYQ‑affected.  That, of course is not the complaint about the failure to comply with the direction, nor is it a jurisdictional error.  So, for those reasons, together with those that we have given in writing, the third question of law should be answered no.

MR KNOWLES:   Those are the submissions for the respondent, may it please.

GAGELER CJ:   Yes, thank you, Mr Kaplan and Mr Knowles.  Mr Lenehan.

MR LENEHAN:   Thank you, your Honours.  Mr Knowles started with the point that, I think, suggested that I had induced some sort of conceptual confusion by saying in respect of ground 1, on the one hand there is an obligation to consider the type of visa that might be granted to my client but, on the other hand, taking issue with the actual terms used in paragraph 117.  Now, that just reflects the fact that ground 1 has a series of different aspects.

In terms of the obligation to consider the type of visa, we put that on the basis of our mandatory relevant considerations argument, which is the NMBZ point that we make.  Separately, we say the reasons that your Honours look at, at paragraph 117, diverge from the facts as known to the delegate, so that is our legal reasonableness ground, and also diverge from the law, so that is our Patterson, Graham argument.  So, there is no dissonance between the various ways in which we put our case.  They are simply reflective of the different legal principles we are invoking there.

Now, in respect of the legal reasonableness aspect and the Graham, Patterson ground, it is irrelevant that there is some form of discretion to grant or not grant the visa, because the language that we take issue with in paragraph 117 proceeded on the basis that the Minister could consider a range of different types of visas, whereas as was apparent from both facts that the 501CA delegate Mr Kakos knew and also from the law, no other visa could be granted, I think it is now common ground, but for a BVR.

In terms, then, of the legal and practical consequences and the point your Honour Justice Edelman raised with Mr Knowles during his address, it is no doubt true that the Federal Court authorities grapple with language like “direct”, “immediate”, things that have, in other contexts such as standing, posed considerable conceptual difficulties.  But if I can give your Honours just the reference to Cotterill – without taking your Honours to it, it is in the joint book at volume 3, at tab 18 – and if your Honours look, when you have the opportunity, to what is said by Justice Kenny and Justice Perry in that case at 131 and 132, the essential point is that a legal consequence arises, as is obvious, by the application of law to a particular factual situation.

So, in Mr Cotterill’s case, it was the fact that he was of ill health which meant that, effectively, what the consequences under the Act would result in is indefinite detention.  We say that aligns with what is said in Taulahi at paragraph 84, to which Mr Knowles referred, talking about direct consequences.  The consequences we say that the Act attaches to the decision simply cannot be determined in the abstract, as is revealed by what your Honours know, in terms, about this very kind of case.  That is, international circumstances may change – people may be able to be returned to a country – and so, looking at indefinite detention, which is the line of territory that these cases are dealing with, that will be very much dependent on the facts.

But in this particular context, there is no doubt that what was to happen here, as contemplated by Parliament, was that there would be only one form of visa in issue and granted, and that form of visa would impose a series of mandatory conditions on my client.  So, to the extent that your Honours are thinking about things like “direct” and “immediate”, we say we fall well on the right side of that line.

We are not, to use the language of our friends, dealing with anything that is any way speculative or contingent.  All of these things were, as the facts here show, in train and those were, see again the passages of YBFZ that I took your Honours to, the things that were the very point of this scheme.

So, when one is thinking in NBMZ terms about the legal framework, that was the legal framework which did apply to my client, was in fact applied to my client, none of that is surprising, we say.  Your Honour Justice Edelman rightly pointed out that this is dealt with in the direction.  The direction seeks to grapple with the kinds of cases that were dealt with in the Federal Court.  That is, non‑refoulement obligations, indefinite detention.  This is in that very same category of case, we say.

Now, the answer to what Mr Knowles put separately about Probuild, which we understand to be an answer to our Graham, Patterson point, is essentially the one that I gave before.  That is, when one is talking about the law applicable to a decision, as cases like Graham show, you are not dealing only with the law that directly regulates the decision‑making powers in issue.

You are talking about whatever the range of statutory and general law the particular decision‑maker finds relevant to consider, in whatever range of considerations the decision‑maker undertakes.  To the extent those involve questions of law, the point that your Honour made in Probuild is that the decision‑maker has to approach those on a correct understanding of the law.  So, we say that point goes nowhere, likewise.

Now, in terms of Mr Knowles’ suggestion that, in fact, this is dealing with ground 3, that the inadvertent nature of the disclosure of the material and the fact that it was privileged was all unknown to the delegate, we say, needs to grapple with the point that we make in our written submissions in reply by reference to McQueen.  That is, as the Court said in McQueen, the law treats the collective knowledge and experience of the department, for obvious reasons, as the Minister’s own knowledge and experience.  So, the Minister, or the delegate in this case, is entirely entitled to rely upon the sifting and selection process that goes on prior to the material being placed before them, but they take with that also the sting in the tail that the Court referred to in McQueen, and that is relying on that work does not immunise the Minister from, say, errors of law, and the knowledge of the department is then attributed to that decision‑maker.

We say – and again, in the interests of time I will not take your Honours to it, but it is set out in some detail in our written reply – there is abundant material that indicated to the department when it received this material – it is true, under cover of the email, that Mr Knowles took your Honours to, ultimately from my client – that reveals that he had understood that this was material that related to an entirely different issue:  his possible appeal in his criminal case and also seeking legal assistance from Legal Aid in respect of the 501CA procedure, all of which made clear that this material had been given inadvertently and, more than that, was the sort of material that attracted legal professional privilege.  We say that all of that, then, is to be attributed to Mr Kakos, who nevertheless expressly refers to it, makes clear that he has taken it into account, and that is where we say that procedural unfairness arises.

Now, in terms of ground 2 and your Honour the Chief Justice’s question to Mr Kaplan, we would say that our construction of clause 8.2 has to be the correct one – although I note that Mr Kaplan seemed to be undertaking to do some form of homework, and we would seek to address anything that he turns up, but looking at the words, clause 8.1 tells you the expectation is that if you commit crimes, you are not to be permitted to remain in Australia.

Then, clause 8.2 is in addition but – and this picks up what was said in Ismail and what appears in clause 8.4 – unless the particular crimes are specified in the list, then how does the delegate know what it is that the Australian community, in terms that are articulated in the direction and nowhere else, expects about particular crimes?  Because the delegate is not permitted to go further than that, by reason of clause 8.4.

Then, in terms to address Mr Kaplan’s final point, again, he gives what I will call an elaborate and inventive explanation as to how one might apply clause 8.5 to a situation that simply was not anticipated when this direction was framed, because the result in NZYQ had not been anticipated.  So, it may well be that one could say that what appears in the direction can in some way be adapted to the NZYQ situation.

Again, that involves the delegate assessing for themselves, in the language of 8.5(4), how community expectations are to be applied in a particular case or a particular set of cases, none of which are dealt with in what is articulated in the clauses that appear before, which set out in complete terms what is understood by the government to be the Australian community’s expectations.  So, that simply does not permit the sort of exercise that he is proposing, but in any event, one does not find that in the reasons.  For both of those reasons, we would say that our client is entitled to succeed on that ground also.

Your Honours, I am reminded that the direction in this case – and perhaps this actually assists my point – is post‑NZYQ, but in this respect it simply does not account for it.  All that one finds is in the four walls of the direction and the first two clauses.

Unless your Honours have any further questions, those are the submissions that the plaintiff makes in reply.

GAGELER CJ:   Thank you, Mr Lenehan.  The Court would be assisted by a note from the parties by the end of the week – that is, by the close of business on Friday – as to whether there is any authority bearing on the meaning of the words “in particular” in clause 8.5(2) of direction 110.

MR LENEHAN:   If the Court pleases.

GAGELER CJ:   Best a joint note, please, and just a reference to the authorities; no further submissions.  Subject to that, the Court will consider its decision in this matter and will adjourn until 10.00 am tomorrow.

AT 1.00 PM THE MATTER WAS ADJOURNED