Plaintiff S297/2013 v Minister for Immigration and Border Protection & Anor

[2014] HCATrans 276

[2014] HCATrans 276

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S297 of 2013

B e t w e e n -

PLAINTIFF S297/2013

Plaintiff

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Defendant

THE COMMONWEALTH OF AUSTRALIA

Second Defendant

FRENCH CJ
HAYNE J
KIEFEL J
BELL J
GAGELER J
KEANE J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 9 DECEMBER 2014, AT 10.15 AM

Copyright in the High Court of Australia

MR S.B. LLOYD, SC:   I appear with MR J.B. KING, for the plaintiff.  (instructed by Fragomen )

MR S.P. DONAGHUE, QC:   May it please the Court, I appear with MR P.D. HERZFELD, for the defendants.  (instructed by Australian Government Solicitor)

FRENCH CJ:   Thank you.  Yes, Mr Lloyd.

MR LLOYD:   I have had a word with my friend and I note the letter from the Court yesterday in relation to the Asylum Legacy Caseload Bill.  We had, in any event, prepared some submissions which hopefully the Court will have now.  I propose to address those at the outset as we were asked to do.  Before continuing with the rest of my submissions, if it is suitable to the Court, I would then allow my friend to address on that because he, as I understand it, wants to make another application, in any event.

FRENCH CJ:   Yes, just a moment, Mr Lloyd.  Perhaps you just might give us a few minutes, Mr Lloyd, and we can read the supplementary written submissions.  Mr Donaghue, before we hear from Mr Lloyd, do you also have a written submission?

MR DONAGHUE:   Not in relation to this topic, no.  We are prepared to address your Honours on it orally at the outset.

FRENCH CJ:   Thank you.  Yes, all right.  Mr Lloyd.

MR LLOYD:   In light of your Honours having just read the submissions, the only thing that I would want to add is that I apprehend, following discussions from my friend, that the point of conflict between us is that they will say first of all that we fall into paragraph (a), that no decision has been made under section 65.  I do not entirely understand how they put aside the first decision made in my client’s case under section 65, so I will let my friend explain that and I will deal with that on the fly ‑ ‑ ‑

HAYNE J:   Well, mandamus issued.  Is that right?

MR LLOYD:   No, not in respect of the first decision.  The first decision was a decision of the delegate and ‑ ‑ ‑

HAYNE J:   Maybe, but mandamus issued to the Minister?

MR LLOYD:   Yes.

HAYNE J:   Did that mandamus issue to command the fulfilment of some duty of a public nature which remained unperformed.  The words are those of the joint reasons in R v War Pensions Entitlement Tribunal; Ex parte Bott 50 CLR 242. Did mandamus issue on that footing?

MR LLOYD:   It did.

HAYNE J:   The duty that remained unperformed was what in the circumstances of this case, Mr Lloyd?

MR LLOYD:   To make a decision under section 65, following the remittal from the Refugee Review Tribunal, requiring a reconsideration of the earlier decision under section 65.

HAYNE J:   Does it follow that from the issue of mandamus that the duty to make a decision under section 65 is unperformed?

MR LLOYD:   Well, we would certainly say that no lawful decision under section 65 has been made, but we would say that on its proper construction paragraph (a) is not talking about lawful decisions but includes purported decisions.  The reason for that, if I can make that clear, is first of all if a decision is made which is only invalid, but presumably it is a decision which is adverse to an applicant otherwise there would not be any dispute, so if an adverse and invalid decision is made, paragraph (b)(iii) allows for an event to be defined to allow that to be quashed and for it to be reconsidered, or at least if that event happens, it is at that point that the conversion of application takes place.

The other reason why we say paragraph (a) should be construed as applying to purported decisions is because, if that is not the case, that would then require the Refugee Review Tribunal and the AAT in every case – not that there are many AAT cases, and there will be, one would expect, a great many RRT decisions – they will have to decide whether the decision was valid or not.  The primary decision, which is not something the RRT normally has to decide ‑ but if the primary decision was invalid on the Minister’s case, then the new law applies, but if it is valid on the Minister’s case, then the old law applies in the RRT.

We say that the Court should not readily accept a proposition that Parliament intended for the RRT and the AAT to have to determine the validity of a primary decision in order simply to know what application is before it and what law applies.  The fact that (b)(iii) expressly deals with the situation which would, no doubt, deal with the vast majority of cases of invalid decisions so that a decision is made under the old law, an application in a court is pending, if the application is dismissed, for example, then there never is a conversion.  If it is upheld then the event that

makes the conversion happen is the quashing and the sending it back to the Minister for reconsideration.  It is not the anterior fact that it was, in fact, always invalid so that (a) crystallised at an earlier point in time.

So, we say, for that reason, (a) should be construed as including both decisions and purported decisions.  In this case, there was a decision and a purported decision made under section 65 so (a), therefore, is not engaged.  Then there is no review and no capacity for review in the RRT or the AAT so they would never be engaged.  Then under (iii) we do not seek in these proceedings to have the Minister’s decision quashed.  In fact, our primary form of relief, as we say, that on 17 July 2014 the Minister was satisfied on that day of everything that he needed to be satisfied of to give rise to a duty to grant a visa.  The mandamus we seek is a mandamus to compel the grant of the visa, not to reconsider whether or not to give us a visa but to compel the grant of a visa. 

So, we say, that is not an event which enlivens (b)(iii).  On our alternative case whereby one of our arguments the regulation is to be read down, which would at least leave the possibility for the Minister to find some different national interest for my client to lose, on that position we are seeking a mandamus, a pre‑emptory mandamus to compel the Court to make a decision according to law which I accept, perhaps, falls within the second limb of (b)(iii) but we still have not and have never sought a decision to have the what we say is an invalid decision quashed because we do not think that is necessary.

So strictly speaking, even on our second scenario, (b)(iii) is also not enlivened.  For those reasons we say that our decision is not affected by what will be an Act presumably in a week or thereabouts.  May it please the Court.

FRENCH CJ:   Thank you, Mr Lloyd.  Yes, Mr Donaghue.

MR DONAGHUE:   Your Honours I hope have been given our written outline and you should also have been given a slim bound volume with a few tabs in it that contains documents that I will take the Court to in respect of this part of our submissions.

FRENCH CJ:   Now, I take it the Act has not yet received the Royal Assent.

MR DONAGHUE:   It has not and my instructions are that the best estimate is late this week or early next week.

FRENCH CJ:   Yes.

MR DONAGHUE:   Your Honours, behind the first tab in the volume that I have handed up are extracts from parts of the Bill as it still is.  Can I just take your Honours through certain features of that document, starting at section 2 which is the commencement provision?  There is a table.  The Bill is complex – set out making amendments to a number of schedules and different parts and divisions within the schedule.  For relevant purposes, it is item 7 and 8 in the table that are relevant, so those parts will commence the day after the Act receives Royal Assent and then immediately after that moment in respect of item 8. 

If your Honours then turn on two pages to section 3 of the Act.  In familiar form it provides that the legislation specified in the schedule is amended as specified in the various items.  Section 3(2) makes the point which is evident from inspection of the schedules that the form of the amendments made by this Act is both to primary legislation and in some cases to the regulations.  The Act has made a number of amendments directly to the regulations in a form your Honours have seen in a number of other Acts recently including, relevantly, by Parliament directly inserting regulation 2.08 with which my friend’s submissions are concerned.

If your Honours would turn from there onto page 35 in the bottom right‑hand corner a few pages on, it is headed “Part 4 ‑ Permanent protection visas and temporary protection visas”.  These amendments, Part 4, Division 1, change the criteria for making a valid application for a permanent protection visa – this is item 29 – relevantly to provide that a valid application for such a visa cannot be made by an unauthorised maritime arrival.  So once that provision is in force, the position will be that there will be no capacity for persons with that status to apply for a permanent protection visa.  They can make valid applications for different categories of protection visa that are created by this Act.

The next item, item 30, makes amendments to Schedule 1 of the regulations providing for the new category of a temporary protection visa and the criteria for that visa added into Schedule 2 by the Act thus set out in item 31 in a form which, as your Honour ‑ ‑ ‑

FRENCH CJ:   These classes of visa are set up by the new section 35A, are they not?

MR DONAGHUE:   Yes, the new section 35A lists a number of different categories of protection visa and then the Act inserts these criteria for those visas, albeit by doing that, by amendment to the regulation.  The criteria for the temporary protection visa are very similar to the criteria for a permanent protection visa, including, as your Honours will note on page 41, the insertion by Parliament of a criteria equivalent to the criterion that is challenged in this proceeding, that is, Parliament has added into the Act directly a national interest criteria.  It has done the same thing for another category of protection visa, the Safe Haven Enterprise visa which has exactly the same criteria as your Honours will see in 785.

HAYNE J:   That criterion goes into the regulations, not the Act?

MR DONAGHUE:   It goes into the regulations, but by reason of Parliament putting it there.

HAYNE J:   Yes, yes.

MR DONAGHUE:   So our submission would be that the question with which this proceeding is concerned about asserted repugnancy between the Regulations and the Act could not arise in respect of these criteria where Parliament itself has ‑ ‑ ‑

HAYNE J:   Well it would leave open for debate particular operations of that apparently general provision.

MR DONAGHUE:   I am not sure I appreciate ‑ ‑ ‑

HAYNE J:   Time will tell, Mr Donaghue.  It would leave open the Anthony Hordern issue.

MR DONAGHUE:   Yes, but it would be a different question.  There would be a question as to – there could not be a question of repugnancy.  There would be a question as to a harmonious reading of two different provisions made by the same legislature, in our submission. 

Now, we agree with the submission that Mr Lloyd has made and your Honours will see - if you jump forward to the last page behind the first tab you will see there extracted the relevant transitional provision, the effect of which is that the amendment that would make an application for a permanent protection visa by an unauthorised maritime arrival invalid is expressed to apply to applications made after commencement and to existing applications only in circumstances where regulation 2.08F applies.  So we agree with Mr Lloyd that one comes back to the proper construction of 2.08F in order to determine the impact of this Act on the proceeding.  That provision is set out in full at page 44 in the bundle, going back a few pages into it. 

Before I address your Honours as to the content of that clause, can I make this submission?  If your Honours were to find, contrary to our submissions, that clause 866.226 – the national interest criterion – is invalid, the consequence of that, we submit, would clearly be that the decision that the Minister made refusing the applicant a permanent protection visa was also invalid.  The position would be indistinguishable from that that prevailed in Plaintiff M47 where your Honours found that a criteria in the regulation prescribing a criteria was invalid, and a majority of the Court found that there was no need to get to the detention and Al‑Kateb issues in that case because the consequence of that finding was there was an undetermined protection visa application, that being so, the detention was plainly valid while that application stood to be determined.

So we submit that in the event that the Minister were to lose that consequence follows.  Your Honours will have seen in the special case that it is agreed at paragraph 25 that the Minister refused to grant a protection visa to the plaintiff only because he was not satisfied that that criterion prescribed by that clause was satisfied.  So there was a decision.  The special case records the decision in paragraph 24.  It was made on the basis of the clause, and if your Honours hold the clauses invalid, it follows inevitably, we submit, that the decision was invalid.

If that is right then, in our submission, when one comes to 2.08F(3)(a), the position is that before the commencement of this regulation the Minister has not made a decision in relation to the pre‑conversion application under section 65 of the Act because, on ordinary principles, those words would be construed as meaning a valid decision under the Act and that is what your Honours held in Plaintiff S157 (2003) 211 CLR 476 which we have extracted only the relevant page, but the relevant page is behind the third tab in that hand up volume. The relevant passage is at page 506, paragraph 76, where the Court held, reading from the third line:

“decision[s] . . .  made under this Act” –

relevantly the same language –

must be read so as to refer to decisions which involve neither a failure to exercise jurisdiction nor an excess of the jurisdiction conferred by the Act.  Indeed so much is required as a matter of general principle.  This Court has clearly held that an administrative decision which involves jurisdictional error is “regarded, in law, as no decision at all”.

HAYNE J:   Well, were it not otherwise, mandamus could not issue without first issuing certiorari to quash.

MR DONAGHUE:   You anticipate, your Honour, a submission I was about to make.  Here our friends are trying to navigate a crack in the regime by on the one part saying there is no application of paragraph (a) because there is a decision, but then in the very next breath saying, but we have not sought any order to quash, we just want mandamus.  Well, mandamus could only issue if there is an unperformed duty.  That must mean that there is no existing decision under section 65.  So the regime does not have the hole in it that our friends invite your Honours to find and, in our submission, the proper construction, consistently with what your Honours held in S157, is that paragraph (a) applies.

If our friends were to be correct, and as best we understand the argument against us, it seems to be that even though the relevant decision that means that we cannot fall within (a) is the decision made not by the Minister recently referred to in July, but by a delegate way back before the original RRT, and it is said even though the RRT remitted the matter back to the Minister for further consideration, that decision still has sufficient operative effect to engage the regulation.

If that is what has being put, we respectfully submit it cannot be correct and, in that respect, I would refer your Honours to section 47(2) of the Act which I hope your Honours have.  We have not given it to you.  But it is the provision in the Act that provides for when consideration must be given to a valid visa application and it provides in subsection (1):

The Minister is to consider a valid application for a visa ‑

then in subsection (2) ‑

The requirement to consider an application for a visa continues until:

(a)       the application is withdrawn; or

(b)       the Minister grants or refuses to grant the visa; or –

which must be a reference to section 65 –

(c)       the further consideration is prevented by –

a cap.  If following remittal by the RRT there is still a decision for the purposes of section 65 of the Act then it would not be possible for the Minister to continue to give consideration to anything.  Perhaps this is just a convoluted way of making the point your Honour Justice Hayne has already made.  The order that the Full Court made for mandamus following the first hearing in this matter necessarily requires that there is an unperformed duty, being the duty under section 65.

So that, your Honours, is our primary submission, that the regulation applies because of paragraph (a) with the consequence that the existing – once the Act commences the plaintiff’s existing application for a permanent protection visa will be converted into an application for a temporary protection visa in the event, of course, that your Honours – only in the event that your Honours find the criterion is invalid, otherwise the existing decision would stand.

In the alternative, your Honours, we would submit that if what I have just put to your Honours is wrong then it must follow that unless there is to be a gaping hole in the transitional provision, the language of (b)(iii) should be interpreted in order to achieve the evident purpose of the provision which is to ensure that all undetermined applications for permanent protection visas, whether they be undetermined because the Minister has not made a decision or because there is still an issue before merits review or because a court has quashed the existing decision and sent it back.

But covering that whole range of possible possibilities, (b)(iii) should be interpreted in such a way so that the word “quash” is not confined to a technical application for certiorari but extends to an order of the Court recognising the nullity or legal ineffectiveness of any existing decision that has been made and that the reference to reconsideration of the application is to be understood effectively as a remedy of mandamus whether or not formally sought. 

Our friends seek to get around the application of those words by saying we are not asking for reconsideration, we are asking for an order that there be grant but that, we submit, is just a particular application of the writ of mandamus in circumstances where the statutory – the public law duty to be performed is not a discretionary duty but a duty to act in a particular way when certain circumstances are satisfied.  I will not take your Honours to it but we have given you the relevant passages from Commissioner of State Revenue v Royal Insurance Australia Limited behind the last tab.  At the top of the very last page in that bundle your Honours will see the Court, Chief Justice Mason setting out the relevant principles.  We submit that here, even if your Honours were to accede to our friend’s application and to grant the relief sought that would be doing something that can fall within the words “reconsider the application”, it is just that that reconsideration has only one possible lawful result.

In support of that construction, your Honours, I would ask you to note the explanatory memorandum, which is behind the second tab in the hand up volume, and if I could just take your Honours to two pages within it – pages 6 and 7 ‑ really for the purpose of making this point.  It is clear, we submit, both from the statutory language and confirmed by the explanatory memorandum from halfway down page 6 through to halfway down page 7 that there was not intended to be any gap in this regime, or unauthorised maritime arrivals were to be caught up by the new regime and their applications were to be converted to applications for temporary protection visas.  Your Honours will see that theme emerging repeatedly down the bottom half of page 6, at the top of page 7 in the first complete paragraph, halfway through that paragraph it is written:

any existing un‑finalised Permanent Protection visa (PPV) application from the cohort would be unable to meet the requirements for grant (as the application will have been deemed to a TPV application).

So for those reasons, your Honours, we submit that the regulation will apply to transform – in the event that we were to lose the proceeding the consequence would be that the application would be transformed into an application for a temporary visa.

Now, I am reminded before I come to the last thing that I want to briefly say to your Honours that in writing in the submissions we were given this morning by our learned friends, on the last page there is a reference under the heading “More fundamental matters” to the proposition that – it seems to be a proposition that because your Honours made the order for mandamus in terms that referred to a Protection (Class XA) visa, and because that position would be retrospectively changed by the amending legislation – well, sorry, I withdraw that – their proposition appears to be that as a matter of construction your Honours should read down 2.08F so as to avoid it having an impact upon this application because it is before the Court and has been the subject of an order for mandamus from the Court.

In our submission, the Court’s order accurately reflected the factual and legal position as it existed when the order was made, but as a matter of law it is clear that Parliament can change that position, even in respect of a matter that is the subject of a pending application before the Court.  In that regard, while we have not given it to your Honours, could I give your Honours the citation to the AEU v General Manager of Fair Work Australia (2012) 246 CLR 117 at 141, paragraph 49, where in the joint judgment of your Honour the Chief Justice and Justices Crennan and Kiefel, your Honours said that the AEU ‑

correctly accepted that the Parliament could enact a law which would affect, or even render nugatory, pending proceedings in a court exercising federal jurisdiction ‑

and your Honours then refer to the BLF Case.  Your Honours, so those are the submissions about the impact of the provision on relief and it does appear to mean that the practical consequence of this proceeding is that it could not lead to anything other than the grant of a temporary visa in circumstances where the applicant already has a three‑year temporary visa by reason of an earlier and separate exercise of power made by the Minister under 195A.

HAYNE J:   Is it the position that if the Minister’s decision to grant those visas under 195A was a valid decision, that the grant of those visas engages provisions of the 2014 Act in a way that will yield the same outcome?

MR DONAGHUE:   That, your Honour, is a difficult question but I think that the answer is yes.  Certainly I can say this, and your Honours might – we have given your Honours the criteria for a temporary protection visa, the one inserted behind the first tab in the folder.  If your Honours go back to that - it is on page 37.  These are the criteria for making a valid application for the new Temporary Protection (Class XD) visa.  If your Honours go to page 37 which is in item 30 and look at clause (3)(d), one of the criteria for making a valid application for a temporary protection visa is that the person has held one of a number of classes of visa.

Now, specified there in (i) is the Temporary Protection (Class XD) visa itself, but if you go down a few items to item 3, there is reference to a Temporary (Humanitarian Concern) visa - that is the visa he currently holds, that the plaintiff currently holds.

HAYNE J:   The two visas that were issued, I think, are subclasses of items (ii) and (iii).

MR DONAGHUE:   That is right.  So the Temporary Safe Haven visa was granted and expired a short time later, and the three‑year visa was the Temporary (Humanitarian Concern) visa.

FRENCH CJ:   The ministerial decision stands in respect of those visas as a basis upon which the plaintiff could apply for a temporary protection visa.

MR DONAGHUE:   That appears to be the case and it seems that his position in that respect is the same as it would be if he now holds an XD visa, he would just be within a different paragraph of the relevant item.

HAYNE J:   Well, regulation 2.08F(2)(a)(ii) and (iii) would be engaged, would they not, page 45 of the print?

MR DONAGHUE:   Yes, they would.

HAYNE J:   What is the consequence of their engagement?

MR DONAGHUE:   Nothing, your Honour, because (c) is also engaged, because the applicant is an unauthorised maritime arrival.  So he is a prescribed applicant on any view and, indeed, for what it is worth, your Honours, we have undertaken a comparison as best we can of the two visas, the Temporary Protection (Class XD) visa and the existing visa, and there do not appear to be any material distinctions. 

There are two conditions on both.  There are reporting conditions.  The first is a reporting condition - the condition under the existing visa, the humanitarian concern visa, is to notify the change of address two working days in advance.  With the TPV it is to notify within 28 days after moving so it is slightly more generous reporting conditions under the TPV but not a major difference. 

Under the TPV there is a condition that means that the holder will not be entitled to the grant of a substantive visa other than a protection visa while the holder remains in Australia.  There is no equivalent condition for the humanitarian concern visa, so from that perspective the TPV might be slightly more restrictive.

FRENCH CJ:   You can get a renewal of a TPV, can you?

MR DONAGHUE:   You can apply for another one, as I understand it, yes, your Honour.

FRENCH CJ:   Yes, that appears to be the effect of (3)(d)(i).

MR DONAGHUE:   It does and, indeed, also of - the item 1 that I took your Honour to makes the criteria for a valid application one of the criteria.  Holding an existing TPV, that would not make sense if you cannot apply for renewal.  So from that point of view there is, we submit, a very large question as to the practical utility of any relief the Court could grant.  Related to that proposition there is, in our submission, a substantial question as to the ongoing public importance of the matter that is the subject of the special case.  I say that for this reason.  On my instructions, there have been two decisions made by the Minister in reliance on this criteria.

HAYNE J:   What does public importance matter?  This is litigation inter partes.  This is not a leave question.

MR DONAGHUE:   No, I accept that, your Honour, but in my submission at the point where this matter was before a single judge for directions about what should happen the Minister would undoubtedly have submitted that the matter should be remitted to the Federal Circuit Court for determination if the decision related to two persons only and had no ramifications for anyone else.  We are now in a situation where the Full Court of the High Court is convened to consider an application that will have no significance insofar as we can tell for anyone other than the litigant.

HAYNE J:   Where, despite the repeated success of the plaintiff at the last minute, the plaintiff, you say, should fail and that is not appropriate for this Court to determine.  On that subject, Mr Donaghue, I take it you could not resist an order that if you succeed you could not resist an order for costs, could you, in light of the history of this matter?

MR DONAGHUE:   Your Honour, if the law has changed in – let me start that again.  We do not concede that the regulation is invalid.  If the Court gets to a point where your Honours do not need to determine that question, then there will be no – the Court will never know which party would have succeeded in the event that the litigation had been determined. 

If our friends still want the litigation to be determined, in our submission, notwithstanding the submissions I have already made about the relief, in our submission, the appropriate place to do that is in the Federal Circuit Court and if we lose in that court, then costs should be ordered against us.  If we win, they should not be.  But the question of whether or not that dispute ever needs to be determined is really, in my submission, in our friend’s hands.

In our submission, it is at least a matter that warrants the consideration of your Honours as to whether, in the events that have happened, there is any longer utility in the Court examining these matters because, while it is undoubtedly the case that there are still national interest criteria for both permanent and temporary protection visas, if the matter arises again, if decisions are made on the basis of those criteria, the legal questions that will arise will be very different from the questions that would be litigated today if the matter proceeds, because the statutory context in which those questions fall to be determined will be profoundly different, including that Parliament will twice have itself inserted the criteria that are said to be repugnant to the Act.

So, while I do not submit that it is not open to your Honours to determine the matter, to do so will determine the dispute between the parties, but nothing more.

KIEFEL J:   What do you say - if you are correct in your construction of the new regulation, what do you say should occur today?

MR DONAGHUE:   In my submission, an order should be made revoking the order referring the special case to the Full Court and either the Full Court or a single justice should remit the matter to the Federal Circuit Court. 

KIEFEL J:   Could we proceed to do that when assent has not been given - assent has not been given.

MR DONAGHUE:   Well, your Honour, you could certainly revoke the order referring the special case to the Full Court on the basis that there is no reason to apprehend that there will be any difficulty with that step occurring.  It may be that your Honour is correct and that it would be more appropriate for no subsequent order to be made until assent is given and the Act commences.  But if that occurs, it would then be for our friends to determine how the matter should proceed.  Having said all of that, your Honours, if your Honours are of the view that it is appropriate for the matter to proceed, of course, we are prepared to do so.

FRENCH CJ:   Yes, thank you, Mr Donaghue.  Yes, Mr Lloyd.

MR LLOYD:   There are a number of matters raised there.  In relation to the idea that my client has nothing to achieve from the litigation, my friend [AUDIO FAILURE 10:54:24 – 10:54:56] albeit that he cannot go back obviously to his home country but he can in the circumstances get permission to leave, which is not possible under the current circumstances.  So that is one example of a difference between the visas.  My instructions are that my client would rather have a temporary protection visa with those facilities than stay on his current visa.

In relation to what my friend said about what is in the bundle at page – so perhaps to make that point clear on page 42 of my friend’s bundle there are now actually three conditions, I think, to the temporary protection visa and so one condition relates to leaving the country and when you can leave the country. 

In relation to what my friend said at page 37, this is a requirement for the validity of an application for a temporary protection visa.  The Court should not think that just because you come within (d) that means you can make a valid application.  If you cannot come within (d) you cannot make a valid application but, in any event, my client remained section 91AK barred by reason of that.  So he cannot actually make any application without the permission of the Minister under section 91AK which has not, so far as I am aware, been amended.  Section 91K, I should say.

FRENCH CJ:   That is because?

MR LLOYD:   That is because he holds a temporary safe – he held a Temporary Safe Haven visa and that means that there is a bar from him applying for any visa unless the Minister lifts the bar under 91L. 

FRENCH CJ:   Notwithstanding the fact that holding such a visa makes him a prescribed applicant for the purposes of 2.08F?

MR LLOYD:   That is so.  But the purpose of 2.08F is simply to convert existing applications for permanent visas into applications for temporary protection visas.  The Minister actually retains control under section 91K of anyone who has ever had a Temporary Safe Haven visa of them applying for any other visa.  They can only do so at the Minister’s discretion.  Except, my client, having had a valid application for a permanent protection visa would at least be able to have that considered or, if worst comes to worst, under regulation 2.08F, have it considered as an application for a temporary protection visa.  He does not need to have the 91K bar lifted, at least for his next visa.

So that is what we say in relation to the point that my client processes are futile.  My friend says there are only two other cases – sorry, one other case.  I accept that my friend’s client should know, although it is not what my instructions are, so I cannot take that any further.  In relation to what my friend said about section 47, I accept that for the purposes of the Act, one needs to look at the Act as a whole.  Maybe the best point to start is section 415.  My client had a decision made under section 65, which has never been held to be invalid, on 11 February 2013, and one sees that in the special case on page 2 of the court book in paragraph 10.

HAYNE J:   Who was that decision by?  A delegate?

MR LLOYD:   By a delegate of the Minister.  So then there is a review application ‑ ‑ ‑

HAYNE J:   You say that decision somehow still persists despite the subsequent history?

MR LLOYD:   I say – not that it persists as my friend says as an operative decision, but what I submit is that under regulation 2.08F, the question is whether there has been a decision made under section 65, and there has been a decision made under section 65 for my client, and under section 415, there is a power in the Refugee Review Tribunal under 415(2)(d) to set aside a decision, but that power was not exercised.  Rather, the power under 415(2)(c) was exercised to remit it for reconsideration, which, in the context of the Act, obliges the Minister to again make a fresh decision under section 65. 

So, whatever status the original decision has, I am not saying it is an operative decision but it was a decision made under section 65, so falls within (a).  So, my friend needs such decisions to be not included even though they are valid decisions.  So they want to exclude from paragraph (a) valid decisions which are not operative decisions, and also invalid decisions, they say to avoid some massive gap.

But while he may have a point about a so‑called massive gap in relation to what we submit about the word “quashes”, putting that aside, there is no massive gap whatsoever.  The scheme of the legislation, one asks, if you have made an invalid decision – my friend did not approach it in this way, but if you have made an invalid decision he says, well, no decision has been made under section 65 so under 3(a) of 2.08F the application is converted at the time of the commencement of the regulation.

If that is true, given that with the privative clause a decision can only be quashed under (b)(iii) and remitted for reconsideration to the Minister if the decision is invalid, when does it ever do anything?  In what circumstances does this Court quash a decision and remit it because if the Court quashes it and remits it then what (b) says is it happens at that point.  So does it happen at that point or does it happen when the regulation commences?  There are two different dates on their construction.  On our construction there is only one date and no hole. 

If there has been a decision, purported or otherwise, (a) is not engaged.  So that means when you go to the RRT, the RRT says, well, there has been a decision, I do not know if it is valid or not, I do not even have to look at that.  I will apply the law that was applying for the permanent protection visa, and then make a decision one way or the other on that law.  If it is an area where you cannot seek review in the RRT, which is obscure but it does happen in some areas, then you can go to a court and we say, again, the court looks at the case on the basis that the old law would apply only if the court sends it back for reconsideration then the conversion happens. 

So we say that there is not a big hole.  The only prospect of a big hole is if one can avoid (b)(iii) by not seeking a certiorari.  Of course, in every instance other than a case like my client’s case where he has an admission by the Minister that he considered every requirement and as a result, we say, gives rise to a duty to grant us a visa as opposed to a duty to reconsider, in every other case, which is probably every case this Court or any other court has looked at in Australia, what the person is asking the court to do is send it back to the Minister for reconsideration. 

So, on our construction, there is not a vast hole.  There is a hole which exceptionally my client gets through because, and quite appropriately, this Court made an order requiring something to be done and if we are right, as a result of what was done, that gave rise to a duty to grant the visa rather than a duty to reconsider, then it is quite appropriate that the new law would not apply to somebody who had already had a right to a visa crystallised. 

So we say that the matter should not be remitted, the matter should proceed and the Court should – if it accepts that, then in relation to our relief to the effect that we seek a mandamus that compels the grant of a visa, the duty under section 65 to grant a visa, having been satisfied of all the matters, then that is untouched.  If our alternative relief comes in, the Court will at that point have to consider whether “quashes” has the meaning my friend says or what we say, and that would no doubt be a useful thing given that there are probably going to be thousands of cases that look at this and so to know upfront would be not inappropriate.  So that is all I wish to say about that.  I do not know if your Honour wants me to sit down ‑ ‑ ‑

FRENCH CJ:   Thank you, Mr Lloyd.

HAYNE J:   Well, Mr Lloyd, before you sit down, it would assist me if you could answer without developing what is the best case you have to support the proposition that a peremptory mandamus would go in terms other than consider and determine according to law, that is, what is the best authority you have for the proposition that you would be entitled to a peremptory mandamus to grant?  I am not asking you to develop the argument, I simply would be assisted by knowing what the best case you have is.

MR LLOYD:   I would say – not that this is an excuse – but in light of my friends having conceded that that was an appropriate form of relief, I have not really focused upon – I mean, up until what happened this morning, in their submissions, they did not dispute that if we were successful in having the visa – having the criterion set aside that it would lead to the result that there should be a grant of a visa.  Now, admittedly, they say subject to a change in the law, but that is how they put it in their submissions.  Probably the best cases for us are Chen Shi Hai at 41 and the Commissioner ‑ ‑ ‑

HAYNE J:   Sorry, Chen Shi Hai at?

MR LLOYD:   At paragraph 41, and the Commissioner of State Revenue v Royal Insurance Australia ‑ ‑ ‑

FRENCH CJ:   Chen Shi Hai involved an AD(JR) – a direction back to the Tribunal to treat the applicant as having the status of a refugee, did it not?

MR LLOYD:   It had come from the Tribunal, but the effect of it ‑ ‑ ‑

FRENCH CJ:   It was not a final, but the necessary step ‑ ‑ ‑

MR LLOYD:   But it was not to send it back to be reconsidered ‑ ‑ ‑

FRENCH CJ:   No.

MR LLOYD:   It was – the Tribunal had misunderstood one of the criteria, and on its existing findings it was clear that the person should have been found to be a refugee.  If their misunderstanding of the law was correct, the High Court ultimately held that they had misunderstood the law, which meant that the order went back on the basis, as I recall, that the Tribunal was to treat the person as having been found to be a refugee, not on the basis that they reconsider it according to what was then the current law or changes in facts or anything else.

GAGELER J:   Mr Lloyd, can I just ask a question?  If regulation 2.08F does apply, either from its commencement or from the time of the making of an order of mandamus by this Court, do you still seek the alternative relief in the form of an order of mandamus directing the Minister to consider and determine the plaintiff’s application which would then be for a Temporary Protection (Class XD) visa?

MR LLOYD:   Yes, your Honour, because my client sees – if that is the best he can do, he sees that a TPV is better than the visa he has at the moment.

FRENCH CJ:   Just coming back to Justice Hayne’s question, R v Anderson; Ex parte Ipec‑Air Pty Limited (1965) 113 CLR 177 I think involved the issue of mandamus to compel the grant of an airline charter licence on the basis that all criteria were satisfied.

MR LLOYD:   Yes, in paragraph 39 of our submissions there are three cases:  the Commissioner of State Revenue, the Ipec‑Air Case and also a case Cunningham.  I think in the State Revenue Case, although my friends rely upon that as well, the order was an order to refund the overpaid amount.  We say here the duty is the duty to grant.  We are not complaining about – well, we do complain about the failure to make a lawful decision, but we say that in light of admissions that have been made, the Court need not simply order a reconsideration but should just order the grant of the visa.  May it please the Court.

FRENCH CJ:   The Court will adjourn to consider what course it should take.

AT 11.11 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.15 AM:

FRENCH CJ:   Mr Lloyd, you can proceed with the balance of your submissions.

MR LLOYD: Thank you, your Honour. Given that our matter is at least primarily an ultra vires case, I can dispense, at least until we get to the relief section, with the facts and just go to our various arguments of ultra vires. The first one involves sections 501(3) and 501C. Prior to 1998, there was no express power given by the Migration Act to refuse to grant a visa by reference to the national interest. 

In 1998, sections 501(3) and 501C were inserted into the Act. We contend that they conferred a constrained power upon the Minister personally to refuse to grant a visa in the national interest, the exercise of which is accompanied by special procedures and reporting mechanisms. So if I ask the Court to go to section 501(3), this is a power under paragraph (a) to “refuse to grant a visa to a person” – that is any visa – and it applies if two conditions are met. The first, in paragraph (c) is that:

the Minister reasonably suspects that the person does not pass the character test; and

(d)the Minister is satisfied that the refusal or cancellation is in the national interest.

I emphasise that because it is not that the denial of procedural fairness being in the national interest, it is the refusal of the grant of the visa that has to be in the national interest. These are preconditions to what is, we contend, a discretionary power – “the Minister may”. In this way the national interest is not alone sufficient to justify a refusal of a grant of a visa. The state of satisfaction described in section 501(3)(d) requires the Minister to consider national interest considerations that both favour and oppose the grant of a visa.

If after balancing – if there be conflicting considerations – those considerations and the balances in favour of refusal the Minister will at that point be satisfied that refusal is in the national interest.  In such a case, only if the character suspicion is also held can the Minister go on to consider whether or not to exercise the power. 

The Minister may decide, notwithstanding the adverse national interest matters, that cogent personal interest pertaining to the applicant nonetheless justifies the grant of a visa, that is, the Minister is not bound to refuse the visa, even if to do so would be in the national interest. In terms of procedure, the Minister is not obliged to accord procedural fairness – although of course he could – before making a decision under section 501(3). However, where such a decision is made, procedures in 501C are engaged.

So focusing upon the power to refuse a grant or a decision to refuse a grant of visa, that will enliven 501C by virtue of subsection (1)(a).  The Minister must then give, under subsection (3), the relevant information, give a notice of the decision and give an invitation to make representations.  The Minister then has a discretion again in subsection (4) to revoke the refusal.  Now, there are two preconditions for that.  He cannot revoke the refusal if not satisfied –

that the person passes the character test –

or, for that matter, if the person does not make representations.  So if those preconditions do not meet then the refusal decision stands.  If they do apply, the Minister can still decide not to revoke the decision.  A decision not to exercise the power - and that is the power in subsection (4).  If your Honours look in subsection (11), it is clear that there is a discretionary power, because it talks about:

A decision not to exercise the power conferred by subsection (4) –

which conceives that the power exists, but still not being exercised.  We say that it follows that there could be a case where the person satisfies the Minister that they pass the character test, but the national interest criterion are so high that the refusal is allowed to stand.  So this, contrary to the Minister’s submission, shows that this power can in fact apply to a person who is ultimately – does pass the character test but where the national interest considerations are overwhelming.

HAYNE J:   Sorry, what was that last proposition?

MR LLOYD:   The last proposition was that there can be a situation where the Minister is satisfied under (4)(b) that the person does pass the character test, but, nonetheless, having regard to the national interest considerations, exercises the discretion in subsection (4) not to revoke.  In such a case, you have a person who passes the character test but whose visa is still refused and then it would be on national interest grounds.

FRENCH CJ:   That is a very odd way to ‑ ‑ ‑

HAYNE J: I just do not follow it, Mr Lloyd. Section 501(3) has cumulative requirements. Is that right?

MR LLOYD:   Before that power was exercised, yes, your Honour.

HAYNE J:   What is the power under 501C which somehow cuts that down or alters that?

MR LLOYD: No, there are two separate powers. First of all, under 501(3)(c) all the Minister requires in relation to character is a reasonable suspicion that the person does not pass the character test. That gets them over that hurdle. If, as a result of a submission or representations that the person does pass the character test, section 501C(4) does not say the Minister must revoke if that happens. It says the Minister may revoke. The fact that that is discretionary is, we submit, the only way one can read in it light of subsection (11), which says:

A decision not to exercise the power –

So that presumes the power under subsection (4) exists.

FRENCH CJ:   The Minister might decide to stay with a refusal because other criteria were not satisfied and therefore not revoke the refusal based upon the character test.

MR LLOYD:   I accept that under 501C(4) the Minister is not limited to the national interest but certainly could.

FRENCH CJ:   But that might be an explanation of the existence of the discretion.

MR LLOYD:   That is so.  I accept that may be the case why there is a discretion but the point is that there can be decisions not to revoke even though the person passes the character test and that they can be under this scheme, at least in part (b) based upon the national interest.

BELL J:   All of this is in aid of establishing that under the Act the Minister has a power to revoke or not to revoke on the ground of the national interest in circumstances in which a person might pass the character test.  Is that the reason that you are developing ‑ ‑ ‑

MR LLOYD:   Yes, all we really need for our argument is the fact that the 501(3) power is discretionary.  We say it is a power which focuses upon refusal on the basis of the national interest.  The Minister could say “I think it is in the national interest to refuse, but notwithstanding that I suspect you are of bad character and I think it is in the national interest to refuse, you have eight children who are all very sick and they need you desperately and I am prepared to not refuse”. 

So you have the Minister saying “I think it is in the national interest to refuse but I am deciding not to refuse”. Under clause 866.226 the Minister or a delegate of the Minister would be compelled not to grant the visa on national interest grounds, on the same national interest grounds. So you have a discretionary power in 501(3) and a non‑discretionary criterion in 866.226. We say that there is – that the criterion, at least from the time of the making of section 501(3) is repugnant to it because it orders, detracts or varies the statutory scheme.

KIEFEL J:   Mr Lloyd, the national interest in 501(3)(d) arises out of and is connected with the character test, is it not?  You appear to treat it as a freestanding, more general requirement.  Is that right?

MR LLOYD:   We accept, as this Court has held and my friends submit, that national interest is a very broad, very broad concept.  I think this Court described it as being a political question in a case my friends cite.  That is in the context of 501(3) where ‑ ‑ ‑

KIEFEL J:   But 501C(4), it is not necessary to talk about the national interest separately there because if they pass the character test national interest drops away.  That would – if you read 501(3)(d) the national interest in that way, does it not make more sense of 501C(4)?

MR LLOYD:   Well, we submit that the national interest is as broad as the Minister contends it is.  In 501(3)(c) it is not limited to just character aspects or threat to the community because that is already part of the character test.  I am not saying it is excluded from the national interest because it is such a broad concept, but we say that ‑ ‑ ‑

KIEFEL J:   Well, it might still be a broad concept but it has to do with the particular applicant and the application of the character test.  Something in the character test tells you something about, informs the question of the national interest.

MR LLOYD:   Well, our submission is that the national interest in 501(3)(d) is not limited to character considerations but is a broad capacity, so the Minister could take that into account, or has to be satisfied of it and if he wanted to he could take the matters he took into account in relation to my client within the terms of that provision.

GAGELER J: Mr Lloyd, if we took the same approach to section 501(3)(c) as you would have us take to section 501(3)(d), would it follow that there could not be a valid criterion for the grant of a visa that a person pass any part of what is now the character test?

MR LLOYD:   Well, I think in M47 there is a criterion which I think is Public Interest Criterion 4001 which, in effect, brings the character test as a criterion for the grant of a visa.  I think in one or two of the judgments in M47 the Court queried the validity of that, and it may well be that it would follow that 501 is the place to deal with character and not other criteria as well.  We do not have to go that far, but it may well follow that a logical consequence is that this is what Parliament has said is when and how character should be taken into account in refusing visas, and not that there be other regulations dealing with, say, some lower character threshold than the statutory threshold.

FRENCH CJ:   Well, 501 feeds into 65(1), I think - in other words, that the Minister’s duty is not enlivened unless there has not been a refusal under 501 which ‑ ‑ ‑

MR LLOYD: Yes, under 501 – sorry, under section 65(1)(d) there is an issue of it being prevented by section 501. As I understand it, although the Minister obviously can exercise both powers, all of the delegates under section 65 are not delegates under 501. So in many instances there will be a delegate who makes a decision under 501 and then the section 65 delegate by reference to 65(1)(d) pays attention to that and it refuses the decision under section 65 by giving effect to the separate refusal decision.

I think we have referred in our list of authorities to a decision of Justice Lindgren which is SZLDG v The Minister 166 FCR 230. I will not take the Court to it but that is an example of a case where the section 65 delegate was not a section 501 delegate. The 501 delegate had made a decision and the section 65 delegate had taken the other criterion into account.

So before when your Honour the Chief Justice asked me could 501C(4) be dealing with maybe it is revoked, maybe it is not revoked because other criterion are not met, I accept that the Minister could be doing that but as a practical matter the 501 decisions are often separate and do not look at the other criteria.  They look at the character criteria and the national interest criteria alone.  I think that is what happened in the facts of this case.

FRENCH CJ:   Is national interest – I know it is a broad term but it is obviously connected to scope and purposes of the legislation at the very least - in the setting in which it is applied under 501(3)(d) does it have to be considered in its context as requiring consideration of the, if you like, gravity or the failure to pass the character test or circumstances associated with that and offsetting factors, in other words, to say contextual consideration for the national interest which does not put it at large so the Minister can just pull anything out of the sky, because that might suggest that there are contextual applications of the national interest such as this which might appear in the Act which, as it were, cannot be swallowed up by some criterion which makes them, in a sense, unnecessary.  In other words, it is a kind of abstraction from the general criterion which the Minister relied upon in this case rather than going to its validity.

MR LLOYD:   Yes, well, our submission is that the reference to national interest in 501(3)(d) has the same meaning as it does in 866.226, and the same matters can be considered in relation to matters – so, certainly, character matters can be considered.  We would contend that the Minister could have regard there to other matters as of the kind that he had regard to in the present case. 

Also, perhaps, something I did not note is that in relation to the power to revoke and not revoke under subsection (4) as to why maybe it is not intended to include not revoking because of some other criterion for the visa not being met, it was as a requirement for the Minister to report to Parliament in relation to that power, which is in subsection (8).  So, that allows a parliamentary oversight of both decisions to revoke that have been made in the national interest and also decisions that at least were part made in the national interest and the decision to not revoke.  So, it allows the Parliament to keep a kind of scrutiny of the Minister’s view of the national interest, none of which is replicated in 866.226.

So, the main point we say is, that 501(3) is a discretionary power, whereas clause 866.226 is not. Section 501(3) where national interest has to be considered has to be considered by the Minister personally, whereas that is not the case under 866.226, and where the Minister does rely on national interest matters, he has to report in every case, even if the person does not make representations, to Parliament to keep Parliament informed of the Minister’s use of the national interest refusal power. That also is not replicated when 866.226 applies.

So, for those reasons, we say that the existence of that – in a sense – the sole power of the Minister to refuse a visa on national interest grounds is constrained because he cannot do it, we say, unless there is also a character concern, if I put it that way.  National interest is not under the Act itself ever enough to refuse a visa, but when it, in conjunction with a character concern under 501(3)(c), is at play then the Minister has a discretion.  We say that clause 866.226 cannot stand and provide a non‑discretionary basis for refusing visas in the public interest in those circumstances.

That is what I propose to say about that first ground.  The second basis upon which we say that the condition is – sorry, the clause 866.226 – is invalid is because it varies or departs from the scheme for protection visas provided by sections 36, 501C and 501 of the Act principally, and there are other provisions. 

In this respect, we start by looking at – and certainly, if the Court would accept these submissions, we would say that what follows is that clause 866.226 was invalid from the time it was made and it has never been validated or authorised since.  So when the 1992 Reform Act commenced on 1 September 1994, the new section 36 created a statutory class of protection visas which was to be, and we would say still is, the principal mechanism by which Australia offers protection to persons who fall under the Refugee Convention.  In our principal submissions at paragraphs 43 to 45 we give citations from decisions of this Court that support that proposition.

Now, the powers to grant or refuse to grant protection visas to refugees provide a statutory scheme. First, section 36(2) prescribes a statutory criterion for the grant of a visa by reference to whether Australia has protection obligations in respect of a visa applicant. Secondly, that is limited by the ability that the Minister has to refuse to grant protection visas if, for example, there are concerns under Articles 32 and 33 of the Convention and they are sourced - again the Court has expressed slightly different views - but either in section 501C or section 501 of the Act. On the one hand you have a principle that refugees should have access to a visa and on the other hand there are statutory constraints upon that.

Thirdly, in considering whether the clause is repugnant to the Act, we say it is important that the criteria – these criteria in section 36(2) were entrenched in the Act.  It shows an intention by the Parliament that the protection that is provided by a visa of that kind for refugees is a matter of significance. 

Now, we accept that there is a general power – first of all we accept that section 36(2) is only a criterion for the visa.  We also accept that there is a general power in section 31(3) to prescribe additional criteria for visas including for the class of protection visas.  But that power, we say, cannot be exercised to prescribe criteria that alter, impair or detract from the provisions of the Act. 

The criterion stated in section 36(2) read with sections 501C and 501 and other provisions require that some matters not be prescribed for protection visas by the regulations. I give the Court two examples of where we say broad powers must give way to the specifics of section 36(2).

The first is there is an express power under the Act in relation to section 40(2)(a) which provides that regulations – 40(1) allows for the regulations to prescribe circumstances as being the circumstances required for the grant of a visa.  Under (2)(a) one such circumstance that expressed generally can be applied to a specified class of visas which, expressed in that way, in theory, could apply to protection visas is under (a) that the person “is outside Australia”.

FRENCH CJ:   I am not so sure it is a proxy for the cap as a proxy for a UMA regulation. 

MR LLOYD:   Perhaps that is a better way, your Honour.  We say it is not authorised by section 504.  In relation to my friend’s example of somebody who comes here on trumped up charges who, perhaps, there is trade or other implications which the Minister might need to address by not giving him a protection visa, one notes if he comes by boat the Minister can simply – he is a UMA and so he would not be entitled to apply for a protection visa. 

If, however, he comes not by boat but applies for any other kind of visa, so if he has a spouse visa or whatever, the Minister has no discretion there so the notion that this is needed in this area is not really explicable and also it carries with it the suggestion that it is a vehicle to allow some kind of disguised extradition by refusing on national interest grounds. 

In relation to the form of relief, we would say that the original mandamus which can be seen, for example, at G2 - although I think it is elsewhere, it is at F as well – commanded the Minister:

to consider and determine the Plaintiff’s application for a Protection (Class XA) visa -

Implicit in that are two steps.  One is considering a valid application and the second is, if satisfied of the relevant matters, to grant it.  Now, we say that he did consider a valid application, although he erred in respect of one criterion.  If that criterion is invalid and/or if he has no reason to rely upon it on the matters that are lawfully within the scope of that criterion, we say that the consideration has, in effect, been done and all that is left to do is the grant.  So the form of mandamus we want is, in effect, for the remaining part of the original relief and while I accept that does not follow precisely the 19th century practice, we do not want them to reconsider because they have considered and a duty has crystallised. 

If the court made an order for them to reconsider according to law, that would – especially in the circumstances of the law changing – defeat what we say is the substantive right, if we were correct, to the visa.  On 17 July, my client crystallised a substantive right to a visa.  All he wants now is that visa.  So we say that the form of relief we seek, even if it is unusual compared to the old practice, is well within the powers of this Court.

HAYNE J:   Well, could I suggest that the argument might be framed in this fashion – just to make sure that I understand it sufficiently.  On this branch of the argument, though you have several earlier branches of the argument, it would be that 866.226 cannot be engaged by reference to the plaintiff’s status as an unauthorised maritime arrival – that is step one.  Step two I think is, having regard to the reasons given by the Minister, no other answer was open at the time mandamus issued other than decision to grant. 

Step three I think may be, though this is one you have not articulated, that it may be important to recognise that this is a proceeding in the nature of enforcement of the final order previously issued by the court and that the process for enforcement legitimately looks back to the state of affairs that persisted or existed at the time of the grant of the final relief that was issued in settlement of the controversy between the parties, namely a writ of mandamus.

MR LLOYD:   Although I do not suggest we articulated it that clearly, but in the “further matters” section of the submissions we started with this morning we do refer to the fact that the proceeding has to be considered in the context that it is a proceeding about enforcing the first mandamus.  So that is the nature of the proceeding.  So that is why we are saying – we are trying to get the bit on our view of the substantive matter, that the remaining part of the duty that they were ordered to do, which is just to grant the visa.

HAYNE J:   The enforcement characteristic of this aspect of the proceeding would have been acutely present had you, for example, moved for attachment.

MR LLOYD:   Yes.

HAYNE J:   But there would be no doubt then of what you were doing – you were looking to enforce.

MR LLOYD:   Yes, I accept we have not done that.

HAYNE J:   I am not suggesting you should have either, Mr Lloyd, do not take that away from that.

MR LLOYD:   In relation to other matters my friend raised – in relation to M47, my friend puts that as a case in which one has to – says that the Act has to exhaustively deal with matters.  We say that the “order, detract or impair” formulation does not require that formula and we rely upon paragraphs 35 to 38 of our written submissions as to what the test is. 

In relation to 501C(4) and it being, I think – the Court and my friend referred to other cases which are no doubt Australian cases, but I think of it as a Julius v Bishop of Oxford point, that “may” means must. We say that section 501 ‑ ‑ ‑

HAYNE J:   In Finance Facilities 127 CLR 106, particularly at 134 to 135.

MR LLOYD: I accept the concept, but I say that section 501C(11), which talks about a decision not to exercise the power under subsection (4), it is implicitly suggested that (a) there is a power and that means the criteria have been met and yet you can decide not to exercise that power. So we say it is inconsistent with that view. My friend relies upon VWOK.  We note that the Minister relied upon that in M47.  It was found to be insufficient there and we say similarly here.

My friend fairly puts that our argument bears some similarities to an argument put in M47 and he says it was not accepted by the Court.  That is true but it was not rejected by a majority of the Court and so we say it remains open.  My friend says there are numerous provisions now that limit the idea so that not all refugees get protection visas.

We accept that that is the case and 46A is of course one of them.  Of course, our contention was as at 1994 it was unlawful and has never been validated.  None of those provisions that tend to detract from section 36 could possibly be said, and it is not suggested that it has validated the clause.  In any event, we note that all of these constraints, 46A and whatever, they are all done by statute, which is entirely consistent with our view that they could not validly and lawfully be done by regulation.

My friend then took the Court to the history of the national interest test and said, well, in 1991 there was a national interest test but what my friend does not say, and I am not suggesting for a moment he is trying to mislead the Court or anything, but the “once over lightly” has the risk because what that formula was, there was a formula there, is if you are a refugee, then you need to be a refugee and then there is a national interest exception.

In that context, where the legislation at that time had nothing in Articles 32 and 33, it may well be that the national interest exception at that time was directed to allow the Minister to refuse visas to people who were not entitled to protection under Articles 32 and 33.  Now, that function was perhaps necessary under that regime but under the 1994 regime, sections 500 and 501 fulfilled that function and that is why when we have talked in our submissions about the scheme, we have talked always about sections 36, 500 and 501.

In relation to the last argument, my friend submitted that the Minister could, as I understand it, lift the bar under section 46A even though he has a view that the national interest would preclude the grant of a visa just to allow a better mechanism for testing whether or not somebody has protection claims. 

We say there is nothing in the legislation that suggests that that is what is intended to allow people to apply for visas that you know you are not going to grant them just so they can access mechanisms that will not result in the grant of a visa.  In any event, it is quite clear in practice that once the sort of national interest idea was applicable, the delegate could and the RRT could just simply say it is not in the national interest to give somebody who is a UMA a visa.  So they do not have to look at whether the person is owed protection obligations in any event. 

So we say that is inconsistent and does not deal with the tension of the idea that you have one Minister saying it is in the public interest that you be able to apply – that you, an unauthorised maritime arrival who we generally do not want to encourage because it will encourage smugglers and will encourage boat trips, we are going to allow you to apply notwithstanding that, only at the end of the day to rely upon that exact same national interest to exclude you.  May it please the Court, they are our submissions.

FRENCH CJ:   Thank you, Mr Lloyd.  Mr Donaghue, just to ensure that we get the supplementary submission and response from Mr Lloyd in good time, I will bring you back to five days which brings you to the 14th, I think, and Mr Lloyd to five days after that, which brings him to the 19th. 

MR DONAGHUE:   Thank you, your Honour, so that is close of business on the 14th?

FRENCH CJ:   I am sorry, just check that.

HAYNE J:   I think you are working weekends at this rate, Mr Donaghue.

MR DONAGHUE:   I am sure we are but maybe we are filing weekends.

FRENCH CJ:   The 15th then.

MR DONAGHUE:   Yes, if the Court pleases.

FRENCH CJ:   The Court will reserve its decision.  The Court adjourns until 9.45 tomorrow morning for pronouncement of orders.

AT 3.58 PM THE MATTER WAS ADJOURNED