Plaintiff S297/2013 v. Minister for Immigration and Border Protection & Anor; Plaintiff M150 of 2013 by his Litigation Guardian Sister Brigid Marie Arthur v. Minister for Immigration and Border Protection & Anor

[2014] HCATrans 99

[2014] HCATrans 099

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

Office of the Registry
  Melbourne   No M150 of 2013

B e t w e e n -

PLAINTIFF M150 OF 2013 BY HIS LITIGATION GUARDIAN SISTER BRIGID MARIE ARTHUR

Plaintiff

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Defendant

COMMONWEALTH OF AUSTRALIA

Second Defendant

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

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 14 MAY 2014, AT 10.17.AM

Copyright in the High Court of Australia

____________________

MR S.B. LLOYD, SC:   Yes, your Honour.  I appear with MR J.B. KING for the plaintiff in the first of the matters.  (instructed by Fragomen)

MR R.M. NIALL, SC:   If the Court pleases, I appear with MR C.L. LENEHAN and MS. S.M. KEATING.for the plaintiff in the second matter.  (instructed by Allens Lawyers)

MR S.P. DONAGHUE, QC:   If it please the Court, I appear with my learned friend, MR P.D. HERZFELD, for both defendants in both matters.  (instructed by Australian Government Solicitor)

FRENCH CJ:   Thank you.  Yes, Mr Lloyd.

MR LLOYD:   If it is suitable to the Court, the order that we propose is that I will address on all three matters that arise in Plaintiff S297.  My friend, Mr Niall, will then address on such matters as he sees fit to address on in relation to M150, then my friend, Mr Donaghue, will address and then it will be ‑ ‑ ‑

FRENCH CJ:   Yes, thank you, Mr Lloyd.

MR LLOYD: ‑ ‑ ‑ such replies as are appropriate. In terms of order, I propose to deal with the matter in the orders indicated in the outline, broadly speaking, to deal first with the construction issue, which has two aspects to it. One is whether section 85 ever applied to protection visas – that is dealt with under 1.1 and 1.2, and 1.3 is, as it were, in the alternative, that if section 85 did once apply to protection visas we say that section 65A affected a repeal – an implied repeal – to the extent that it applies to protection visas. Then section 2 deals with the claim that the Minister was actuated by an improper purpose.

That obviously is premised upon the notion in the further alternative that there is a power to make the cap at all in respect of protection visas. Then, finally, there is a submission about the effect of section – or whether or not there has been compliance with section 85 in terms of the manner of making the determination and that turns upon the proper construction of section 56 of the Legislative Instruments Act.

Turning then to – perhaps if I deal with 1.1 and 1.2 of my outline together. We say that Subdivision AH which contains section 85 was inserted into the Migration Act to assist in the delivery of the annual migration program and those words are taken from the explanatory memorandum – the citation for which is in our submissions at 44. 

I should indicate that this morning we have provided a supplementary bundle entitled “Supplementary Bundle of Authorities”.  It contains things like the extrinsic material that we refer to in our submissions just really for the convenience of the Court.  It contains some other legislative provisions.  I will be taking the Court to two or three things in the bundle but, in part, it is there so that the matters referred to in footnotes and the like in our submissions are readily available to the Court.

So as we say, the purpose of Subdivision AH when it was introduced in 1992 was to assist in the delivery of something called the annual migration program.  That is not a legislative concept but it is a factual concept.  It is a program.  The notion of what that means – I am not trying at this point to construe it but just to identify what the purpose of Subdivision AH was.

We say that a program carries with it the idea that it is a governmental plan about who can and who cannot migrate to Australia and one can see that kind of meaning in documents such as, and to go to the special case book on page 209, this is an information paper of the Department of Immigration and Citizenship, and one sees, for example, a reference to a part of the Australian Migration Program, being the Special Humanitarian Program referred to at the bottom of page 209.  It says:

The SHP –

that is the Special Humanitarian Program –

has been linked numerically to the onshore protection component of the Program -

so it is linked, that means as a planning tool –

Successive governments have maintained this link as it enables planning and budgeting for government‑funded settlement services to properly meet the needs of humanitarian entrants –

Humanitarian entrants are people who are refugees outside of Australia or families of refugees inside Australia who have been brought over.  They are not protection visa applicants.  So they are the offshore aspect and it is not insignificant, we say, to note that the Department at least took the view at that point in time that there could not be a cap in relation to the onshore places and we say part of that is because at the very core of what Subdivision AH is about, which is about helping to assist in the delivery of the annual migration program, is to assist in controlling and regulating the numbers of the people Australia invites or permits to come to Australia, as opposed to protection visa applicants who are people who either come for different reasons or come without permission altogether.  It is at its inception a different concept.

If I just give a further reference, on page 244, which is in, I think, most recent annual report of the Department, there is a reference there more broadly to the migration programs for 2012‑2013 at lines 20-30 and, again, without reading it out, one sees that it is a program about planning, planning for people, so who is to be permitted to come to Australia.  Other extrinsic material supportive of the view that the cap was never intended to operate in respect of protection visas ‑ ‑ ‑

HAYNE J:   Well, what exactly are we using this extrinsic material to do, Mr Lloyd?

MR LLOYD:   Simply to identify what we say is the purpose of Subdivision AH.  I accept that if – I am not using it to construe a particular word, but we say that one should have regard to what the purpose is.  We ultimately say that it should be construed, even prior to 2005, so prior to the amendment of section 65A, or the insertion of section 65A, so as not to apply to protection visas, and that comes from a number of ways which I will develop, but at the moment it is simply to identify the purpose.

So, as opposed to the idea of people coming as part of a so‑called migration program, refugees as identified in section 36(2) in the Act – protection visas are available to people who are refugees, that is to say, persons to whom Australia has protection obligations who are in Australia and it is clear that they are in Australia whether or not they have arrived lawfully or otherwise, so that at least conceptually provides a basis in the legislation for seeing them as being not part of a program or a migration program.  Section 36 is, we say, part of a mechanism designed by the legislature to promote and to achieve Australia’s protection obligations under the Convention and in our submissions at paragraphs 34 to 37 we provide submissions and related authorities in support of that proposition which ‑ ‑ ‑

HAYNE J:   Well, can I understand the question to which this is directed? Section 85 provides the Minister with a power. Is that right?

MR LLOYD:   It does, yes, your Honour.

HAYNE J:   We are concerned with the ambit of the power?

MR LLOYD:   We are.

HAYNE J:   What then is the argument that you now advance in connection with discerning the limits of the power?  What are we going to this material external to the Act to demonstrate?  I do not say we cannot go to it, but I do need to know why we are going to it, for what purpose?

MR LLOYD: Our submission is that, even prior to section 65A, a cap of the kind implemented under section 85 would have a tendency to delay decision‑making and as a result of that, insofar as these applicants are in detention, the power then is a power to extend detention under the Act which we say was not clearly intended because section 196 allows for detention of people until one of three instances.

In relation to this provision which in effect only cuts on people who would otherwise get a visa, it operates to say for people who are in detention, you should remain in detention, not in order to be granted a visa, we think you are entitled to be granted a visa, but we do not want to grant it this financial year so we are going to defer you and you can just stay in detention beyond the point in time which we have had a look at your case. If we thought you were not a refugee, under the Act there is nothing at all under section 85 that would preclude the refusal to grant a visa and then the person could be removed from the country.

But if the Minister were to be satisfied that the person was a refugee and otherwise entitled to the visa, then the effect of the cap, if applied to protection visas, is that the person has to remain in detention not, we say, really for the grant of the visa under section 196(1)(c), but for such administrative purposes as suits the government as to the timing of its annual migration program.

We say that one would need very clear language to say that the Executive Government can make decisions which extend or prolong detention to people who it ultimately accepts are entitled to visas of the kind that they are compelled to be given by section 65 and we say that there is no clear language sufficient at that time to lead to that result.

CRENNAN J:  You are saying, are you not, just to aim for a simple expression of the point you are putting, that it is inconsistent with the Migration Act, insofar as it deals with protection obligations, to suspend processing in relation to applicants for protection visas under section 85. That is the point you are seeking to make, is it not?

MR LLOYD: That is so, your Honour. That is so but, of course, it is innate in the nature of section 85 that you can defer people and there is a power to do it but we say at the very least it should not extend - to be available to extend detention in that way and so for visas such as protection visas, which is the lion’s share of visa applicants in detention - I mean, a lot of people are in detention because they have been cancelled or they cannot be removed – we are not talking about those people, we are talking about people who are visa applicants. Most of those are protection visa applicants and we say ‑ ‑ ‑

CRENNAN J:   So you are talking about reading the power down so that the power does not extend to suspend processing in relation to applicants for protection visas, to read it down in relation to that class.

MR LLOYD:   That is so.

HAYNE J:   Well, that is an argument about text and structure not about extrinsic material.  It is an argument that is founded on an intersection between sections 65, 85 and 189, at least, but most likely other provisions as well.

MR LLOYD:   I accept that but, in my submission, the fact that, on my submission, the extrinsic material can be used to identify what the purpose of the amendments were it is, at least, supportive of the notion that it should be read down by reference to the impact on protection visa applicants.  In particular, it may well be that there are one or more other classes of visas that have similar features that a lot of people are in detention or are liable to be in detention.  But it is clear, we say, that protection visas are unusual in that extent because they are a class of visa which people who enter Australia unlawfully are entitled to apply for, unlike most other classes of visa.

They are a class of visa where groups in that class find – perhaps because of the first feature find a greater difficulty to get bridging visas because they have entered unlawfully and they not be eligible, or in the case of an unauthorised maritime arrival there is no power even to grant a bridging visa at all because they are barred from it subject to the Minister’s personal non‑compellable discretion.

HAYNE J:   Mr Lloyd, I should say to you that you should not assume that I necessarily accept that the question is one of reading‑down.  I would have thought you entered this maze by first attempting to construe 85 having regard to the subject matter, scope and purpose of the Act and that the power given by 85 is to be exercised, I would have thought, in accordance with criteria derived from subject matter, scope and purpose and questions of reading down would arise only having first undertaken that task of construction.

MR LLOYD: Well, perhaps I should turn to that. Section 85 and the related sections of Subdivision AH can be found in the plaintiff’s original annexure to the plaintiff’s submissions on page 5. Turning first on how it operates, section 85 is simply a power to be exercised or to be made “by notice in the Gazette” to:

determine the maximum number of:

(a)the visas of a specified class; or

(b)the visas of specified classes;

that may be granted in a specified financial year.

If I stop there, the determination itself does not have – it is not itself part of the law, we say, which is more relevant to my third point, but it does not have direct effect. One could not say, the determination – one would not cite the determination as a source of law, but it has effect, or has an effect, or one of its effects, by reason of section 86, and so section 86 says:

If:

(a)there is a determination of the maximum number . . . and

(b)the number of visas [has reached] the maximum number;

no more visas of the class or classes may be granted in the year.

So, section 86 is actually the law that prevents things being done, and one sees that, for example, from section 87, which refers to section 86 doing the preventing, it is not the determination that does the preventing, it is section 86 that does the preventing. It is even more clear in section 88. There is a separate effect of a determination which can be seen in section 89 and 90. Now, these provisions are not engaged by the cap being reached, they are engaged at an earlier stage. So taking section 89:

The fact that the Minister has neither granted nor refused to grant a visa of a class or classes to which a determination under section 85 applies –

it is enough that section 85 applies to the class of visa. The cap does not have to be reached. Then, there is a curious kind of deeming provision –

does not mean, for any purpose, that the Minister has failed to make a decision to grant or refuse to grant a visa.

Then, section 90 operates in a similar manner in relation to classes of visa, or in relation to situations where a determination applies in respect of a class.

FRENCH CJ:   This came in in 1992, did it not?  That might have been addressed to provisions of the AD(JR) Act perhaps.

MR LLOYD:   I think it was addressed to provisions of the earlier form of the Migration Act, but I think it has the same ‑ ‑ ‑

FRENCH CJ:   The grounds for review there, yes.

MR LLOYD:   ‑ ‑ ‑ it has substantially the same grounds of review.

FRENCH CJ:   Yes.

MR LLOYD: I think section 477 of the Migration Act was largely taken from section 6 or 7 of the AD(JR) Act. So I certainly accept that the explanation for the wording is to preclude a failure to grant or refuse to grant as being characterised as a failure to make a decision because failure to make a decision was the critical fact, or one of the critical facts, for section 477 to apply. Similarly, section 90 has the operation limit, it means that something is not unreasonably delayed, and that was another express language taken from 477 and also, I think, the AD(JR) Act.

FRENCH CJ:   The text does not impose this limitation, but is 85 to be read on the premise that the ministerial determination will be made in the financial year which is that to be specified, or is the Minister able to specify in a particular financial year ‑ make a determination in a particular financial year which is applicable to, say, subsequent financial years?  If the first is right, one can see it as a kind of management tweaking of a program.

MR LLOYD: I would not have thought, your Honour, that section 85 would say you could not make one in respect of, say, the next financial year, and I suppose then theoretically any number of future financial years. The purposes of sections 89 and 90 seem to be that there was an anticipation and certainly with respect to the Department no doubt a well imagined anticipation, that as soon as a cap was put in, even if there was a thousand left to be done, everyone who is on the list will be rushing forward with mandamus applications, saying, “do mine now, do mine now”. Section 90 is “you did that person before me but he applied after me so therefore you have to do mine now”. Sections 89 and 90 have a slightly different operation, but they are all directed towards a regulation of the temporal obligations of the Minister, and they impact upon section 65, in the sense that section 65 – and I am dealing here with the situation prior to section 65A, section 65 which applies to all visas, or at least all non‑bridging visas ‑ ‑ ‑

CRENNAN J:   By the way, 88 should be included as well, should it not, with 89 and 90, in terms of the point you are making, that these sections are directed or animated by judicial review considerations?

MR LLOYD:   I think 88 is slightly different in that it is directed to 86.  So 86 only applies once the cap has been reached, whereas 89 and 90 apply whether or not the cap has been reached and 88, in my submission, not that anything turns on it for my case, is designed to ensure that applications for visas can continue to be processed even if there is a cap.  Even if the limit has been reached – even though an applicant could not compel somebody because of 89 or 90 to make a decision, if the Minister wants to, he could go and make decisions and, to the extent that he is satisfied that someone is not a refugee or whatever the visa is, you do not meet the criteria, he can refuse them.  So, section 88 is saying, you can keep doing anything else.

CRENNAN J:   So how is that going to work?  You satisfy Article 1A, an applicant, and then an applicant satisfies the section 65 criteria and then what happens?  Everything stops for the moment, but ‑ ‑ ‑

MR LLOYD:   If the cap has been reached.  If the cap has not been reached, then we would say the Minister should grant the visa.

CRENNAN J:   I really meant, and I should have factored it in, when the cap has been reached.

MR LLOYD: Yes. So, when the cap has been reached, we say 86 then prevents. If the Minister was minded, after continuing to process the visa, if the Minister was minded to grant the visa, he could not grant it because he could not make the decision to grant it because of section 86.

HAYNE J:   That is the very question, Mr Lloyd.  That is the very question, whether 86 does intercept the duty under 65, and how it intersects with that duty.

MR LLOYD:   Yes, we say that the intersection is that it precludes the Minister from making a favourable decision to grant a visa.

HAYNE J:   That submission seems to me to lead inevitably to the demise of your case, Mr Lloyd.

MR LLOYD: Well, I hope not, your Honour. I accept that there is another plausible construction whereby you say section 85 only prevents the grant of the visa and not the decision‑making process at all and in that sense it is a constraint on section 67 of the Act, rather than 65. I mean on that view, we say we would equally - I have not yet finished developing why we are successful on the first view, but on the second view we would say, if your Honour was minded to take that view, that it would be inconsistent with the legislative purpose behind section 36.

HAYNE J:   The reason I put it to you in the fashion I did, Mr Lloyd – let there be no misunderstanding about this ‑ section 65 says the Minister must decide A or B. Section 85, and its associated provisions, is said to intersect with that duty by saying that the Minister must not decide to grant. There is, it seems to me, an available point of view that there is a tension between 65 and 85 and associated provisions. The question then becomes how that tension is resolved, which is why I kept suggesting to you that it was necessary to grapple with the text of the Act. If you say that 85 is the lead provision, your case fails. If 65 is the lead provision, then there is a question how you resolve the tension. Maybe the tension is not capable of resolution.

KIEFEL J: The Commonwealth says in fact that section 85 is the lead provision and 65 is subordinate to it, but whether or not that gives much weight to section 65A might be another matter.

MR LLOYD: Well, 65A comes in later and it is addressed in a sense in a different way. We accept that the intention behind section 85 is to address in a broad way applicable to ‑ at least nominally available subject to the submissions we are making, applicable to make a cap which affects the temporal obligations in relation to fulfilling section 65.

KIEFEL J:   The Commonwealth would say it affects all visas uniformly.  There is nothing in its words to suggest otherwise.  So you would have to look to set apart protection visas in their various aspects that differentiate them from other kinds of visas.  You started that but I am not sure that you concluded that aspect of your submissions.

MR LLOYD: No. Well, certainly we do seek to do that and we do it in part by the bits I have already taken the Court to in relation to section 36, also in part by reference to the fact that the Act has then and continues to lead to a result where some protection visa applicants are in detention, and we say that clear language would be required to construe section 85 as being designed to extend to a situation where it can be applied to visas to allow the Minister through executive determination to identify, in effect, a class of people who he accepts are eligible for the grant of a visa but he does not want to grant them the visa yet.

One thing further I should say about section 85 is that it is to be distinguished from section 39. Now, I think section 39 is not in this bundle but I think it might be in my friend’s bundle. No, actually it is not there either. Section 39 is another power to have a capping provision but when the cap is reached in section 39 all pending or outstanding applications are taken never to have been made. So that is a mechanism that is available but expressly not available in respect of protection visas.

HAYNE J:   Which is to say that there is a statutory resolution in section 39 of what otherwise appears to be a tension between a duty to grant or refuse and the imposition of a cap in certain cases.

MR LLOYD:   That is so.

HAYNE J:   An express statutory consideration which excludes protection visas.

MR LLOYD: That is so. But the reason why I point to it is because then in construing section 85, it needs to be construed solely as a power to defer the granting of a visa and not the power to just not grant visas of a class. You cannot put them off. You cannot set a cap whereby beyond the cap you just miss out. That is not possible under section 85. The only effect it can have is to defer until the next financial year the granting of the visa. So both the section 85 and 86 effects and the 89 and 90 effects are all temporal effects so that section 65 – absent any determination under section 85 – gives rise to an obligation to make a decision without unreasonable delay.

FRENCH CJ:   Can I just go to the text for a moment?  Section 65(1)(a)(iii) qualifies the duty imposed on the Minister to grant the visa by the condition that:

the grant of the visa is not prevented by . . . any other provision of this Act ‑ ‑ ‑

MR LLOYD:   Yes.

FRENCH CJ: Section 86 – just talking in terms of general application now, not in respect of protection visas – section 86 is another provision of the Act which says the grant of the visa is, in effect, prevented in a case where there has been a determination and the numbers are exceeded.

MR LLOYD: We would say that section 86 does not prevent it within the meaning of (1)(a)(iii) because if it had that effect then the Minister could just make a decision refusing the visa application.

FRENCH CJ:   That is if the limit is a criterion for refusal.  The fact that the thing exceeds the limit in a particular fashion is a criterion for refusal which is a sort of general operation of 39, subject to the exclusion of protection visas.

MR LLOYD: Yes, that is how section 39 works. There is a criterion which says that, but section 85 is not picked up by any criterion and if it was picked up by criteria it would come under (1)(a)(ii), we would say (1)(a)(iii), if (1)(a)(iii) picked up an operational cap under section 86, such that it was considered to prevent the grant of the visa in an absolute sense, then that would lead to (1)(b) being activated and the duty to refuse, whereas the intention of section 85 and 86 is simply to defer the grants of visas, and that is also clear in the extrinsic material. It is meant to allow for an orderly granting of them in the next financial year, not to lead to them being refused simply because there is a cap, if it had that operation.

The other constraints under section 40, 500A, 501 are, as it were, permanent constraints. If you are a person not of good character you do not ever get it and it should be refused, but if section 86 applies we would say that the prevention is not a prevention which precludes the granting of the visa forever but only until the following financial year.

GAGELER J:   Mr Lloyd, do you have section 31 of the Act to hand?

MR LLOYD:   I do, your Honour, yes.

GAGELER J:   I just wanted to ask you about a possible textual consideration.  If you look at section 31 it says:

There are to be prescribed classes of visas.

and it says –

As well as the prescribed classes, there are the classes provided for by –

certain sections which include section 36, and then it says –

The regulations may prescribe criteria for a visa or visas of a specified class –

Now, if you look then at section 85, the language of section 85 is to focus on a specific class. Now, one reading of that is it is simply the class specified by the Minister. Another possible reading, and I wanted to get your view on this, is that section 85 is focused on classes of visas specified by regulation and not all classes for which provision is made. That would take out of the operation of section 85 the various statutory classes to which reference is made in section 31. They would be left to be dealt with, if at all, by a cap under section 39 which excludes protection visas. Is that a possible reading?

MR LLOYD:   Well, as attracted as I am to it, your Honour, let me be frank with the Court.  If your Honours look at sections 34 and 35, they - I think 33 - expressly provide that certain subdivisions do not apply, one of which is AH.

GAGELER J:   Yes.

MR LLOYD:   So while I certainly accept that your Honour’s approach is a viable construction, I am sure my friend would say, well, if specified classes only means non‑statutory classes then why is it expressly excluded, and I do not have a particularly good answer to that.  I think I have canvassed what we say is the operation of 85 and we say there is a tension – we certainly accept there is a tension between 85 and 65 and that tension is particularly wrought in situations where a cap under 85 can lead to a prolongation of detention, and we say that that is particularly true with protection visas.  We do not necessarily say that it is only true with protection visas, but it is particularly true with protection visas, for various reasons I have identified why they are particularly susceptible to detention pending their visa applications.

We say that it would require clear language for section 85 to be construed as being able to be applied to any class of visa, such as protection visas, where there are people in detention because to do that then means that it is a power to keep people in detention not for the grant of the visa under section 196(1)(c), but for some administrative reason separate to that or, if it for the grant of the visa, it is for the grant of a visa not at the point in time where you could do it because you have made up your mind, but just because you have self‑imposed a cap and, on the Commonwealth view, there seems to be no limit to how long they can defer that and keep my client, who has been in detention, I think, for about two years, and almost a year after being accepted by the Refugee Review Tribunal to be a refugee, he still remains in detention, and on the Commonwealth approach to it, he can stay there as long as the Minister exercises the power under section 85 ‑ ‑ ‑

FRENCH CJ:   On the basis that the application is still pending and undecided.  It is being processed, as far as all processing steps can go, but it is still pending for decision.

MR LLOYD:   Yes, well, as far as we are aware no decision has been made; on the agreed facts, no decision has been made, but certainly no decision that we are ineligible has been made and so ‑ ‑ ‑

FRENCH CJ:   Well, there is nothing in the cap provisions that prevent the Minister proceeding to – in fact, he would still be obliged to proceed to refusal if the plaintiff has failed on one of the criterion for the grant of a visa.

MR LLOYD:   Indeed, indeed.

HAYNE J:   Just to be clear about it, a section 85 cap does not prevent grant of a visa; it prevents grant of a visa at a particular time, is that right?

MR LLOYD:   Yes.

HAYNE J:   Prevents grant in that financial year.

MR LLOYD:   In that financial year.

HAYNE J:   It does not prevent a grant absolutely.

MR LLOYD:   No.

HAYNE J:   The question presented by 65(1)(a)(iii) would be whether “prevent” means prevent at that time for the duration of the financial year, or prevent absolutely.

MR LLOYD:   We say it means prevent absolutely.

HAYNE J:   I understand that is your submission.  Unless the Minister asserts that 85 engages 65 in a fashion requiring refusal because of 65(1)(a)(iii), your client remains in a netherworld with a valid application which the Minister is bound to determine but which has not been determined.

MR LLOYD:   That is true.  If section 65(1)(a)(iii) were to be engaged – and to be fair I do not understand the Commonwealth to say that it is, but if it were to be engaged that would mean for all visas but relevantly here protection visas.  By making a cap, at least once it is met, you can then say no to the grant of every pending application.  You do not even have to look at them.  You just say, “Well, there’s a cap.  I have cleared the backlog of 30,000”, and then of course because a determination has been made, it is worse even than section 39, not that that applies to protection visas, but you are there at least deemed not to have made an application.  Here you would have made an application, it would have been refused, and then you are barred by section 48A and B from ever putting in another application for a protection visa without the Minister’s personal say so.

FRENCH CJ:   Section 39 only operates, does it not, where there has been a regulation incorporating a criterion of the class described in 39?

MR LLOYD:   That is so.  Presumably the Minister would not attempt to do a cap unless the regulations sort of gave effect to that provision.

CRENNAN J: Is there any regulation or any provision anywhere which deals with the effect of having extant protection visas, the grant of which has been deferred because of a cap under section 85? Is there going to be a queue or something at the end of the day, in the next financial year? How will the body of extant protection visas then fall to be dealt with? Is there anything that covers that contingency?

HAYNE J:   Section 51 gives the power to the Minister to decide in such order as the Minister sees fit.

MR LLOYD:   Yes, and there is also section 91:

If a determination under section 85 applies, or has applied, to visas of a class or classes, the Minister may consider or, subject to section 86, dispose of outstanding and further applications for such visas in such order as he or she considers appropriate.

CRENNAN J:   Nothing further?  That is what I am asking.

MR LLOYD:   No.

CRENNAN J:   No regulation, nothing that has been specifically directed to these provisions which we have under consideration?

MR LLOYD:   No.  We apprehend that in the circumstances of the present case, and this is to step over into the improper purpose argument, that the intention of the current Minister and government is to never give a permanent protection visa to my client or any other unauthorised maritime arrival.  That is what they have repeatedly said they will never do.  So we apprehend that they will either hope to change the law when the Parliament changes or, we do not know, maybe another cap until they can change the law.  That seems to be the plan.  I will come to the facts behind that, or maybe different regulations. 

There is some suggestion in the material which I will take the Court to, is that if the Court were to find in my client’s favour, they would repeal the criteria for 866 and query what effect that would have but in a document I will come to in due course the Court will see that that is part of the strategic planning of the Minister to stop people like my client getting a protection visa and to foreshadow our improper purpose case, we say section 85 is not available for the purpose.

It is outside the purposes of the Act or foreign to the purpose of the Act to allow it to be used, not to give effect to something in the Act, but to defeat the Act, to sort of say, well, the Act requires my client to be given, assuming that we were eligible, a protection visa but because the Minister of the day does not want that to happen he can use this power to defer indefinitely complying with the obligation under section 65 and 65A to make such a decision with a view to changing it so that my client will never get the visa for which he has applied and we say that is outside the purposes of section 85 because it is a power to delay until the next financial year the grant. It is not a power designed to prevent somebody for all time getting the visa they have applied for.

So I have indicated why we say protection visas are particularly susceptible. We note that there are many classes of visa that you can only apply for from abroad, so section 85 cap on those classes of visa would not involve any prolongation of detention because the people are not even here and then even for many other classes of visa, where you can apply for them here, there is generous availability of bridging visas for such people such that, at least for most other classes of visa, the same problem with a cap amounting to sort of an unconfined prolongation of detention would not arise.

So we say that this reveals a tension between the object in section 36 that Australia should meet its protection obligations to allow people who are refugees to be protected in Australia out of detention, not subject with the threat of removal. As against that, one has section 85 which if it were to be able to apply in the context of section 36, would completely undermine that legislative policy. We say, that the facilitation of the annual migration program was not intended to authorise the promulgation of detention into future financial years at the largely unconstrained discretion of the Minister.

That is all I wish to say about 1.1 and 1.2. I will move now to 1.3 which is in the alternative because obviously if our first submissions are accepted then section 65A does not impliedly repeal anything because it never applied. So my submissions henceforth should be understood as being in the alternative in that way. So, one looks at the position prior to section 65A. As I have indicated, there is a duty to consider a valid application. That is in section 47. We say that the Minister could not unreasonably delay – this is even prior to section 65A could not unreasonably delay making a decision to grant or refuse to grant any visa to which section 65 applied.

We say that the judgment of this Court in Shahi [2011] HCA 52 which is in the supplementary bundle of authorities. The relevant bit of it is on page 125 of that bundle at paragraph 28 – is broadly indicative of the notion that section 47(1) in combination with section 65 gives rise to a duty at least to not unreasonably delay in the making of a grant of any visa, not just protection visas.

So we say also Subdivision AH is directed only to temporal issues.  It is not about whether a visa could be granted but only whether as to when it would be granted.  Moving then on to paragraphs (b) and (c) of my 1.3, we have set out extrinsic material at paragraphs 60 and 61 again to identify the purpose of the amendment.  Some of that extrinsic material can be found in the supplementary bundle.

The legislation itself – and perhaps it is convenient to start with that – is on page 17. So one sees Schedule 1 and it contains four sections, or amendments to four sections, or four new sections, I suppose. The 65A which we say creates a special duty going to an obligation to make decisions under section 65 within a specified 90 day time period. We say that is a new duty which is intended to govern the time element of decision‑making in respect of protection visas, we say to the exclusion of anything inconsistent that was in, or otherwise implied, in section 65 and also to the exclusion of any impact that section 85 has on section 65.

It was, as the extrinsic materials indicate, a response to a perception and, indeed, quite a fair perception, that decision‑making on protection visas was taking inordinately long periods and that that was particularly problematic at a time of - continuing time of mandatory detention for many people who were subject to that.  So section 65A is meant to be a response designed to ensure that people were not kept in detention indefinitely but, in fact, have decisions made quickly. 

It was seen to be of sufficient significance that section 91Y was also enacted.  I will not go through that in detail, but the essence of it is the Secretary is required, every four months I think it is, to provide a report in relation to the reporting period and the report has to indicate, in essence, where the Minister, which presumably means the Minister’s delegates, has failed to meet the 90‑day time limit.  The report under subsection (6) has to give the reasons why that was done and then the Minister has to cause the report to be tabled in Parliament and in this way there is a direct mechanism for parliamentary oversight of the adequacy of the time of protection visa decision‑making.

Then 414A, which is over on page 20, has a similar obligation on the Refugee Review Tribunal and 440A had a similar reporting requirement imposed upon the principal member of that Tribunal to again report on any failures, and each case has to be reported on, the reasons for each case.  All of that - we say these provisions looked at both individually and together - shows a very strong indication that the purpose of the provisions was to provide a special regime for compelling the Minister to make quick decisions. 

BELL J:   Can I just take up one matter in relation to 91Y?  Would it be right that the obligations that that section imposes would continue to apply notwithstanding if 85 applies to protection visas, then under 89 one sees that the fact that the Minister has neither granted nor refused to grant does not amount to a failure, but nonetheless, for the purposes of the reporting obligation it remains under subparagraph (5)(b)(ii) that:

the Minister has not made a decision under section 65 before or during the reporting period, and the decision period –

which is dated from the date of the application for the succeeding 90 days, the decision period has come to an end, so one is left with the circumstance that if 85 applies to protection visas you have these mandatory reporting obligations.

MR LLOYD:   Yes, and then so the Minister orders, I suppose the Secretary and the Principal Member would then presumably say well, we did not make any decisions for these 4,000 cases because the Minister asked us not to, or the Minister did a determination of his own discretion, which is not a legislative instrument, and that is why we did not do it. You would have to do it for each case, which seems strange if it was intended that section 85 apply. We say that is just another reason for thinking it does not.

Further - I do not put too much on this, but I note that insofar as section 89 and section 90 are expressed in terms of what the Minister – the fact that the Minister did something or not do something, sort of takes away the duty to consider, that is not in terms that extends to the RRT. So that would leave a situation of the RRT not having the protection that the Minister has which is consistent with our view that (a) no one ever thought that section 85 ever applied to protection visas but if they did – well, not that they did – but, if it did, then nonetheless, section 65A and these related provisions were meant to be a freestanding set of provisions not constrained by section 85.

KIEFEL J:   Your reliance upon section 65A and the other provisions as freestanding, and focusing upon them – your choice seems to be to see it operating to – as you say – give an implied repeal, rather than as viewing section 65A as recognising that the statutory scheme recognises protection visas as having distinct effects so that the temporal requirements of 65A are meant to recognise and reinforce the problems with detention and the other matters that are particular to protection visas.  That is to say, your argument appears to drift away from a holistic notion of the statutory scheme when you focus on this implied repeal argument.

MR LLOYD:   Well, I suppose it is necessary in the case of an implied repeal for the Court to be satisfied (a) that there is a contrariety between the two provisions, and that one, the later, should be seen to dominate the earlier one, rather than trying to read them – and concluding that they cannot be read adequately together ‑ ‑ ‑

KIEFEL J:   But it denies reading it as a whole.   I mean, that is an alternative approach which should be undertaken, should it not?

MR LLOYD:   If it can be read as a whole together, then I accept that that goes against the implied repeal.  We say it cannot be if the object of the legislation, of section 65A, is to place a control upon the Minister to ensure that the Minister is making visa decisions quickly and at the exact same time to leave – and to have reporting requirements, but at the exact same time as that, to leave with the Minister power to put on a cap which immediately, if this is – as we understand it, this is a Commonwealth case which would then, putting on the cap by reason of section 89, would immediately dispel that obligation.

KIEFEL J:   You have an inconsistency.  The question is how then to construe the two provisions to determine the inconsistency.

MR LLOYD:   That is true.  We say they cannot be read together in a sensible way ‑ ‑ ‑

KIEFEL J: Well, it means section 85 may not be able to be read literally, as applying to all classes.

MR LLOYD:   Indeed, that would be ‑ ‑ ‑

KIEFEL J:   One approach.

MR LLOYD:   That would be ‑ I suppose, a different way of avoiding implied repeal was reading class down but in a sense that is – well, maybe I am wrong in this.  I had apprehended that was a species of an implied repeal that previously did apply to protection visas and then post‑section 65A it does not apply to protection visas.  In effect, the effect of it has been impliedly repealed.

KIEFEL J: We are getting hung up on temporality at various levels I think. But does not section 65A give some support for a construction which sees section 85 as not read literally or, as some would say, in its ordinary terms?

MR LLOYD: Yes, certainly. To the extent that that is an alternative way of reading section 85 as not extending, at least post‑section 65A, to protection visas, we would embrace that. We do not necessarily have to call it implied repeal. It can just be a way of reading it down by reference to an implication ‑ ‑ ‑

KIEFEL J:   Or reading it.

MR LLOYD:   ‑ ‑ ‑ or reading it.  The ambit of the scope for contrariety applies in two respects.  One is section 65A we say creates an enforceable obligation to make a decision within 90 days and I think we have in our footnotes referred to a decision of Justice Lindgren, SZLDG, I think it is, in which his Honour gave effect to that in the circumstances of that case, so it creates an enforceable duty and a duty to do it at a particular time or within a particular timeframe.

Then that is inconsistent with two aspects of a cap under section 85. It is inconsistent with section 89 which, once a cap is made, operates to make it not enforceable; that is the intention. It itself might have difficulties after section 477 has been repealed as to whether or not the deemed fact in section 89 engages the relief of mandamus in exactly the way as it engaged the specific statutory section 477 ground, but, even assuming against myself that it does still continue to work, then there is clear contrariety there just from the existence of the cap, so from day one of the cap. Then, of course, there is a second tier of contrariety once the cap bites and section 86 precludes the granting of a visa during that financial year.

FRENCH CJ:   Do you accept that the obligation imposed by section 65A rests upon the premise that there is an obligation to make a decision under section 65?

MR LLOYD: Well, we say section 65A is a new and additional and separate obligation. There is an obligation under section 47 ‑ ‑ ‑

FRENCH CJ:   I am just looking at the words:

the Minister must make a decision under section 65 within 90 days –

MR LLOYD: Yes. So section 65 contains, as it were, a duty – well, there is a combination. Section 47 is an obligation to consider an application. Section 65, in a sense, comes in after considering the application, there is an obligation, depending upon the outcome of that consideration which is kind of the decision assumed in the question, then the duty is to do one of the two things, and 65A refers to that as being a decision – and we are not saying that is wrong – but to that extent, what 65A is saying is that for protection visa applications, there is a new duty in relation to that as to when it must be done. We do take issue with the Commonwealth.

Their main answer to our case is to say section 65A is really just – they read it as if section 65 says you need to make a decision within the prescribed time and 65A is just the prescribed time, as if it is not itself a duty.  We say that is not right, section 65A is a freestanding duty, it does not hang off the duty in 65 to a certain extent, it might override and supplant the duty or replace the duty in section 65.

HAYNE J:   Does not the text of section 39 presuppose that 65 creates a duty?  Does not 39 work by disengaging the duty?  It disengages by deeming there not to be a valid application.

MR LLOYD: It is certainly premised upon the idea that once the cap is reached the application is taken not to have been made, which would then undermine the obligations in section 47, which lead to the obligations in section 65.

HAYNE J:   The point, I thought, that lay at the root of your submissions, but do correct me if I am wrong, is that the Minister’s argument amounts to the proposition that there can be dispensation from what would otherwise be the statutory obligation of section 65 by promulgation of a cap without there being the express disengagement of duty provided for by 39.

MR LLOYD:   I think that is an aspect of what they say but maybe even if they do not go that far, they, as we apprehend their argument, say that section 65 is where the duty to consider occurs and 65A is, as it were, merely a supplement to 65 and because they say 65 is subject to 85, then it follows that 65A, being a mere sort of subsidiary obligation to 65, must also be subject to what they call the dominant provision of 85. 

We do not accept that.  We say irrespective of the relationship at this stage of my argument between 65 and 85, 65A was meant to override whatever went before and create a new bundle of obligations in relation to the temporal requirements for making protection visa decisions and they are meant to prevail over whatever was before it.  Now, that is not to say that it is not able to be read to together with section 65A being the dominant provision, but we certainly say it is the dominant, special provision in relation to protection visas.

One way of conceiving it is that the Commonwealth, for obvious reasons, do not put it this way, but in a sense what they ask for is that the words “subject to Subdivision AH” be inserted into section 65A and we say that there is no justification for that, especially when one has regard to two things.  If one has regard to the principle of legality where a concern here is people in detention, and that was one of the concerns of 65A, one would not read in readily words which would tend to promote the ability of the Minister to prolong detention without clear language and it does not say “subject to Subdivision AH”, but also it would not give effect to what we say was the purpose of section 65A. 

It would, after Parliament going to the effort of trying to constrain the Minister as to his protection visa time making, it then says, but of course, if you want to put a cap on and as soon as you put a cap on that whole constraint disappears because under section 89, so they say, you cannot be enforced so the enforceable requirement is then entirely at the Minister’s discretion.  We say that would undermine the purpose of the amendments and should not be construed in that way.

That is all I wanted to say about topic 1 on the outline of oral argument.  I started to foreshadow topic 2 which is about the improper purpose.  This issue, unlike the last one, does have a factual element to it.  I suppose a question is does one start with the facts or start with the law.  I apprehend it might be more of assistance to the Court if I explain our legal argument and then go to the facts to see if we can make out what we say happened. 

We say that the ambit of the power on section 85 is limited by the subject matter, scope and purpose of the Act and it must be exercised in accordance with the regulations. So having regard to such constraints, one identifies the following provisions of the Act as being contextually relevant. The first one is that unauthorised maritime arrivals must be detained upon arrival. That is section 189(3).

The next is unauthorised maritime arrivals can only apply for protection visas if the Minister has personally determined that it is in the public interest that the unauthorised maritime arrival be permitted to make such an application; that is section 46A.  My client, of course, is a person who the then Minister thought it was in the public interest to be able to make an application for a protection visa being a permanent protection visa. 

The third dot point:  unauthorised maritime arrivals who have applied for protection visas must be granted the visa if the Minister is satisfied that section 36(2) and other lawful criteria are met.  So that is part of the legislative context of the subject matter, scope and purpose - section 65A, the 90‑day limit.  I should again this argument is ultimately in the alternative to the last two arguments because, obviously, if you could make a cap at all in relation to protection visas, we do not get here.  The next dot point is the visa granted must be a permanent visa.  The regulations provide that the protection visa is a permanent visa.  Section 498(1) provides that – and I do not think this is actually in any of the bundles – but it provides that:

The powers conferred by or under this Act shall be exercised in accordance with any applicable regulations under this Act.

So one of the applicable regulations is the regulation that makes protection visas permanent.  The next consideration is that unauthorised maritime arrivals who are granted visas must be released from detention and then we continue to say it is relevant that the Minister has no power to impose a cap that has the effect, the same effect that section 39 can have because it is expressly excluded from protection visas and in an Anthony Hordern kind of way one would not construe it being within a sort of proper exercise of section 85 to be able to do that which is expressly denied under section 39.

Now, having regard to this, we contend that section 65 is principally a power to defer the grant of visas, that is, it is not a power to achieve the outcome that visa applicants will never be granted the visas for which they applied.  Yet, we contend that the Minister’s and the government’s unambiguous objective is that unauthorised maritime arrivals such as my client, who are otherwise eligible for permanent protection visas, should not be granted them, and to be clear, that is not ever, that is what we say is the driving purpose.  The March 2014 cap, which I will take the Court to shortly, was made as part of a matrix of actions designed to delay decision‑making for what I might call “UMAs”, the UMAs are unauthorised maritime arrivals, until the law can be changed so that they can never get permanent protection visas.

What I will take the Court to shortly is an instance where the Minister twice caused regulations to be made with a view to that end, that is, to prevent UMAs from getting permanent protection visas. They were twice disallowed and the section 85 caps were made by the Minister to ensure, we say, that in the absence of legislative reform no protection visas would be granted, and so we contend that section 85, in short, is a power to delay but it is not a power to delay until the law can be changed.

It is not within the subject matter, scope and the purpose of the Act that a power can be changed until either the Act or the regulations can be effectively changed by the government of the day. The Minister is bound to grant the visas that the Parliament has specified and continues to defend and it is, in effect, in abuse of that power or outside the scope of the Act to use section 85 to try and delay things until he has an opportunity to change the law.

KEANE J:   Mr Lloyd, it may not make a difference to your submission, but to be accurate about this, paragraph 2.3 where you say:

as part of a matrix of actions designed to delay decision‑making –

section 85, section 86 do not delay decision‑making to refuse an application, they only delay a decision to grant where, on the merits, that is the decision that would be made. Is that right?

MR LLOYD: Well, yes and no. Ultimately when the cap bites, and section 86 is there, it would not preclude the Minister from making a decision to refuse, but, of course, we say that supports us because that shows the only thing that it does is prevent the grant, it does not prevent other things.

KEANE J:   It only prevents the exercise of a decision where, on the merits of the application, it should be granted.

MR LLOYD:   That so, but it does do also what section 89 says, which I accept is a strangely drafted provision, but it seems clearly to be intended to have the effect that as soon as the cap is made – that is, as soon as the determination is made, even before the cap is met, it means that the Minister can no longer be compelled to consider whether or not – so it does have a broader aspect under section 89 because ‑ ‑ ‑

KEANE J:   But that operation of section 89, so far as protection visas are concerned, that operation of section 89 seems to be distinctly inconsistent with the requirement of 65A, on any view, which is that under 65A, in respect of protection visas, as opposed to all the other kinds of classes of visa, there has to be a decision.

MR LLOYD:   We fully embrace that ‑ ‑ ‑

KEANE J:   On the merits, a decision on the merits.

MR LLOYD: Yes, we absolutely say that is true and that is why we say we should win on one of our two anterior arguments. If, however, the Court is against us on one of those arguments, that means the Court must have accepted that section 85 is capable of applying to protection visas and so we are saying even if it is capable of applying to protection visas, it is outside the proper purpose of the Act for it to be applied for the purposes that the Minister wanted to apply it for, which is to prevent UMAs from ever getting visas. He is not trying to delay them, he wants to delay them, but only long enough to change the law so my client never gets one. We say that is not – even if section 85 could, for other reasons, apply to protection visa applicants, it cannot apply for the purpose, not of advancing the Act, but of allowing the Act to be changed so that you do not have to advance the Act.

CRENNAN J: You do not even have to go to purposes in relation to this argument, do you, because if section 85 does apply to protection visas, and you look at the possible operation of section 85, section 51 and section 91, does not the possibility arise that notwithstanding that a particular person has qualified for protection under section 36(2), and under criteria under section 65, the Minister will be empowered never to make a decision in relation to that person just by reason of the way in which those sections of the Act may operate together. In other words, a cap every year, full power to decide in what order, extent, applications for protection visas will be dealt with.

MR LLOYD:   Yes, so that he can always give the visas to the non‑UMA people and continue with a cap that ultimately bites once he has no other mechanism.  What I will show in the history of it is ‑ ‑ ‑

CRENNAN J: I am just putting to you in relation to any individual person who has an extant protection visa application as at the moment when the cap bites, when you look at the whole scheme in relation to the Minister making decisions, insofar as their applications are extant, then you can look at section 51, section 91, so all I am putting to you is that without even talking about purposes or looking at what has been said, you can tell from the text and structure of the Act that if section 85 applies to protection visas, whatever duties there are to decide, once deferred, may, I think, as Justice Hayne put to you, the applicant is in a netherworld where ‑ ‑ ‑

MR LLOYD:   That is so.

FRENCH CJ:   You have stated the improper purpose in general terms by reference to unauthorised maritime arrivals.  Are the improper purposes on which you rely as formulated in paragraph 66 of the amended written statement of claim?  I am not suggesting it is substantively different, but I just wanted to make sure that that is the precise formulation, or as precise a formulation as you advance of those purposes.

MR LLOYD:   Probably it is slightly refined, I do not think different in substance.  The nub of b. there was to:

avoid forming a state of satisfaction . . . in respect of valid applications for Protection (Class XA subclass 866) visas by unauthorised maritime arrivals including the plaintiff, unless and until such time as the law may be amended –

So what I am trying to say there is that it is not being used simply to defer, but it is being used to defer with a view to having the Act changed or the regulations changed.

FRENCH CJ:   To bring in temporary protection visas, for example?

MR LLOYD: To bring in temporary protection visas, and we say that if there was something saying we are doing it because – I do not know, I am not sure what justification there would be for a cap but, say, money was a reason – on this assumption, well, I am here on the assumption that section 85 is able to apply to protection visas, maybe there could be a legitimate reason but this, we say, is foreign to the Act in the relevant sense.

GAGELER J:   So precisely what inference of fact do you want us to draw?  It really should be formulated quite precisely I think.

MR LLOYD:   Yes.  Well, we would say that the Minister had the purposes specified in section 66.  Now, interestingly, we plead the same purpose in relation to the first cap.

GAGELER J:   Paragraph 44?

MR LLOYD: Paragraph 44, and that was admitted in relation to the first cap, but not admitted in relation to the second cap. So we say that that is the purpose and maybe my explanation is simply to say why that purpose is unlawful is because the power is to defer granting visas. It is not a power to delay them to a point in time where the law can be changed so that you will never grant them. The whole premise of section 85 is that you will grant them but not this year; whereas we say the purpose of them is to delay until such a time as the law can be changed.

To that extent, in trying to sort of further explain why we say it is foreign to the Act, we say that section 85 does not authorise a cap which is designed to defeat the legislative will of the Parliament contained in the Act and the regulations, including when enforced by disallowance, namely where the Parliament and the current law requires permanent visas to be granted to protection visa applicants and it is being used to, in conjunction with regulations, to try and defeat that obligation to grant permanent visas. We also say section 85 does not authorise an exercise of power, in effect, to undo the permissions granted under section 46A so as to ensure that the UMAs do not get the benefit of the applications they were permitted to make.

So you have a situation where under section 46A one minister comes along and says, I think it is in the public interest that you be able, you, as a UMA, be able to apply for a protection visa, and what this minister is trying to do is, in effect, to set aside all of those decisions and say, none of those people should get permanent protection visas. And we say, fair enough, if he has the capacity to get Parliament on his side that would be one thing, but he does not, at least not yet, and it is a breach, it is outside the purpose of section 85 to use it to delay for that sort of pragmatic political purpose, it is not within the meaning of, or the scope of, the subject matter, scope and purpose of the Act.

BELL J:   I am sorry, Mr Lloyd, but did you say that the purpose for which you contend was denied in the defence in relation to the pleading of it in paragraph 66, is admitted by the defendants at some other point in the pleading of the foreign purpose?

MR LLOYD:   Well, it is in the special case.

BELL J:   I am sorry.

MR LLOYD:   So I think it is in paragraph 19 of the special case.

BELL J:   Paragraph 19, thank you.

MR LLOYD: So, in relation to the first – I think they did admit it but in case I am wrong it is at least an agreed fact that that was their purpose in relation to the first determination. Lastly, we would say, an exercise of power, section 85 does not authorise an exercise of power the effect of which is that detention of protection visa applicants ceases to be for the grant of a visa but instead becomes, until the law is changed, to facilitate the grant of a different visa. Section 196(1)(c) is referring to the grant of the visa for which the person has applied. It is not open to the Minister to just say, well, I am going to hold people in detention until I can have the law changed then I will grant you the ‑ ‑ ‑

HAYNE J:   Well, it is not a question of whether the Minister wants to do that, it is a question of whether the Act allows it.

MR LLOYD:   Well, indeed.

HAYNE J:   The point should not be personalised.  The question is one about the proper construction of the Act.

MR LLOYD:   I accept that entirely, your Honour, but I do have to attribute improper purpose to the respondent.  So that then brings me to the factual aspect of the case and I was going to spend some time going through the special case book, just noting first of all some basic factual matters from the special case.  Section B on page 1 of the book notes when my client entered the country and paragraph 8 notes that he has been in detention the whole time and still is in detention.

Paragraph 12 refers to the point in time when a determination was made that my client was a refugee who fell within section 36.  Then section D deals with certain steps taken under the Act.  The first one is the making of the TPV regulation.  That regulation can be found in the plaintiff’s annexure; the regulation starts on page 20 of the annexure.  The first bit I draw to the Court’s attention is on page 25 and one sees in this the way that that regulation operated.  So, 2.08H provided that, in effect, retrospectively:

A valid application for a Protection (Class XA) visa made, but not finally determined before 18 October 2013 is taken to also be a valid application for a Subclass 785 (Temporary Protection) visa –

Strictly speaking, that is misconceived because the Act only authorises people to apply for classes of visa and not subclasses of visa but the intention is clear enough that a Protection (Class XA) was meant to include an application for what became, while this was in force, a subclass of protection, Class XA visa, and so everyone who had applied for a permanent visa is deemed to have applied for a temporary visa, if the applicant meets those criteria.  So that is the first step. 

Going over to page 26, subitem 5, I accept it does not really make much sense without the balance of it but what that does is just add to the subclass of temporary protection to what previously was only subclass 866.  Then going over the page to 785 - it is not necessary to go through this in detail.  It is enough to say that the criteria for 785 are materially, except for one obviously important point, the same as for 866 that you are owed protection obligations or a person to whom Australia protection obligations – sorry, has protection obligations.  One other material difference can be seen on page 31 which is that it is a temporary visa which is granted, unlike for the 866 visa which is permanent.

Then going over to page 33, one sees a new criterion for the 866.222 visa, which operated to – especially by paragraphs (c), (d) and (e), operated to preclude the plaintiff from being eligible for a permanent visa.  The net result sought to be obtained by this visa, by this regulation, is that everyone who applied for a permanent visa is taken to have applied for a temporary visa as well, but to the extent that they are, relevantly here, an unauthorised maritime arrival, they are ineligible for a permanent visa, but there is no equivalent ban from a temporary visa, which means that they end up getting a temporary visa and not a permanent visa.

So that was the effect of that regulation, and going back to the special case, it was disallowed on 2 December, and on the same day as the disallowance, the first cap was introduced.  It is referred to in paragraph 18.  That cap was for the purpose which was agreed there.  There were many problems with that cap, not the least being that it was designated a number less than the amount of visas that had already been granted.  I should say, just as a minor point in paragraph 18, and it also applies in relation to the cap currently being disputed in paragraph 26, they have not been published in the Gazette, a relevant factual matter for the third issue. 

So we have the regulation which was designed to include that no UMA gets a permanent visa disallowed, and then on the same day this cap is put in place set to be – or thought to be at the exact number that had already been issued, therefore to prevent anyone being granted protection visas, something of a blunt instrument, but nonetheless, it would be effective to achieve the agreed object of ensuring that UMAs do not get permanent visas.

Then, in paragraph 21, the Minister decides on 5 December to cause another set of regulations to be made which are then made in paragraph 22 on 12 December.  I do not need to take the Court to that set, although I note that they are in our annexure at 66.  They are very brief, they do not create the temporary protection visa class at all, but they otherwise have a provision materially identical to 866.222, precluding UMAs from being eligible.  So it then operates practically in an identical manner by preventing, at least in this respect, by preventing my client and other people in my client’s position from getting the permanent visa.

Now, I should say at about this stage that my client, first of all, commenced proceedings to challenge the first cap and then amended that to challenge the UMA regulation, and then, as will be seen in paragraph 93, the first cap was revoked, so we amended, I think, to withdraw the challenge to that.  In paragraph 25, that shows the number of visas that have been granted up to 4 March, so 4 March is the day of the second cap determination and one sees that the number of 866 visas is marginally less, 17 less than the number of 2,750.  The ultimate cap was for 2,773 which, in substance, is the 2,750 – I will come back to that number – plus the 23 temporary visas that had been granted while the TPV reg was valid.

So we have that cap.  Then, although I think it was anticipated it would be reached earlier, the cap was reached on 24 March, shortly before I think it was anticipated it would be reached prior to when the disallowance was thought to be heard but, in fact, it was reached prior to the disallowance was ultimately heard.  Then paragraph 29 deals with the disallowance.  So that is in broad brush an outline of the facts.  I am now going more particularly to several documents.  I start on page 313 of the book; one has here a submission dated 5 December 2013, and one will see that there is a recommendation to:

agree to amend the Migration Regulations 1994 to ensure that Subclass 866 (Protection) visas will not be granted to anyone who arrived in Australia as an unauthorised air arrival or Illegal Maritime –

CRENNAN J:   Sorry, what page are you on, Mr Lloyd?

MR LLOYD:   Sorry, line 20 of page 313.

CRENNAN J:   Thank you.

MR LLOYD:   So this is, in effect, a submission which is seeking authorisation to create the so‑called UMA regulation, and one sees that also in item 4 on that first page of the submission.  Over onto page 314 there is a sort of reference back to the recent happenings.  We have a reference to the TPV being disallowed in paragraph 1, we have a reference to what the Department understands to be the Minister’s key priority:

is to ensure no further grants of Subclass 866 (Protection) visa, ‘permanent protection visa’ (PPV) to illegal maritime arrivals (IMAs).

I should say, sometimes the Court will see IMAs, I think IMAs, in effect, is the same as UMAs, the legislation uses the expression “unauthorised maritime arrivals”.  I think the Department prefers “illegal maritime arrivals”, but we apprehend it is the same thing.  Then 3, “To achieve this”, so to achieve the objective of ensuring that UMAs not be given permanent visas:

on 2 December, you signed an instrument ‘capping’ the onshore component . . . The instrument will come into effect on 4 December 2013.  However, while this will ensure no IMA is granted a PPV, it also has the effect of ceasing grants to non‑IMAs for the rest of the programme year.

So that is why I mentioned before it is something of a blunt instrument, it achieved the objective of stopping my client from getting visas, but it is apparent from these documents that the Minister and the government does not object to non‑IMAs getting permanent protection visas and so that was seen as a problem.  Then:

In order to enable the Department to continue granting visas to non‑IMAs who engage Australia’s protection obligations without also being obliged to grant PPVs to IMAs –

Then, they say, it is proposed to do this regulation.  That is the regulation which excludes UMAs so that they can then be refused protection visas.  Then they fall back as they were prior to getting their favourable decision from the Minister under section 46A to being in a position where they can no longer apply for any visa again and they are once again at the lap of the Minister.  Paragraph 8:

Should you agree to this amendment, in order to resume grants to non‑IMAs, it would be necessary to remove the ‘cap’ on the onshore component . . . Visas could then be granted to non‑IMAs who engage Australia’s protection obligations until the government’s target of 2750 onshore grants was met.

I just flag that because there will be further discussion of this 2750.  It is a policy number and I will come back to the significance of it when the documents make that clearer.  Then in paragraph 11 there is an identification that there could be a disallowance of this regulation.  Page 316, paragraph 12, there is a reference to there might be challenges to it.  Paragraph 17:

Non‑IMA applicants who currently have visa processing on hold as a result of the ‘cap’ will be able to have their visas processed and granted where applicable, should the cap be lifted or increased once the Regulation is made.

So we say this shows the close interaction between how the caps are being used and the regulations are being used.  That is why we say one has to look at the whole factual matrix in order to appreciate the purposes behind the current matter that is in dispute.  Going to 318, there is a document under the Minister’s signature.  The second paragraph refers to having:

previously written to you suggesting that one way to meet the objective of not granting Protection visas to illegal maritime arrivals –

So that is a clear identification of what the purpose is -

would be to repeal that visa subclass and replace it with two new visas – a permanent visa. . . and a temporary protection visa –

and we do not know what is said after that, but a bit later on he says:

I propose instead to proceed with the more contained amendment to the Regulations that would ensure that no further Protection visas will be granted to UMAs and UAAs -

AAs being air arrivals.  So that, again, shows underlying purposes we rely upon.  We go from there to page 331, the middle of that page, around about line 28.  This is an Explanatory Statement now, which was approved by the Minister, and it says, at line 28:

It continues to be the Government’s intention to ensure that persons who arrive in Australia without visas are not to be granted permanent protection via a Subclass 866 (Protection) visa (‘Protection visa’) in Australia.  Given the disallowance of the Migration Amendment (Temporary Protection Visa) Regulations 2013, Protection visas could again be granted to both people who arrived in Australia with visas and people who arrived in Australia without visas.

Going over to page 339, this is a media release by the Minister.  This is two days after the TPV regulation was disallowed in the Senate, and the cap was made, so it relates to that:

The government has acted swiftly to ensure that none of the 33,000 people who have arrived in Australia illegally by boat under –

the former government’s watch, so that is what is about.  The third paragraph:

I used my powers under Section 85 of the Migration Act to immediately cap the number of onshore permanent protection visas available to be granted in 2013/14 at the 1650 issued prior to the swearing in of the Abbott Government.

and a quote –

‘The government’s actions mean that no further permanent protection visas can be granted to any onshore applicants this financial year, thereby denying permanent residence to any of the 33 000 people onshore in Australia who arrived illegally by boat on Labor’s watch, and honouring our promise to the Australian people.

What we get from this is that although the cap – and this will be a point taken against us – applies both to UMAs and to not UMAs, it clearly does not preclude the notion that the Minister would use a cap to target UMAs.  This is clear evidence that this was done at least on the first occasion.  Two paragraphs further down, about line 40:

‘Illegal boat arrivals in Labor’s legacy caseload will either remain in detention or on bridging visas –

Well, for us, we are ones that will remain in detention.  Then, in the penultimate paragraph we have the absolute policy:

‘In addition I will be using my powers under Section 46(A) of the Migration Act to prevent anyone who had arrived illegally by boat to make applications for a permanent protection visa.  This bar will remain in effect until such time temporary protection visas are able to be granted to boat arrivals.

FRENCH CJ:   The Minister could have imposed a cap in excess of the number which had been granted and then used the ordering powers under 91 and so forth to give priority to non‑UMAs.

MR LLOYD:   I think that would be possible, your Honour.

HAYNE J:   That would again tend to the question of for what purpose under the Act is the person being detained.

MR LLOYD:   Yes, and we think it made – sought to rely upon the fact that the cap tends to change the purpose, and the purpose here is as indicated in the paragraph I just read.  For UMAs, the purpose of the cap is to keep them in detention until they can change the law so they will only get temporary visas.  Over the page onto page 340, the second paragraph there, there is a reference there to the previous government’s:

theatrics in the Parliament have not served to restore permanent visas for people who have come to Australia illegally by boat.

Well, whether it has or has not restored it, it is not really a question of restoring it; that is what the Act requires.  There is an obligation on the Minister to make a decision.  There is an obligation – putting aside the cap, he is referring to the disallowance.  The effect of the disallowance was that the Minister remained under a duty to make a decision and he remained under a duty if he made a favourable decision to grant a permanent protection visa.  On the next page there is an interview on the same day, 4 December.  One sees at about line 45 the Minister saying:

But that’s the process that has been necessary to ensure we keep our commitment, that is, no‑one who’s arrived illegally by boat gets a permanent visa from this government.

Then Ms Sales seeks to clarify that a bit, asking in effect what happens to genuine refugees.

FRENCH CJ:   This is all going in an immediate sense to the purpose of the December cap which is not in issue.  Is that right?

MR LLOYD:   Yes, but we say it forms part of the factual matrix which shows the ongoing – so we establish – well, I should say we also have an application for an injunction on the basis of a pattern of improper purposes, and so to that extent I suppose it is relevant to that as well.  So it has two aspects of relevance:  one to show the pattern and the other – to show the pattern to facilitate the drawing of the conclusion that the second cap is being used to the same end; and, secondly, to facilitate the factual underpinnings for the application for the injunction.  So, over the page Mr Morrison says in response to:

So does that mean that they do [at] some point have a prospect of being permanently resettled here?

He said:

No.  It doesn’t, because what will happen is the government will seek to reopen the opportunity to finalise their claims and any applications they have with a temporary protection visa when that facility is restored.

So we rely upon it simply to show ‑ ‑ ‑

CRENNAN J:   The conception is that a temporary protection visa ensures that the non‑refoulement requirements of the Convention are satisfied.

MR LLOYD:   Yes, it is no part of my client’s case to suggest that the Minister is taking a course which would put Australia in breach of its international obligations and that they are proposing to refoule anybody.  Clearly, the Minister is doing an entirely respectable and honourable thing of trying to give effect to his election promise.  But we say, when it comes down to it, well, that may be so but, as with any other government, you cannot give effect to election promises unless you can change the law. 

If the law says you have to do something different to what you have promised, you cannot achieve the bringing into effect of your promise until the law changes, and it is clear that we say he cannot achieve it.  He cannot get the law changed.  He tried twice and it was disallowed twice, and so the caps are being used as a blunt measure just to stop the grants pending something else happening to facilitate the change in the law at a future point in time.

In a nutshell, that is what we say the Court should find was going on, and we say that is an improper purpose.  Obviously if the Court is against me on the proposition that that is an improper purpose then none of these facts goes to anything, but on the assumption that that may be accepted, what I am trying to show is that the purpose was we are never going to give protection visas to this UMA cohort and we will take every step we need to do and we will use the regulations and we will use the caps and we will use the regulations in combination with the caps to achieve a result whereby the UMAs never get permanent visas, and we ultimately want to say the cap is invalid and we want a mandamus to say the Minister is currently compelled, and should be compelled, to make a decision on my client’s protection visa.

HAYNE J:   Is a fundamental premise of the improper purpose argument that the Minister may not administer the Act with a view to future changes to the Act?

MR LLOYD:   He may not exercise this power anyway, which is a power to defer the granting of visas with a view to – not with a view to deferring the granting of these visas, but with a view of deferring the granting of them so that they will never be granted and instead something else will happen.

HAYNE J:   Does not your answer reveal that the premise for the improper purpose argument is necessarily a premise of success in the first branch of your arguments?  That is, if the Minister is bound, as you would have it on the first branch of your arguments, to decide to grant or refuse to grant in accordance with 65, the purpose of administration pending change is antithetical to the purpose identified from the subject matter, text and structure of the Act?  What I am really putting to you, Mr Lloyd, is at the end of the day how separate is this point?

MR LLOYD: Well, only in this way: that this point can survive with other points lose in the sense that our other arguments are the Minister could not exercise section 85 for any purpose and we are saying, well, even if we are wrong about that he cannot exercise it for this purpose, this purpose is foreign to the Act. We obviously do say he cannot exercise it for any purpose. But, if we are wrong about that and he can exercise it for some purposes, maybe there are illegitimate purposes, but the purpose of not deferring with a view to granting in the next financial year, but deferring with a view to not granting in the next financial year or ever, but to change the law so that these people never get what they have applied for but maybe get something else, we say that that is foreign to the Act.

KEANE J:   Well, deferring with a view to never deciding on the merits.

MR LLOYD:   Well, never deciding whether to grant a permanent protection visa on the merits.

KEANE J:   Yes.

MR LLOYD:   The visa that is currently existing, yes. 

CRENNAN J:   You keep saying protection visas.  Should there be some distinction being made between permanent and temporary protection visas?  I understand the chronology, of course, of the disallowance but ‑ ‑ ‑

MR LLOYD:   Only to this extent, it may well be that the Minister is able at some later point in time, to have something like the TPV regulation which was disallowed, reintroduced or maybe enacted into the Act, rather than into disallowable regulations or however it is done.  If he did that again, then, also in partial answer to your Honour Justice Keane’s question, it is conceivable that the Minister might say, well, that would ultimately lead to a decision on the merits.  It is just that what you get is something quite different. 

We say that section 85 is not about delaying decision‑making because you cannot get legislative change through. It serves other purposes than that. Whatever other purposes it serves, it does not serve that purpose. Now, the next document is on page 345 – another press release dated 6 December. This was a day after the Minister had decided to make the UMA regulation but it had not at that point been announced. On page 346, at about line 30, the Minister said:

We believe that handing permanent visas to people who have arrived illegally by boat, regardless of when they have arrived, sends the worst possible message, and we took immediate steps as a government to ensure that the action that was undertaken in the Senate by [the opposition parties] was immediately negated.

As I reported to a separate media conference this week, the government moved to shut and keep shut the [former government’s] shop on permanent visas for people that arrived illegally by boat. I used my powers under Section 85 of the Migration Act to cap the number of onshore protection visas to ensure that no person who has arrived illegally by boat will receive a permanent protection visa from this government.

FRENCH CJ:   Can I just understand, having regard to the agreed fact in paragraph 19 of the special case book in relation to the purpose of the December cap, the basis upon which the respondent is saying that that is not the purpose of the March cap.

MR LLOYD:   Sorry.  We are not saying that is not the purpose.

FRENCH CJ:   No, no.  I am saying that the respondent – that that is not an agreed fact in relation to the March cap, is it?

MR LLOYD:   No, that is true.

FRENCH CJ:   What is the area of contest then?

MR LLOYD:   The area of contest is that my friend says that the Court should identify the purpose of the March cap.  In an anodyne way, you should look at the submission that went to the Minister to make the March cap.  Nothing about the regulations or the previous cap is relevant.  Do not look at that.  That does not inform you as to what the purpose is and what you will see, they say, is the government has a longstanding policy of having a cap of 2750 and they were just giving effect to their longstanding policy. 

So, what I am seeking to do, sorry it is a bit laborious, is to say that we say that is not right.  You should look at it in the whole history of these provisions, especially when the regulations and the caps are being overtly and expressly used in tandem to achieve an express result and to that end, we say that although the second cap, which, of course, the submission for it happened at a time after this litigation was on foot.  In fact, it happened a couple of days or three or four days before what was going to be the hearing of this litigation, no doubt more care was taken with that submission and we say the Court should look at the fuller picture in drawing inferences as to what was the purpose.

That one shows this language, and perhaps I am overdoing it, but taking it to show very strong language of a repeated and clear intention and we say that the Court should not find that there is a completely innocent explanation for the second cap, which is really unrelated entirely to wanting to stop my client or other UMAs get protection visas.  So that is what this is going to.  So in a sense, what I am doing first is ‑ ‑ ‑

HAYNE J:   What is the relevant difference to which you point between a purpose of just limiting numbers – I do not care what the number is, just limit the number of protection visas that will be given, and this rather more fell purpose that you describe as being to either await changes in the law, or direct it against your client or others?  What is the legal difference that I am grappling with?

MR LLOYD: Well, on this part of the case, we are accepting that it is possible to exercise the section 85 power for some purposes. What we are saying is that, as your Honour put it, the fell purpose was the actuating purpose and it was a purpose which was outside the scope, or subject matter, scope and purpose of the power, and so the relevance to us is we will want the Court to make a finding that a substantial purpose for the March 2004 determination was to continue the ongoing intention of the government that UMAs never be given protection visas, and that it was a tool used, maybe to do other things as well, I do not deny that, but it was a tool used, as in significant respects, motivated to ensure that UMAs would not get permanent protection visas. We say that when it is done for the purpose of delaying decision‑making so that this subclass of people can have their rights amended in the future by legislative reform that is outside the scope of the Act for that power.

The other point I would make about the passage I read on page 346 is that it shows that the cap was designed to negative the legislative oversight by disallowance.  The cap there was being used to defeat the parliamentary disallowance.  Now, one point that will be made against us is that the second cap happened a couple of days before the previous regulations were to be the subject of challenge, and so that it is different.  It is not immediately after.  We say, well, it was in anticipation of the challenge and there was a real anticipation that it would be either disallowed or held invalid, and so the cap has to be seen as part of a broader strategy.

At the bottom of page 352 over to the top of page 353, I will not read it but we see again material which we say shows that the decision is in response to the Senate activity and that the foreshadowed UMA reg, which is not expressed in terms at this point, but it is mentioned as sort of coming up and again mentioned at the second paragraph on page 353 in absolute terms:

But if you have come illegally by boat, you’re not getting a permanent visa; it’s just not going to happen.

Over to page 357 – this is a submission that was done on the day that the UMA reg was made.  Perhaps I can skip over that.  A little bit later on – 13 December, so this is now after the UMA reg has been made, on page 366, there is another press conference.  On page 368, at around about line 20, the Minister is asked by General Campbell:

Minister, is the government considering now or in the future a change to Australia’s border security policies regarding illegal maritime arrivals?

Scott Morrison:  Absolutely not.  The government would only be strengthening policies, General.

That continues in the same vein.  At page 376, there is another submission to the Minister now about revoking the first cap and explaining that.  One sees mention on page 377, again, of the history in paragraphs 1, 2 and 3.  We say that that shows the combined effect and the way that the cap and the regulations are used together to achieve the policy objective of denying UMAs permanent protection visas.

There is a reference in paragraph 5 to “The Humanitarian Programme has been set at 13750 visas”.  Now, I flag this because this is ultimately part of the Commonwealth’s response to our argument, but just because I am going through it, in a sense, chronologically, at least chronologically to support our finding as to the purpose of the 2014 determination, there is a reference here to “13750”, and then there is a reference to “2750 places were allocated to the Onshore Protection programme”, but as would appear later, this 2750 is in the government’s policy to be all filled by non‑UMAs.

The Court will come to see a number of 11,000, a reference to the policy being that 11,000 should be reserved for offshore places, and the 11,000 is, as it were, the difference between the total humanitarian program, 13,750, the amount which is allocated to onshore protection, and the 11,000 is then the amount allocated to offshore.  Paragraph 6 notes that, “with the new Regulation in effect” they are then able to “resume granting PPVs”, which is obviously then done.  Paragraph 9 over the page:

The regulation which came into effect on 14 December 2013 may be disallowed by the Senate when sittings resume in 2014.  Should this occur you may wish to re‑cap the programme –

So the cap is identified there as a sort of a tool.  If the regulation is not being used to stop UMAs, or IMAs, getting permanent visas, that the cap is the fall‑back position, the fall‑back strategy advised by the Department.  It is clear that if the regulation had been disallowed, it was certainly envisaged that the cap would be coming back or held to be invalid.  Going from there to page 382, we have another document which…..from about lines 15 to 30 summarises the past history I have taken the Court to.  At about line 37 it says:

The government has a clear and thumping mandate to restore temporary protection visas -

That, again, shows the intention of legislative change to bring that about, supporting, we say, our inference that these actions are all directed towards delaying decision‑making until the law can be changed.  At the bottom of the page, 382:

The government will not give an inch when it comes to protecting our borders and will take every step necessary to ensure that people who have arrived illegally by boat are not rewarded with permanent visas -

Over from there to page 400 there is another submission, this time 15 January.  It is entitled “Continuing to achieve the policy objective of no permanent Protection visa grants to IMAs”.  Then there are a number of recommendations.  The first one is:

Note that, in the absence of further legislative change (including the creation of a new temporary visa) ‑ ‑ ‑

CRENNAN J:   I am sorry, but where are you now?

MR LLOYD:   Sorry, page 400 at about line 19.

CRENNAN J:   Thank you.

MR LLOYD:   So there is a reference there again to legislative change being this thing in the future they want to achieve:

there is a real risk that Court decisions will require the grant of a permanent protection visa (PPV) to an IMA in the medium to long term –

In the medium to long term because that is what we are seeking –

Note that there are a number of approaches you might take to delay the grant of a permanent protection visa –

because that is what they are trying to use all these approaches for.  Then 4:

Agree that the IMAs who are ‘grant‑ready’ have their PV application refused before issuing an alternative visa –

So the idea behind that is, because the UMA regulation is in place, I can just say to everybody who is a UMA, “Because you are a UMA, you are ineligible for a protection visa”.  They then refuse that and then they grant, not to my client but to other people, they could then grant one or other of the combination of visas in paragraph 5.  Then in paragraph 6 there is a reference there to again:

In the absence of a new temporary visa, indicate whether you wish the 27,000 IMAs who do not have valid applications to have their claims processed or not.

The Minister has said “subject to events”.  Over the page, onto page 402, again there is a reiteration of the Department’s understanding of the Minister’s key concern.  In paragraph 1, references again to what can be done pending legislative change and what are the risks, as it were, in the short and medium or long term and 3 identifies strategies:

There are a number of strategies that are potentially open to you to delay being forced to grant a PPV in the absence of a new temporary visa –

Then, there are four things noted: 

Ceasing all IMA processing -

and I apprehend that that means cease it, not by doing a cap, but just stop doing it –

b.Refusing some or all of the IMA primary applications on hand using the new 14 December Regulation criterion;

c.Re‑capping the program . . . if disallowed;

d.Repealing the Permanent Protection visa subclass –

which is something I mentioned is a possibility earlier.  Then, in 4, it says:

Each of these strategies is likely to be short lived –

which does not show a great deal of confidence in them -

as a consequence of decisions taken in Parliament to overturn them or in the Courts to invalidate them.

Then there is an interesting document on page 413 which sets out a timeline for a combination of caps and regulatory changes and how long it might take before they are disallowed.  This is the document headed “‘Best Case’ Scenario – High Court may do the unexpected” and then there is an indication of sort of potential timelines all leading down to 1 July which we infer is significant because that is when the makeup of the Parliament – or at least the Senate will change.  All of this document supports what we say is the interrelatedness of these actions, the idea of a recap coming in, if the recap is found to be invalid then the next step is to repeal 866.

HAYNE J:   Why is it a purpose foreign to the proper administration of the Act for the Minister to say “The number of visa recipients of this class shall now be limited at X; it is appropriate to limit them to X because in the future I hope that Parliament will change the law regulating this area of the migration program”.

MR LLOYD:   Well, we say that the power ‑ ‑ ‑

HAYNE J:   What is foreign to the Act about that?

MR LLOYD: We say what is foreign to the Act is that what it is doing is saying we are currently under the Act bound to give permanent visas to people, although the Act and the Parliament has legislated to require us to do that and has twice rejected delegated legislation. We want to delay the making of decisions so that we can change the law and not give – not to defer the making of the granting of a visa, which is what section 85 is about, but to, in the sense of deferring the grant until a later point in time, they do not want to defer the grant, they do not want to grant the permanent protection visas, so they are using the power which is a deferred grant to another period to defer it to a time when they cannot grant it, and we say that is ‑ ‑ ‑

CRENNAN J:   Well, then grant another visa, the platonic temporary protection visa, not yet part of the law.

MR LLOYD: That is so. Not yet part of the law, yes. We say that section 85 is not there and it is foreign to the Act to use it to delay decision‑making until you can amend the Act or the regulations. I will leave the Court to read the balance of this, but I note that for each of the ideas, the strategies identified in paragraph 3, there is also a subheading explaining them, so there is ceasing, processing, or IMA, PPVs, applications. There is no reference there to any actual power to do that, so one might have thought that that was clearly unlawful if you are bound to do something within 90 days, just to make a decision not to do it, apropos of nothing.

The Department seems to have identified that in paragraph 9a.  That creates an immediate risk of being challenged, one might have thought so, especially for people in detention, like my client and, indeed, they recognise the risk as to the lawfulness of the detention and we do say that is a problem or would be a problem if that is what they did.

FRENCH CJ:   That might be a convenient moment, Mr Lloyd.

MR LLOYD:   Thank you, your Honour.

FRENCH CJ:   The Court will adjourn until 2.15.

AT 12.43 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.15 PM:

FRENCH CJ:   Yes, Mr Lloyd.

MR LLOYD:   I think I was on about page 405 of the special case book in the submission about continuing to achieve the policy objectives of no permanent protection visas.  One of the options which is addressed at page 405 in the middle of the page, “Repealing the Permanent Protection visa subclass”, all I draw to attention there is at 13, paragraph c:

The Legislative Instrument repealing the class could be expected to be disallowed, but again, some delay in cases becoming grant ready could be achieved –

Again showing that the object of all of these sort of options are to delay the processing of the UMA or IMA cohort until some further time.

FRENCH CJ:   At paragraph 71 of the Commonwealth’s submissions it is said not to be:

in dispute that it is the intention of the Government, and the Minister, that unauthorised maritime arrivals should not be granted permanent protection visas.

That appears to be a global intention which encompasses the March determination but it is said not to be a sine qua non because it otherwise fits into the longstanding humanitarian program arrangements.  Is the purpose which you are seeking to identify by these references through the documents any different from that stated intention in paragraph 71?

MR LLOYD: Only insofar as it goes further to say that the intention in relation to the cap is certainly to not give my client’s cohort a visa but also to delay processing or decision‑making until such a point in time that legislation can be changed, and we say that that, using section 85 for that purpose, is an improper purpose, so ‑ ‑ ‑

FRENCH CJ:   But the response to you is, it is your purpose which coincides with the conceded intention, is not the sine qua non.

MR LLOYD:   Yes.  They say, I think, in relation to the cap that that was part of a longstanding policy to have a cap of 2,750 and presumably one is not to draw any inferences from the fact that it came in at a time when the UMA regulations was looking doubtful as an ability to stop my client.  The answer which we make to that, which I am about to get to, when I get to about page 458, I then propose to go through the material that the respondent relies upon to say why their explanation of a sort of an innocent purpose should not be accepted and the nub of that is that their longstanding policy about having a cap of 2,750, when understood in the context of their own policy, was that the 2,750 also excluded my client’s cohort. 

They were never in the 11,000 or the 2,750.  So, to say that it is consistent with their longstanding policy, that is a longstanding policy which was also to ensure that my clients never got a permanent protection visa.  So, we say that is no answer.  It is all still consistent with our view that the cap, in giving effect in part to the longstanding policy, is also giving effect to the improper purpose.

FRENCH CJ:   Well, if their approach is really a kind of confession and avoidance, should you not be focusing on the avoidance which is what you spoke of then?

MR LLOYD:   Well, perhaps, I can then skip ahead.  If I go to page 458 – this is the submission which went to the Minister proposing the second cap and no doubt it will be said against us – well, it does not say anything in there about refusing, about stopping IMAs.  That was not what it was about.  It would have that effect they will say but this is just to give effect to their longstanding policy about 2,750.  So, not surprisingly, there is nothing in this document that assists my case in particular, although I do note at the top of page 460 that there is an acknowledgement that the cap had never been used in relation to onshore matters before for protection visas.

But then after the cap was made there was a statement by the Minister, which is set out at 465.  There is a reference in the first paragraph to quarantining 11,000 resettlement places.  The numbers the Court will see repeatedly in the next little tranche of documents is that the need to reserve 11,000 places, they are offshore places – so they are either refugees in offshore camps, or family members of refugees in Australia being, in effect, reunited – that is the 11,000.  That number has no statutory basis.  It is not a cap or anything.  It is just the program number. 

That is a subset of the broader program number of 13,750 and those two numbers then leave 2,750 for onshore protection visa cases and as I will come to show, the longstanding policy was that none of those 2,750 should go to my client’s cohort.  So of the 2,750 it was not envisaged that my client ever gets a chance at that 2,750.

GAGELER J:   Mr Lloyd, at the top of page 460 “Migration Programme” has capital letters and “Humanitarian Programme” as well.  Do we find those programs defined somewhere?

MR LLOYD:   One finds them referred to frequently.  Because they are not in legislation I do not think I could say they were defined anywhere, but on page 244, which I took the Court to a bit earlier, there is a reference to the “Migration Program” having a total of 190,000 places at about line 20 or 21, and then the “Humanitarian Program”.  Now, this was, of course, related to a period during the former government so the numbers do not refer to 13,750 here, but the humanitarian program is - or a subset of the migration program. 

There would be other things for Olympic athletes and so on and so forth, different visas for different groups of people that the government wants to encourage, but other than that I am not sure that I can say that there is no, sort of, definition of what it is other than that the humanitarian program is intended to embrace the visas, I think, that run from about subclass 200 to subclass 205 which are a series of humanitarian visas for refugees and women at risk and so on and so forth.  They fall into the humanitarian program.

If I can find another document which more clearly identifies exactly what falls into that program, I will try and do that.  In the table at the top of page 460, one sees there – this is at paragraph 7 – refugee grants are offshore refugee numbers; SHP are the Special Humanitarian Programme – so that is, in effect, the family reunification numbers – and the onshore grants are the protection visa numbers.  These all end before the change of government, but one sees the total, a number of, well, except for the last year, around 14,750, a bit less than the first year, representing the nominal program number, and, as the onshore – how it seems to work, and we understand it works – is as the onshore grants go up because more boat arrivals or whatever are coming, then the one or other of the refugee grants or SHP grants are then diminished, so that the 13,750 target is kept.

Exactly how any of that is entirely consistent with the Act, I am not sure, but that seems to be what happens.  So what seems to be happening here is that as the number of onshore grants go up from 2008‑09 onwards, the family numbers are diminished, until the 2012‑13 year.  I think the government made a decision following some report suggesting that it might diminish boat arrivals if they took a larger number of people and that is where they went up to around 20,000.  Your Honour Justice Gageler, on page 165 there is a discussion of what is the humanitarian program.

HAYNE J:   What is the document of which this forms part?

MR LLOYD:   It starts on page 146, it is the government’s response, called “Refugee and Humanitarian Issues”.  I think I was at page 465.  This is a statement after the second cap has been put in place.  It refers to the attempt to reserve the 11,000 resettlement places.  The second paragraph says:

the government has capped the number of places available to onshore applicants under Australia’s refugee and humanitarian programme consistent with our proposed planning levels.  This will ensure the government can, for the 2013/14 refugee and humanitarian programme year, set aside 11 000 resettlement places which includes an additional 4000 places for the Special Humanitarian Program –

About three paragraphs further down you see this linked, in a sense, to the policy in relation to UMAs:

This latest measure to restore fairness and integrity to our refugee and humanitarian programme follows the government’s actions last year to deny permanent visas to those who arrived illegally by boat . . . 

The Coalition Government will not give an inch when it comes to protecting our borders and will take every step necessary to ensure that people who arrive illegally by boat are not rewarded with permanent visas.

So, even in the context of the cap, the link to the achievement of the goal versus UMAs still remains present.  The last document in this part of the case is at 467, which is on the day of the second disallowance.  If I just note that the second and third‑last paragraphs again reveal, we say, the link between the objective of denying my clients permanent protection visas and the cap. 

Against that, as I have indicated, the Commonwealth says the second cap is not about that.  The first cap, they said, was about that.  The second cap, they say, is not about that.  It was just giving effect to a longstanding policy.  If I go from there back to 246 – this is the principal document relied upon.  So this is a document dated 23 November 2012 - “Government must live within its means:  Humanitarian Programme”.  At about line 40:

If elected to government, the Coalition will save around $1.3 billion over the forward estimates by not proceeding with the Government’s plan to increase the level of Australia’s humanitarian intake from 13,750 a year to 20,000.

So, that explains that one 20,000 number.  Even in the context of the document about the 13,750, it is clear that the situation of UMAs remains in mind.  Over the page at line 12 it is talking about boat arrivals and how much they cost.  Then two paragraphs further down, under the former governments:

there have been more than 30,000 illegal arrivals.

Two paragraphs further down:

If elected, the Coalition will again re‑focus Australia’s refugee and humanitarian ‑ ‑ ‑

FRENCH CJ:   This is all consistent with the conceded intention at paragraph 71 of the first defendant’s submissions, is it not?

MR LLOYD:   Yes, but they say that the cap is ‑ as I understand their case, the second cap was not done to give effect ‑ that remains their intention, but they do not say the second cap was done for that purpose.  They deny it in their pleadings and they did not agree to it in the special case.  So we are saying, well ‑ although they agree that generally that is their policy, they do not accept that the second cap was done to achieve that end in the way we say. 

So, to that extent, what I am trying to do in going through this material is to show that the longstanding policy that they say is what all the second cap is giving effect to is a policy which itself is premised upon giving no visas to the UMA group.  So their attempt to say it is innocent and it is apart from or separate from or unrelated to or not for the purposes of denying my client visas should not be accepted.  So one sees in the paragraph beginning about line 27:

Under the Coalition a minimum of 11,000 places of the 13,750 . . . programme will be reserved for offshore applicants.

HAYNE J:   What are we getting out of this detailed rehearsal?  I understand your argument to be that the purpose should be identified as a purpose of denying your client and persons in like case a permanent visa.  What are we getting out of this, Mr Lloyd?

MR LLOYD:   Well, as I understand the case that I am answering, they say, well, we have that policy, but the cap is not done to that end, and what we are saying is by reference to – and they say the cap is being done pursuant to a longstanding policy, and we say ‑ ‑ ‑

HAYNE J:   I think you have made that point more than once, Mr Lloyd, that that is the case you are answering.  What are we getting out of this detailed rehearsal?

MR LLOYD:   It is to show that their longstanding policy is premised upon a refusal to give permanent visas to UMAs, and we say one sees that in the next sentence:

This will reverse the trend under Labor where the number of places available to offshore refugee and humanitarian entrants fell –

So it is in that context.  We then have another policy document on page 248 and on 249 it says “Delivering stronger borders and a more secure nation”.  In the second paragraph there it says:

We will not allow illegal boat arrivals and people smugglers to either determine Australia’s immigration programme, or undermine –

it.  Then the two dot points at the bottom of the first column:

We will give priority in processing to offshore special humanitarian visa applicants, over illegal boat arrivals.

So this is where we see the notion that it is not even offshore versus onshore; it is offshore versus illegal boat arrivals.  That is what is motivating the policy.  That is the premise of it.  So to say that it is just simply giving effect to some anodyne long‑term policy program number we say does not avoid the point that it is still a tool designed for the purpose we say it was designed for.

One sees that also – perhaps if I go to pages 255 - this is another policy document of the current government, albeit when they were not the government - 255 over to 256, starting at the bottom, about line 40, one sees in that discussion, which I will not read out, again a focus upon not giving permanent visas to people who come off boats, to giving priority to offshore people.  At line 20, one sees that again; 25, talking about people coming by boats.  We say that understood in that context, the respondent gets no assistance in saying that the policy is in some respects not directed to, at least in part, in a substantial part, as a substantial purpose that that is motivating the cap is to be a tool to prevent people and my client’s cohort from getting the visas.

So perhaps I have overworn my welcome in terms of taking the Court to evidence of that, but we say that is sufficient for the Court to conclude that the second cap, like the first cap, like the regulations, were part of a factual matrix designed to prevent my client from getting a permanent protection visa and what it was doing was creating a cap according to which UMAs will never get them and section 85 is not available for use to lead to a result where somebody never gets the visa they apply for. A cap under section 39 can have that effect but not one under section 85. So, for those reasons, we say that there is a continuation of the improper purpose and even if, contrary to our first point, there is a power to use section 85 in respect of protection visas this particular exercise of the power was unlawful.

Your Honour Justice Hayne asked me before lunch about the different legal effects as between having a cap for this purpose as opposed to some other purpose.  We say that the situation is not different say to the case my friends rely upon as a point of principle, which we do not take issue with, the Thompson Case where the council over‑acquired land so that they could resell some of it and make a profit.

HAYNE J:   That was a purposive power, a power of a local authority to acquire land for the purposes of the authority.

MR LLOYD:   Well, I accept that, but nonetheless ‑ ‑ ‑

HAYNE J:   Why is this a purposive power?

MR LLOYD:   Well, it is purposive in the sense that it can only be used for the purposes – within the subject matter, scope and purpose for which it was provided.  It is purposive only in that sense, but we say that is sufficient.  But, in terms of the difference of legal effect, there is no difference in legal effect other than in the Thompson Case between acquiring the land – if it was all acquired because the Council wanted to use it to do a proper development on it the effect of the acquisition would be the same as if they acquired it for an improper purpose, save for the unlawfulness and therefore invalidity of it, and we say our case is no different. If the purpose for which section 85 is used is foreign to the Act it is, to that extent, unlawful.

That then brings me to the third issue, which is the making of the determination.  As the Court will have seen, the power is to make a determination and it prescribes how it can be made by notice in the Gazette.  We say and it is common ground that it was not done by notice in the Gazette, and we say therefore it is invalid. My friends say, no, because section 56 operates to provide that registration is sufficient. So, on that basis, we turn to section 56 to see what it does provide. It can be found in the Commonwealth’s annexure to its submissions on the last page, page A20. Now, it is convenient to start with 56(2), it says:

If the enabling legislation in relation to a legislative instrument as enacted, or as amended, at any time on or after the commencing day –

which is the commencing date as defined to mean the day at which the Legislative Instruments Act commenced, on 1 January 2005, I think.  So, if the legislation –

requires the text of the instrument, or particulars of its making, to be published in the Gazette the requirement for publication in the Gazette is taken in respect of any such instrument to be in addition to any requirement . . . to be registered.

Now, to know how that operates one has to look at the definition of “enabling legislation”, but the thrust of it is if the enabling legislation has been enacted or amended subsequent to the Legislative Instruments Act then 56(2) will provide that any requirement in relation to the publication, which we do not say that is what this is but if that is what it is on the respondent’s case, then it has to be done in addition.  Now, the Migration Act was amended – well, perhaps I should go first of all to the definition of “enabling legislation”.  It is not in my friend’s annex, but is in the supplementary bundle handed up this morning at page 113.  It provides that:

enabling legislation, in relation to a legislative instrument, means the Act or legislative instrument, or part of an Act or of a legislative instrument that authorises the making ‑ ‑ ‑

KIEFEL J:   I am sorry, where are you reading from, Mr Lloyd?

MR LLOYD: Sorry, page 113 of our supplementary bundle of authorities. It is definition of “enabling legislation” in section 4 of the Legislative Instruments Act.  I accept there is an issue of construction here, but:

enabling legislation, in relation to a legislative instrument –

If I stop there, that is clearly engaged by 56(2), enabling legislation in relation to a legislative instrument.  One meaning is, putting aside legislative instrument that deals with if it inside a regulation, for example, it means the Act or the part of the Act:

that authorises the making of the legislative instrument concerned.

So if one brings that into 56(2), one asks does the Act, the Migration Act, or was the Act, or the part of the Act that authorised the making of the legislative instrument concerned, enacted, or was it enacted after the commencing date, but was it amended?  Well, the Migration Act was amended. Subdivision AH was amended, but section 85 has not been amended. So there is an issue there as to how one - if one uses the definition in its natural terms as saying that 56(2) is engaged either if the Act or the part of the Act – query if that means the specific provision, or the subdivision, or the part – if it means anything other than the section, then the Act or the part of the Act was amended, which would then bring 56(2) in.

I should draw the Court’s attention, also in our bundle, at pages 38 and 39, in 2005, a little time after the Legislative Instruments Act commenced, there were amendments to the Migration Act, with respect to the Legislative Instruments Act, by which some sections which had provisions, at least in some respects similar to section 85 were amended to say that they were legislative instruments, and so any removal for gazetting was removed and instead they were said to be legislative instruments and that was inserted.

So our point simply is section 85 was not included in that. So, notwithstanding that the Act and the part, or a part, the subdivision, was amended, a decision was apparently taken not to amend that, which then arguably invoked section 56(2), and if 56(2) was invoked then whatever the balance of the provision means, considering it most favourably to the Commonwealth, it would require the gazettal and registration and absent gazettal there is a breach.

CRENNAN J:   May I just interrupt you for a moment?  Should we not look also, though, at the provisions in the Legislative Instruments Act, Part 4, Division 1, which provide for a register and if one looks at section 20, 21, and 22, it is seen that the purpose of the register is to ensure that delegated instruments are publicised just in the way that was required by the provisions in relation to the Gazette which was the subject of consideration in Watson v Lee (1979) 144 CLR 374. Are you going to come to that?

MR LLOYD:   Well, we accept that the whole purpose, or one of the purposes of the Legislative Instruments Act, was to make a different regime, to create the register and so that legislative instruments would be put in the register and, of course, that is entirely consistent with my reading of 56(2). If, in fact, under 56(2) it is a legislative instrument, then it would require to be registered and also gazetted. That is what 56(2) has the effect. So you do not get out of gazettal but you have to register as well. Section 56(1), however, is what my friends rely upon. We just say it is not even clear that we are in section 56(1) territory because the Act has been amended. But, if one construes enabling legislation contrary to the definition which seems to give you the alternative of the Act or the part of the Act – let me take that back.

Our point is if you construe enabling legislation as being either the Act or part of the Act has been amended, then the answer is the Migration Act was amended and so 56(2) is engaged. If that is not the right construction, and you really have to look at the section that gives rise to the power, then we accept section 85 was not amended after the commencing date. So that means 56(2) would not be engaged. That means you come to 56(1). It says:

If the enabling legislation in relation to a legislative instrument as in force at any time before the commencing day required –

I will stop there. So it is now looking at a situation where, prior to the commencing date, you are looking at a power that is in relation to a legislative instrument. So a power, as it were, in abstract. Does this power which is about the relationship of gazettal requirements to registration requirements – is this power, relevantly, is the power in section 85 a power in relation to legislative instruments?

Their answer to that is, well, once it is registered the effect of the Legislative Instruments Act is that that instrument was a legislative instrument – that is in section 5(3) – so they say, well, then the power does come within 56(1) and they say they get the benefit of 56(1).  What we say is that this is looking – I mean, the problem with that is that you could have one power which one day it is registered and the next day it is not registered.  That means you have got a power which sometimes 56(1) applies to and sometimes it does not apply to. 

We say the proper construction of 56(1) is whether or not there is an enabling provision in relation to a legislative instrument – that is, an instrument which has the character referred to in 5(2)(a) and (b).  Relevantly, it has to have the power that it determines the law or alters the content of the law, rather than applying the law in a particular case.  The way it is expressed ‑ ‑ ‑

CRENNAN J:   Even if you were right and there was, on your construction, a need for publication in the Gazette and it did not take place, the result would not necessarily be invalidation of what was not published in the Gazette, would it, if one follows the reasoning in Watson v Lee?

MR LLOYD:   Well, the result would be that until that - I mean, on our view, the determination is only made by notice in the Gazette.  If there has not been a notice in the Gazette, there is not a determination and the purported determination is not a valid determination.  That is not to say they could not go on to make a valid determination, but nonetheless ‑ ‑ ‑

CRENNAN J:   By ex post facto publication in the Gazette.  Is that what you meant?

MR LLOYD:   It would not retrospectively appear, but they could prospectively - I mean, assuming we lose every other point ‑ ‑ ‑

CRENNAN J:   Yes.

MR LLOYD: ‑ ‑ ‑ they could then go out the day after the Court’s judgment if we are successful on this point perhaps, and then gazette it but nonetheless, in looking at it we say it is - section 56(1) is not engaged, they have not gazetted it and it is invalid and it is a reason why the Court can and should answer the question asked in the special case that it is invalid.

HAYNE J: Section 56 speaks of requiring:

the text of the instrument, or particulars of its making, to be published –

Which of those phrases is engaged?

MR LLOYD:   Well, we say neither of them.  We have two reasons why 56(1) we say does not operate.  One is, we say, that apart from ‑ ‑ ‑

HAYNE J:   I was taking that out of 56(2).

MR LLOYD: Well, we also say that that does not apply for the same reason it does not apply in (1), but that does not assist my friends. If 56(2) - if the chapeau of it applies, then well - if I put it this way. My friends say that, for the purposes of 56(1), which they rely upon, that section 85 has a requirement that the text or instrument or the particulars be published. Now, we do not accept that. If we are right, then 56(1) and 56(2) do not apply and we win. If they are right, but we are right about 56(2), then they still lose, because 56(2) requires gazettal.

If they say that 56(2) does not apply and the Court accepts that, and the Court accepts that this is truly a requirement about publication of the text or particulars, which we deny, but if we are wrong about that, we still say that 56(1) is not engaged because section 85 is not a power in relation to a legislative instrument.

We say section 85 is not a legislative instrument. It does not determine the law. It does not alter the content of the law. The law is determined by section 86. It says what happens. One does not say you have breached the determination. One says I am constrained by section 86 by a reference to this administrative Act, namely the determination. So the determination does not, we say, determine the law. It does not alter the content of the law so, therefore, the opening words of 56(1), we say, do not apply.

Now, if that is right then it does not matter what the next words mean, but if we are wrong about that and we get to the next words we say that section 85 is not in terms a provision that requires publication of the text of the instrument or particulars of its making, but rather it is not a requirement to publish, but it is a specification of the manner of making of an instrument. It is to be made by notice in the Gazette and to that extent we say it also does not engage 56(1).

That, I think, is all I want to say in relation to that point.  I think that brings me to relief, and the relief we seek is in the supplementary book.  If I go first to paragraph 118 on page 21 of the supplementary book, we seek declarations a and b to the effect that the determination and the registered legislative instrument are invalid and if we are successful on any of the three principal grounds we say we should get those.

In relation to c, we seek an order for a writ of mandamus.  We say that if the cap is invalid then there is nothing that prevents the Minister from complying with his duty under section 65A to make a decision within 90 days.  He is obviously well past the 90 days and we say that duty does not dissolve at the end of 90 days but is an ongoing duty and there is no reason not to grant a writ of mandamus and there no agreed facts that would support any discretionary refusal of relief in relation to that. 

In relation to paragraph 117, if the Court accepts that the improper purpose argument - that there was an improper purpose in relation to both caps, then having regard to the evidence about the various strategies that the Minister is contemplating we apprehend - and we do not know all those strategies because some of that document was blacked out - that the Minister will continue to advance the objective of the government of denying my client a visa by reference to being a UMA.  The injunction is designed to be narrow enough ‑ ‑ ‑

HAYNE J:   In what form?

MR LLOYD:   The form of the injunction?

HAYNE J:   Yes.

MR LLOYD:   The one set out at paragraph 117 on page 21 of the special case book which allows the Minister to consider the matter and refuse us, but not to take any steps that are designed to, in effect, prevent him from making a decision.  So, I mean, obviously that would prevent future caps, although one would expect the Minister, if he loses on the declaration point, not to do another cap, but it might prevent section 84 or any other matters that are directed to that purpose, so we seek an injunction.

Then, finally, there is a question of costs.  We have in our submissions dealt with that.  I think the difference between us is we say – I think the Commonwealth says that the costs of the special case should go to the winner, and we are content with that.  They say, however, all the costs of our previous arrangements where we challenged things and then had to amend when something was disallowed or when they revoked something, may I just say the costs should lie where they fall, and we say that if we are successful, we should get the costs of the entire matter.  Your Honour the Chief Justice on the last occasion ordered that the costs thrown away in relation to the last hearing be costs in the cause, but that still leaves whatever is anterior to that.  We say if we are successful in getting any of the relief we seek, we should get the totality of the costs of the matter.

GAGELER J:   Mr Lloyd, if you were successful in one of your construction arguments so as to get all or some of the relief you seek in paragraph 118, would you press paragraph 117?

MR LLOYD:   I suppose logically, your Honour, I have to say yes, but if I am unsuccessful in 118, it is difficult to see how I could get 117.

GAGELER J:   I can see the logic.  I am asking what you would do.

MR LLOYD:   Well, I think my instructions are we do press it, your Honour.  May it please the Court, they are my submissions.

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

MR NIALL:   If the Court pleases.  The Court should have a copy of our outline of oral arguments to be advanced today.  While your Honours have that, can I make one minor correction to paragraph 10 in the last line by deleting the reference to paragraph (c) at 501.  That should not be there.  If the Court pleases, our case and argument is limited to the construction of the Act which my learned friend Mr Lloyd addressed as his first point and we seek to get to the same outcome but by a slightly different route, and I will seek to advance the submissions to identify that route quite briefly.

Our fundamental submission is that, as a matter of construction of the Act as a whole and in its current form, the class of visas in section 85 does not include protection visas. That result is to be arrived at by reference to the text and context of the whole of the Act, recognising the special provisions of protection visas and not just section 65A.

HAYNE J:   Why do you confine that to the Act as it presently stands?

MR NIALL:   Because the question of whether the cap could have been imposed prior to the introduction of 65A is not necessary to resolve on our construction.

HAYNE J:   Is it relevant to look to the legislation that was the origin of the relevant provisions of the Act?

MR NIALL:   It is, your Honour, and I will take as a matter of history your Honours to the position that obtained prior to section 65A because that is important to our argument, but our argument as a construction of the current Act which section 65A included.  Before coming to that proposition, can I briefly submit that the two provisions that are the focus of the proceedings – 65A and 85 – cannot have a sensible concurrent operation if read literally.  I think neither side contends that it can, but can I demonstrate it quite quickly by reference to 65A immediately.

If your Honours turn to 65A, your Honours will see that the Minister must make a decision under section 65 within the 90 days. That is relevantly unique in terms of setting a time limit for the making of a decision to which section 65 directed. So that is clear and read literally the decision must be made. If your Honours then turn to section 85, your Honours will see that the determination is made and its effect is in 86, that no more visas may be granted. Section 86 does not say that no decision can be made, only no particular decision. So when you marry the two provisions together read literally, the Minister would be obliged at the 90 day mark in the face of the cap to refuse the visa because that is the only decision that could be available to him.

HAYNE J:   Well, you have just mashed together 65, 65A and 89.  Have you not got to begin with 65?

MR NIALL:   We do, your Honour.

HAYNE J:   Without regard to 65A.  If anything, 65A is emphatic of a point, but do you not begin at 65?

MR NIALL: Section 65A directs attention to the decision to which section 65 must be made, and when one looks at section 65, it identifies a couple of aspects. Firstly, the duty arises as the first two words makes clear, “After considering”. So that feeds back into commencing at section 47. So the process culminated in 65 arises after considering a valid application. Then the Minister must turn his or her mind to the satisfaction as to the relevant provisions and, in our submission, he would not be, read literally, entitled to grant the visa at that point in time if section 85 applied.

HAYNE J:   Why?

MR NIALL: Because section 85 provides, in our submission, that no more visas may be granted in the year.

KIEFEL J: But the grant under section 65(1) would have to be within a reasonable time and that would be inconsistent with section 85.

MR NIALL:   That is so, your Honour.

KIEFEL J:   The effect under 86.

MR NIALL:   The qualification in 65, prior to the introduction of 65A but insofar as it applies to other visas, is a reasonable period of time.  A decision would have to be made within a reasonable period of time.

KIEFEL J: Well, you still get a clash with section 86, do you not, in the same way as you do with 65A except that it is, if anything, more emphatic, as has been said.

MR NIALL:   In our submission, the Minister could defer the clash by not making a decision.

HAYNE J:   But that is the point, 65 is binary in its outcome and the contention against you is that there is a third category, a category of not decide to grant, or decide to refuse to grant, but a third category of wait.

MR NIALL: The position, as we would submit, would be that the Minister could – if the Minister waited by reference to the cap that was imposed under section 85 and section 86, the remedy that an applicant would have would be mandamus in the face of a refusal to make a decision.

CRENNAN J:   Could the Minister regularise the wait, if I can put it that way, under 65A(1)(d), recognising that the 90‑day requirement would clash with the cap?

MR NIALL:   To start the 90 days ‑ ‑ ‑

CRENNAN J:   I suppose the general question is, is (d) granting a power to enlarge through the mechanism of regulations the 90‑day provision in (b)?

MR NIALL:   Well, it enlarges it by reference to a different starting point rather than the ‑ ‑ ‑

CRENNAN J: Yes, I understand that. I am addressing this point to you in the context of you saying there is no possibility of resolving a clash between section 85 and section 65A and the 90‑day requirement.

MR NIALL: In our submission, the power to make a regulation or prescribe a period in 65A would not accommodate the circumstance of section 85 because, in our submission, the purpose of 65A is to conclude the process as soon as possible. So that is a finite period and a short period and its history – and it has a specific provenance which was directed to avoiding prolonged and indefinite detention of people who seek protection.

That had a particular significance on two fronts.  One is that people seeking protection visas are more likely to be in detention and the second and significant aspect of is 198(1) where people in detention who, seeking protection visas, are not readily accommodated by consenting to removal - so people other than people seeking asylum who are detained - could readily ask the Minister to remove them.  In a sense, for those people other than protection visa applicants, the period of detention was in their control.  So with that history there was a very specific reason for introducing 65A.

KIEFEL J:   But even without 65A, the notion of a reasonable time for the grant of a visa under 65(1) would have to be read in the context to which you just referred and the reasonable time would be pretty short.

MR NIALL: Yes, your Honour. So it may be that even without section 65A, there is no ability to defer a protection visa application based on section 85.

HAYNE J:   That is a view that requires exploration of the history of the legislation.  I am not saying the view is wrong, but it requires exploration of the history.  At least as far as my researchers have gone thus far, I think the history is – and I will be grateful to be corrected about this – that what now is Subdivision AH was introduced into the Act by the MigrationLawsAmendment Act 1992 (Cth) which is Act 175 of 1992. The other difficulty we encounter is, of course, renumbering. The Migration Reform Act 1992 made three changes of possible relevance to the present problem. First, the Reform Act of 1992 introduced mandatory detention – introduced mandatory detention of unlawful non‑citizens. That is one change it made.

The second change which may be of relevance is that it introduces the legislative predecessor of section 65 – see section 26ZF – as introduced by the 1992 Reform Act.  That is, it introduces the binary scheme reflected in section 65 which is that the Minister must if satisfied grant, if not satisfied refuse to grant.  I think – though this may require particular attention – that what is now section 39 of the Act was introduced, also by the Reform Act of 1992, as section 26E.  That is, 39 marches on to the stage at the same time as 65 is providing binary outcome by the Minister.  The Act is requiring mandatory detention.  There is already in the Act – thanks to Act 175 of 1992 – provision for cap and 39 provides for recognition of cap by making it a criterion for grant.

But also two other features of 39 are important:  one, it does not extend to protection visas; two, it deals with the problem, or the question –use a designedly neutral term – it deals with the question presented by what is now 65 by providing for deemed non‑application in cases where grant would exceed the cap, in non‑protection visa cases.  Now, at least a question for consideration is whether, in face of that history, the cap provisions are to be understood as extending to protection visas.

MR NIALL: The construction which that history would reveal would identify the necessity to marry section 85 with the criterion in section 39, such that you would need the concurrence of both in order to make the cap effective with that construction preserving the binary outcome of section 65, which means that the effect of the cap is adopted as a criterion in (ii), 65(1)(a)(ii) of the Act.

HAYNE J:   With 39 not extending to protection?

MR NIALL:   And 39 not extending.

HAYNE J:   Now, as I say Mr Niall, the history may be wrong.  I think it is right, obviously I think it is right if I have put it to you but it may be wrong.

MR NIALL:   Thank you, your Honour.  We had not, as part of our argument, married sections 39, 65 and 85.  We have not done that.  We call in aid section 39 for a slightly different purpose, but on reflection, it may be that that is the true unity of the binary – if one can have a unified binary system, but that is the true marriage of the through, and 65 remains as the dominant provision, which avoids also, the position of indefinite sequencing that is caught up in our learned friend for the Commonwealth’s approach.

Secondly, it provides a consequence for section 85, which is this that section 85 does not really dictate or determine, other than the fact that the Minister can refuse a visa, does not determine what would happen if he simply deferred, whereas 39 completes that symmetry by simply providing that the application has taken not to have been made. That then allows the person to make another application without the prohibition in section 48 and 48A. So that it does appear that that method of reconciling 39 and 85 ‑ and 65, most importantly ‑ provides a clear route to the conclusion that protection visas are outside of the reach of 85, and we would adopt that construction.

GAGELER J:   Mr Niall, could you just restate the construction, please?  What is the relationship between section 39 and 85?

HAYNE J:   Good luck, Mr Niall.

GAGELER J:   I just did not understand.

MR NIALL:   If your Honour pleases.  Like all of these things, it may depend on the starting point, but if your Honour starts at section 65, at the time the Minister reaches a satisfaction he can only do one of two things.  He can grant or he can refuse, and that is predicated on the state of satisfaction having been formed.

GAGELER J:   That is so for any visa of any class?

MR NIALL: That is so, and the only thing that his satisfaction can be informed by are the matters set out in (i) to (iv), one of which is a criterion. Having reached the end of that process of satisfaction, he has got to make his decision. Now, 85 as a freestanding provision which provides simply the Minister determines the maximum number that may be granted, and then its effect in section 86, no more visas may be granted in the year, does not neatly address the position where the Minister reaches a state of satisfaction as to the criteria as to what he is to do. So he has reached the state of satisfaction, he is required to act under section 65, but section 85 hangs there to prevent him from granting, so it seeks to intercept.

A different way of reconciling it is that once you set the cap, the cap is implemented by virtue of a prescription of a criterion on the class of visas which sets the maximum number that can be granted, and if your Honour goes to section 39 ‑ ‑ ‑

GAGELER J:   I see, so you read the words “legislative instrument” in section 39 as a reference to the section 85 notice in the Gazette, is that ‑ ‑ ‑

MR NIALL:   That is so, your Honour, because section 39 is not freestanding by reference to the criterion.  The criterion is on the visa and then each year or from time to time the Minister sets by legislative instrument the maximum number of visas that may be granted in that year.  Once he does that, the Minister decides for the purpose of section 65 all of the visas up until that cap.  He does that to the point of arriving at a state of satisfaction under section 65.

GAGELER J:   Does that not create a tension, though, between section 39(2) and the later provisions of Subdivision AH which assume that the application will remain on foot?

MR NIALL:   Well, in our submission, if there is an assumption that the application would be on foot, it is only an assumption, it is not clearly specified in Subdivision AH.  But when one goes to section 65, what happens is that the Minister is relieved of making a decision under the cap because the application is taken not to have been made.

KIEFEL J:   Does that mean 39(2) then had the effect that it prevents the obligation to consider and be satisfied arising?

MR NIALL:   That is so, because the chapeau to 65 identifies the whole duty consequent upon after considering a valid application for a visa.  Now, once 39(2) kicks in, there is no application.  It is taken not to have been made and with the consequence that the 65 duty, the binary duty, is not engaged but it is not engaged at the beginning end because it removes from the purview of the Minister an application.

HAYNE J:   It may be usefully tested against the case of an applicant for something like a business short‑stay visa.  Let it be assumed there is a cap on the numbers.  Let it further be assumed that that person’s application falls for consideration after the cap has been filled.  It would be an unfortunate outcome for that person if that application had to be refused, for on every entry to at least some countries around this world that person would have to disclose to the immigration authorities that yes, I have had a visa application refused and the 39(2) stratagem, we have heard a lot about stratagems, deeming the application not to have been made, not only for the benefit of the administration but also for the benefit of people seeking visas from this country who are refused for reasons utterly unconnected with their personal qualities, yet they may have to disclose to immigration authorities the fact of refusal and then have to explain it.

MR NIALL:   And it would also, following on from your Honour Justice Hayne’s observation, if there was a refusal and there could not be a grant on that construction because the criterion would preclude it, section 48 would prevent applying for any other visa, other than a prescribed visa.  So the person in the queue would be the result of a refusal with the consequences, whereas 39(2) alleviates that consequence by simply providing that the application has not been made.

GAGELER J:   As I read them, sections 89, 90 and 91 will all be redundant.

MR NIALL:   Well, to take your Honours to 90, 90 has an operation because one has a cap, the hypothesis of a cap of 100.  The fact that the first in time was not considered as part of that 100 and the others have does not mean that for any purpose that consideration of disposal of the early application is unreasonably delayed.  So that works within the operation before one reaches the cap.

GAGELER J:   But you would not have the application, would you?

MR NIALL:   Well, one does before the cap is reached.

HAYNE J:   More importantly, you would not have an action for judicial review of the decision.

MR NIALL:   Prior to the reaching of the cap and ‑ ‑ ‑

HAYNE J:   Because you did not obtain the visa you sought, 89, 90 and 91, or particularly 90 and 91, I think, may be understood as boxing you out of complaining about the fact that, well, my application was in first, you did not consider it first, I should have got the visa that Smith got.

MR NIALL: Section 89 operates in a similar way because while the determination under section 85 applies, and until one reaches the cap the Minister determines the order of address of the number of applications he has on the books and he will not have granted or refused to grant a visa and 89 immunises him from an attack on the basis that it has been a failure to make a decision, the applicant ‑ ‑ ‑

FRENCH CJ:   Under what was then Part 8.

MR NIALL:   Yes, your Honour.  The references to “unreasonably delayed” and “failure to make a decision” - your Honours will see it in 47, 51, 89 and 90 - have to be read by reference to historical relic of the Act.  They can be given current work.  Your Honours, we have provided a copy of Part 8 of the Act ‑ ‑ ‑

FRENCH CJ:   But all that came in as part of the package around the same time, the merits review process and the ‑ ‑ ‑

MR NIALL:   That is so, your Honour.

FRENCH CJ:   Confined grounds for judicial review and so forth.

MR NIALL: The position in relation to Part 8 of the Act, which was the judicial review provisions - and your Honours will remember these provisions in Part 8 - this was the law, or the Act I should say, until 2 October 2001 and in October 2001 the privative clause regime of 474, which remains in effectively the same form, was introduced. What happened in section 477 was that there was an order for review, 477(1), where there was no provision that specifies a period within which a person is required to make a decision there had been unreasonable delay. Subsection (2) dealt with a provision which specified a time period and no decision within it.

That operation, unreasonable delay, which is reflected in 51 and 90 and 91, 51 being the primary order of consideration for the Minister when he or she has a visa; 90, 91 dealing the cap circumstance; that continued until the current Act was amended – or the current form, which is 474, and a different form of review was available from 2001 which was to define a privative clause decision to include (3)(j), “a failure or refusal to make a decision”.  So, whereas up until 2001, the statutory phrase “unreasonable delay” had a particular statutory consequence, thereafter it was simply evidence of a refusal or a failure to delay for which mandamus would issue, either under 75(v) in this Court or the cognate jurisdiction in the Federal Magistrates Court.

The construction which I have just embraced would have the result that the cap regime simply does not apply to protection visas. The construction we have advanced in writing has the same consequence and similar approach, namely to – and if I could just briefly outline that – is that prior to the insertion of 65A what was clear was that section 41 – section 47 imposed a duty. Section 51 imposed a discretion on the Minister to:

consider and dispose of applications for visas in such order as he or she considers appropriate.

Section 63 – if your Honours do not have it, it was included in the supplementary bundle which was provided to your Honours immediately before lunch – provided, subject to various provisions which prevented the grant:

the Minister may grant or refuse to grant a visa at any time after the application has been made.

Then 65 itself:

After considering a valid application for a visa, the Minister . . . 

is to grant the visa; or

(b)if not so satisfied, is to refuse to grant the visa.

Then 65A operated in that context.  So prior to 65A, the Act gave a high degree of flexibility to the Minister to determine the time at which a decision would be made, the priority with which the Minister would attach to the various visas and the order of consideration.  That remains the case for all visas other than section 36 visas.  So it was not unbounded, as I submitted a few moments ago.  It was limited only by unreasonable delay up until October 2001 and then mandamus thereafter for, effectively, constructive refusal.

It was in that context, in our submission, that section 65A was introduced and, in our submission, section 65A qualifies and applies to all of the general provisions to which a valid application is subject.  So it qualifies 47.  It qualifies 51 and it qualifies 63 and 65.  So the entire process – whether one looks at the cap or not – is now qualified by section 65A.  It is important, in our respectful submission, that none of those general provisions express themselves as to be subject to 65A.  Our learned friends make much of the fact that 39 is subject to an express exception for section 36.  But all of the general provisions that go to processing do not say “subject to section 65A”, for example, section 51 which says the Minister can assert – can determine:

consider and dispose of applications for visas in such order as he or she considers appropriate.

That power is plainly subject to section 65A.  So nothing can be drawn, in our respectful submission, by the failure to mention, in any of the provisions, including 85 that it is not subject to section 65A.

The question then becomes, given the conflict between 65 and 85, and 65A, how is it to be resolved?  It is either to be resolved through sections 39 and 65 or alternatively it is to be resolved by giving 65A primacy as a lead provision and in our outline of oral submissions we set out why we say it should be given primacy in paragraph 9.  The reason 65A is a primary or leading provision is that it is specific, it is later in time, it is expressed as a duty, it importantly limits the power to detain and it is part of an overall pattern by which protection visas have temporal time limits. 

Can I just give your Honours a reference to it?  Your Honours, in relation to protection visas the time limits are 65A, 414A – 414A is the RRT provision – and there is another time limit which picks up AAT review and that is 500(6L), and that is a different time limit, but it is a time limit of 84 days because some of these decisions for protection visas or character provisions can end up in the AAT, but not just protection visas.  So it is clear as a scheme, unique, that protection visas are time limited and that should inform the hierarchy of provisions. 

I should note, just for completeness, there is one other provision, which is not in the bundle, which is section 75 which deals with bridging visas in detention.  It provides a time limit in a different way.  It says that if you are in detention the Minister must decide the application for a bridging visa within the prescribed period or is deemed to have granted it.  That is section 75, but that has a particular reason.

For the reasons we have put in writing and for those reasons the cap is invalid.  Can I briefly say something about relief?  If the cap is invalid, we are entitled to, in our respectful submission, the declaration which we identify in paragraph 71 of our written submissions.  We also seek a writ of mandamus directing the first defendant to consider and determine the plaintiff’s application for a protection visa according to law. 

I just need to draw one factual matter to your Honours’ attention.  Your Honours will see from the special case that on 22 April the Chief Justice set aside the primary decision based on a jurisdictional error ‑ your Honours will see that in the supplementary special case book at page 41.

When one looks at section 65A, the 90 day time limit starts on the day the application was made or, if it is remitted by any court, the day on which it was remitted.  So the position for my client on the remittal is that it may be now – it looks to be the case, although there was not an order of

remittal, there was an order of certiorari – that the 90 day period has not expired. 

But it is clear, in our respectful submission, that the decision has not been made based on the cap and, therefore, mandamus should go because it has been refused to be made by reference to a cap which on this hypothesis is invalid, bearing in mind that 65A identifies the outer limit but the duty has to be formed within that period and if the Minister forms a state of satisfaction directed to those criteria, he is required to grant the visa and the only matter, we would submit, the only impediment was the cap, but if mandamus does not presently lie, the declaration ought issue.

GAGELER J:   So are you saying that there has been a constructive refusal to exercise jurisdiction?  Is that the basis of mandamus?

MR NIALL:   That is so, notwithstanding the processing had come to an end, by reference to the existence of the cap.  That is, the cap was the impediment to the grant.  That removed, mandamus should issue.  Alternatively, if the material does not establish constructive failure, a declaration should issue as to invalidity.  Finally, in relation to costs, the position is that the special case only identifies costs of the special case, unlike the form of the special case in S297, we respectfully invite the Court to remit the question of costs of the balance of the proceeding to a single Justice of the Court, if the Court pleases.

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

MR DONAGHUE: Your Honours, can I approach our oral submissions in three parts, focusing first on the main question in the case concerning the constructional issue relating to section 85, second on the Legislative Instruments Act point and third on the improper purpose point, that being the order suggested in the outline that has just been given to your Honours.

Accepting that there are various possible entry points into the issues, in our submission, as this proceeding is a challenge to an exercise of power under section 85 on 4 March an appropriate starting point is section 85, and I appreciate your Honours have been there already, but if we could start there. It is, in its terms, a power to make a determination of the maximum number of visas of a specified class without any word of limitation or exception.

It invites attention to the question, what does the Act mean, when it uses those words “specified class” and, in our submission, the only reasonable answer to that question is provided by section 31 of the Act, which deals with classes of visa.  In subsection (1) it refers to “prescribed classes”, classes granted by the regulations, subsection (2):

As well as the prescribed classes, there are –

the various identified classes of visa created by the Act. Then in subsection (3) it refers to the prescribing of criteria for “visas of a specified class”, the same phrase used in section 85, which is said, without limitation, expressly said to include the various classes of visa created by the Act, including section 36. So, that is a context in which the phrase “specified class of visa” is used expressly to extend to the relevant category of visa that your Honours are now concerned with.

There are other provisions in the Act including sections 40 and 41, which are general provisions about first prescribing conditions in relation to specified circumstances concerning visa grants and in 41, conditions on visas, which likewise are expressed in the general language of a power to do things with respect to a specified class of visas and we submit it would be most surprising if those powers did not extend to all of the classes of visas under the Act, either created by the Act itself or by the regulations.  So we submit that one can see through a number of different provisions of the Act that phrase “specified class” being used and it is not used in a way that excludes, as a matter of ordinary language, any particular class of visas. 

As my friend, Mr Lloyd, very fairly put in answer to a question from your Honour Justice Gageler, there is the additional indication in sections 34 and 35, 34(3) and 35(4), that those two classes of visa were not to be subject to the provisions found in Subdivision AH, that being 85 and following, which is a further indication that the phrase “specified class” in section 85 was otherwise thought by the Parliament to extend to at least those two classes of visa, being the two classes of visa in the Act immediately preceding the protection visa provisions.

From there, your Honours, if you could go back to Subdivision AH to section 87, you will see in section 87 and 87A, but it is sufficient for our purposes to focus on 87, that Parliament has directed its mind to a category of case in which it does not want section 86 to apply and it has done so in express terms. So, in our submission, that provides some indication that there was an awareness on the part of the legislature that this provision might operate to prevent the grant of visas in circumstances where that might be undesirable, and that was dealt with expressly in the terms of that section. While we accept that none of that is – sorry, your Honours, I withdraw that.

The other significant contextual factor, in our submission, is that there are many occasions in this Act where Parliament when it has not wished a particular provision to apply to protection visas, where it says so in terms.  Your Honours have already seen section 39, and I will come back to section 39 in a minute.  We have listed these provisions in footnote 14 of our submissions, but just to give your Honours some examples, if you go to section 41 of the Act, 41(2)(a), this is regulations providing that:

a visa, or visas of a specified class –

that phrase again –

are subject to:

(a)a condition that, despite anything else in the Act, the holder of the visa will not, after entering Australia, be entitled to be granted a substantive visa (other than a protection visa, or a temporary visa of a specified kind) ‑

So the power is limited in express language.  In section 72(2), which is bridging visas, there is particular provision made in respect of protection visas, particularly in paragraph (d).  In 195(2) of the Act, which is dealing with applications for visas by detainees, subsection (2) again creates a limit on the making of visa applications, again expressly excluding protection visas and bridging visas.

KIEFEL J:   But the other side of that coin is that it tends to underscore the fact that the statute sees a distinction between protection visas having certain consequences.

MR DONAGHUE:   It sometimes does, your Honour.  There are some occasions when that distinction is recognised and there are other occasions when it is not.  In our submission, the fact that Parliament does sometimes expressly address the matter is a proper matter that your Honours should have regard to in deciding whether, in a provision expressed in completely general language, such a limitation is to be read in or implied.

That is a factor on which we particularly rely in the context of section 39 of the Act and, in that regard, can I invite your Honours to turn to that provision but also direct your Honours’ attention to footnote 15 in our submissions where we identify the Acts that introduced both section 39 and section 85. In that respect, your Honour Justice Hayne, it is necessary to qualify the third of the provisional indications of legislative history that you put to my learned friend, Mr Niall, because, as we understand the history, section 39 came first. It was introduced commencing from 15 January 1992, so pre the commencement of the Migration Reform Act provisions which introduce section 65, and prior to the enactment of section 85 which came at the end of the same year in December 1992 by reason of the Migration Laws Amendment Act.

HAYNE J:   What were the laws that introduced the two provisions?

MR DONAGHUE:   What were they, your Honour?

HAYNE J:   Yes, what names?

MR DONAGHUE:   What names?  The Migration Amendment Act (No 2) 1991 introduced what is now section 39 which was section 23, (3A) and (3B) – they were the two subsections – and section 85 was the Migration Laws Amendment Act 1992, which inserted what was then 28A, which became 85 and 28B, 28C, et cetera, were the provisions now found at 86, 87, et cetera – the whole of Subdivision AH was introduced by that Act commencing at the end of 1992.

FRENCH CJ:   I think there was a precursor to 85 introduced in the 1989 amendment, section 11J, which provided for suspension of processing by notice in the Gazette.

MR DONAGHUE:   Yes.

FRENCH CJ:   A rather similar structure to 85 but a slightly different mechanism.

MR DONAGHUE: Yes. Well, your Honour will now see that section in section 84, and that is also significant, we submit, because 84 is very much the blunt instrument, in that where that power is exercised, everything stops. So, unlike 39(2), it is not deemed never to have been validly made, but there is an absolute general down tools, so that the capacity to continue, for example, with refusal decisions or to continue processing steps falling short of the grant or refusal of a visa, is prevented by 84, and you see in the extrinsic material that leads to the enactment of section 85 a recognition that we have this power in 84 but it has never been used and it is too blunt and so that is the explanation for the introduction of Subdivision AH. But what that history shows, in our submission, is that ‑ ‑ ‑

HAYNE J:   Just before you part from the history, do you accept that 26E of the Migration Reform Act 1992 is also a legislative progenitor of section 39, or is it 85?

MR DONAGHUE:   Your Honour, can I take that question on notice?  I do not have that section in front of me, and I do not want to mislead your Honour.

HAYNE J:   Yes.

MR DONAGHUE:   So we have in that history ‑ ‑ ‑

HAYNE J:   Sorry, my question is precise:  it is a progenitor of 39.

MR DONAGHUE:   Of 39?

HAYNE J:   Of 39.  It is noted as such in the notes at the back of the Migration Act, it seems, on its face, to be substantially similar in text to 39.  It may be that you can trace it back further to 23A and 23B, I am not expressing any opinion about that, but my question relates ultimately – so, that you may consider it and answer me tomorrow – is, what are we to make of the relationship of the provisions as they are inserted in the 1992 Reform Act, recognising that AH had by then – or, its predecessor – had by then been enacted.

MR DONAGHUE:   Well, both AH and 39, in our submission.

HAYNE J:   There is the point, is it not?  We can debate this tomorrow when you have had an opportunity to look.

MR DONAGHUE:   Yes.  What I can tell your Honour is that I have looked at the text of those two provisions that I identified as the precursors of section 39 and they are virtually identical.  So it may be that they flowed through 26E and then flowed on to become section 39 but, in our submission, what is clear from the history is that there was the facility now found in 39 to prescribe a criterion for a class of visa other than a protection visa expressly in terms, which then has the consequence that your Honours have looked at in section 39(2).  Subsequent to that, we get the regime now found in Subdivision AH. 

We submit that that history is a major impediment to the proposition that one should run those two provisions together in the way that we understood Mr Niall to be doing. The submission – and we will look at the transcript overnight because it is not a submission that has been put previously – but it appeared to us to be a suggestion that the exercise of power under section 85 is to be read, in effect, as the prescription of a criterion under section 39.

That cannot be right.  If those sections came into existence at separate points in time having distinctly separate operations and, indeed, one consequence of the submission would be that – it would seem to us at least – large parts of Subdivision AH are otiose, certainly, there would seem to be little room for 86 to operate if 85 is to be understood as engaging the consequence in 39(2), rather than the consequence in 86.

Your Honours, we submit that in the context of Parliament having looked at the question can there be numerical limits on particular classes of visa, having excluded the capacity to impose a numerical limit with respect to protection visas in section 39(1) and having later in the same year returned to the same question with a rather more nuanced set of provisions now found in AH and not excluded protection visas, what our friends are asking your Honours to do is to engage in a task that goes well beyond the boundaries of the proper construction of these provisions. Your Honours are being asked to hold, in effect, that Subdivision AH and sections 85 and 86 are subject to a limitation that is not apparent in its terms and that is apparent in a provision that serves a very similar role.

They ask your Honours to engage in that task principally, in our submission, by reference to two forms of reasoning.  One is a form of reasoning that invites your Honours to take as a premise propositions about the impact on the detention of protection visa applicants that is said to flow from the operation of Subdivision AH in accordance with its terms, and while not put expressly in these terms, it appears to be an attempt to engage with some structural features of the Act with which your Honours are well familiar, but if I could just identify what I am talking about so that there is no uncertainty.

As your Honours know, sections 13 and 14 create a binary division between lawful and unlawful non‑citizens, lawful non‑citizens being non‑citizens with a visa, unlawful non‑citizens being everyone else.  Since the Migration Reform Act 1992 commenced in 1994 there has been a mandatory detention regime for all unlawful non‑citizens, so the consequence that the refusal or delay of the grant of a visa might have for the detention of an unlawful non‑citizen is structurally exactly the same whether the applicant applies for a protection visa or any other category of visa.

There is no way structurally within this regime that a distinction can be made in the operation of section 85 which says the operation of a cap for protection visas will extend your detention, but that will not be so for other applicants. In respect of all non‑citizens the consequence is the same. If you do not have a visa you are detained and whether or not you are detained depends entirely upon the way other powers in this Act have been exercised with respect to you.

So some visa applicants will have bridging visas, others will not.  Some will have applied for particular visas when they already hold another visa of the same or a similar class.  One cannot start from an assumption that says an applicant for any category of visa will or will not be detained or is more or less likely to be detained than any others. 

Now, it is said protection visa applicants, your Honours should - it seems as a matter almost of judicial notice - you should assume that they are usually detained or more often detained than other categories of visa applicant.  If your Honours have a look in the special case book in S297, volume 2, at page 403, this is a document that Mr Lloyd took your Honours to for a different purpose and I am really using this just as a document in the special case that provides some factual indication of the point that I am trying to make.  You will see in paragraph 9 that there is a reference to the fact that:

As at 6 December 2013, there were approximately 5200 on‑hand IMA PPV applications.  As at 18 December 2013, 51 of these applicants were in immigration detention facilities and a further 295 were in community detention.

I accept that is detention. But that all up is a figure of less than 350 of the 5,200 applications then on foot were in immigration detention. The very substantial majority of protection visa applicants, as at that point in time, just to illustrate the point, were not in detention and so the operation of a cap under section 85 in respect of protection visas would have no consequence whatsoever for the detention of those visa applicants.

BELL J:   But for those who are in detention - those who are making claims to protection are in a different position to others who are in detention and who can request to return to their country of nationality.  That is the point that the plaintiffs make.

MR DONAGHUE:   I am not sure, with respect, your Honour, that the point the plaintiffs make is confined just to that.  Our friends ‑ ‑ ‑

BELL J:   Well, let it be confined just to that.  There is some significance respecting those persons who are in Australia making a claim on Australia’s protection obligations, who may be subject to detention, whether they are or are not will depend on decisions not of their own making and assuming that their claims to engage Australia’s protection obligations have substance, because if they do not the Minister can, regardless of the cap, make the determination to refuse, so let us assume that the claims have substance ‑ ‑ ‑

MR DONAGHUE:   Yes.

BELL J:   ‑ ‑ ‑ then the circumstance is it is not reasonable to consider that there is anywhere to which they can go.

MR DONAGHUE:   In practical terms, that is likely to be so.

BELL J:   Yes.

MR DONAGHUE:   Making all of those assumptions and with respect to that group of people.  I say “in practical terms” because there appears, in some parts of our friends’ submissions, to be an assumption that that proposition would be right in legal terms and we do not accept that.  There is, in our submission, no reason that your Honours should accept that the power under 198(1) to remove a person who asks to be removed, would not extend even to persons in the category that your Honour Justice Bell puts to me.

HAYNE J:   Mr Donaghue, you should know, for what little it may be worth, I am not persuaded much by an argument that says that there are only a few who are detained.  It is a remarkable proposition for the Minister to put.

MR DONAGHUE: Your Honour, I hope that I have not put the submission in terms that are open to being misunderstood. My submission is that, in this Act, Parliament has enacted, for right or for wrong, a mandatory detention regime subject to a decision being made to lift that detention. My point is, and goes no further than this, that if your Honours are to be asked to carve out from a section that is expressed in terms that makes no distinction between different visa classes, an exception for a class of visa because of the consequence that is said to have for detention, it is necessary for there to be a logical nexus between the class that is to be carved out, and the exception that is to be read into section 85.

In our submission, that logical nexus does not exist. If your Honours were to find that section 85 does not extend to protection visas because of the consequence that has for detention, there would be no alignment between the exception that your Honours would be making – recognising in section 85, and the objective that your Honours were seeking to achieve by reading the provision in that way. That is all that I seek to say. But the figures, as your Honours can see them on that page, do not suggest that there is, as a practical matter, any alignment of the kind that seemed to be assumed in the submissions that – some of the submissions ‑ ‑ ‑

FRENCH CJ:  Your submission is, as I understand it, it does not matter whether there are a lot or a few, there is nothing in the structure and text of the Act.  We focus our eyes on that universe only.

MR DONAGHUE:   Exactly, your Honour.  Structurally, everyone is detained unless they have a visa and that is so whether they are a protection visa or other applicant.  Everybody who applies for a visa that is subject to or affected by a cap will be detained for longer because of that operation of the cap, unless they have a visa that has been granted under some other provision. 

So the detention consequence of the cap – if there be one – does not provide a foundation for a reading of section 85 that excludes protection visas but allows it to apply to everything else. If the submission proves anything, it proves much more than our friends are seeking to prove by it because it cannot be limited to the protection visa category that they seek to use to confine the operation of section 85.

Your Honours, if one moves from there to the issue of the relationship between 85, 65, 65A and the other provisions of Subdivision AH, can I ask your Honours to start with section 65 itself and to posit – as I think Justice Hayne suggested – a business visa application or an application for a category of visa other than a protection visa.

If such an application has been made validly we, of course, accept that the Minister is under a duty, in the ordinary course of things, by reason of section 47 to consider that application and to make a decision on it, under section 65. We also accept and, indeed we rely on the proposition advanced by Mr Lloyd by reference to your Honours’ decision in Shahi v Minister for Immigration.

Mr Lloyd took you to the case, I do not need to go back to it, it is (2011) 246 CLR at 163, relevantly at paragraph 28, where in a joint judgment of four of your Honours, your Honours held that, notwithstanding the fact that the visa there in question was a visa not covered by 65A, there was nevertheless to be discerned in the Act a requirement to make a decision within a reasonable period of time. We accept that is so.

So, in the case of the hypothetical business visa, in a situation where there is no cap, there is an obligation to consider that application, there is an obligation to make a decision with respect to that obligation within a reasonable period of time and in the event that a mandamus application were to be brought to enforce that duty, a Chapter III court, looking at the question would have to find what was a reasonable period of time, and if a reasonable period of time had passed without a decision being made, then mandamus could issue to enforce that duty – the duties are there.

GAGELER J:   It is not reasonable in the abstract.  It is reasonable within the context of the statutory scheme as applicable to that class of visa.

MR DONAGHUE: I entirely accept that, your Honour, and therefore the question of whether or not a reasonable time had passed would be informed, for example, by section 61 which deals with prescribed periods for different steps and it might be that particular criteria would mean that longer periods of time could pass while considering an application for one kind of visa than for another. But at some point, in my submission, in the context of the particular class of visa that is being sought you would reach a stage where there would be an enforceable obligation to decide “yea or nay” on the visa application. If there is a determination under section 85 of the Act with respect to the category of short stay business visas then, if Subdivision AH is to do anything, in our submission, it must negate that duty that would otherwise arise.

KIEFEL J: Does that ignore the effect of section 39 working with sections 85 and 86?

MR DONAGHUE: Well, your Honour, in my submission, it does not ignore it but it does not accept that that is how those provisions work because, in my submission, a determination under section 85 is a determination that engages the operation of section 86. It is not the prescription of a new criterion for the visa that is the subject – so it is an exercise of a different kind of power with a different consequence.

If it were the prescription of a class of visa under section 39, then when the limit is hit the consequence under 39 would be that the visa was taken never to have been made.  That is one way you can proceed, but not for protection visas.  But, in our submission, any specified class of visa, if the determination is made and 86 is ever to do work, we submit the only work it can be doing is to stop the grant of a visa under section 65.

KIEFEL J:   But the reference to a criterion in section 39 is by way of achieving the result stated in 39(2), is it not, that applications:

are taken not to have been made.

So that the potential for clash between the obligation to grant in section 65 and the obligation not to, by 86, is overcome by withdrawing the obligation.

MR DONAGHUE:   Well, in the context of that mechanism, that is so, but there are, in our submission ‑ ‑ ‑

KIEFEL J:   But if that mechanism – if the three work in that way, does not the exception of the protection visa in 39 assume some importance, in relation to 65 and 86?

MR DONAGHUE: But, your Honour, if I understand the proposition your Honour is putting to me, it is that when a determination is made under section 85 it only has consequence via the mechanism prescribed by section 39. I have I understood ‑ ‑ ‑

KIEFEL J:   No, rather that sections 39(2) and 86 must be read together, and that section 39, for all visas – except for protection visas – is in aid, section 39(2) is in aid of what is set out in 86.  So if 86 is saying, in spite of

65 you are not to grant, that leaves questions about the obligation – what happens with the obligation and 39(2) answers it and says there is no obligation.

MR DONAGHUE: Well, 39(2) would ‑ your Honour, I do not accept that the provisions are to be read together and partly I do not accept that because were that to be so, were the determination under section 85 to feed in in that way, then the application is taken never to have been made and there would therefore be no occasion, for example, in section 88 to say that it does not prevent any other action in relation to an application because there would be no application in respect of which any other action could be taken. Similarly, 90 and 91 ‑ ‑ ‑

KIEFEL J:   Well, 88 might relate to a refusal.

MR DONAGHUE:   Your Honour, if the cap has been reached, there is no application.

KIEFEL J:   But it might permit the processing of the application without the decision‑making process having been engaged.  So enquiries can be made and all of that happen in the time in which from financial year to financial year that the cap is in existence.

MR DONAGHUE:   Your Honour, as we read section 89, when section 89 is engaged once the cap is reached – sorry 39 – whereas under Subdivision AH, the steps your Honour was referring to could continue to take place, the effect of reaching the cap is automatically to deem the outstanding application never to have been made.  So the further steps that your Honour is referring to, in my submission, would have no foundation in the Act any longer.  There would no longer be an application which could engage all of the divisions which ordinarily attract the processing and decision‑making edifice that the Act creates.  In our submission, there are three quite different ways that this Act disengages an obligation to make a decision when a numerical level is hit.

In 39, it deems the application never to have been made.  In 84, it just stops any processing of any kind and in 85, it stops grant in the financial year.  While 39(2) is a mechanism that can achieve the prevention of a decision under section 65, if I am right that Subdivision AH is not to be read with section 39, this subdivision can never do any work unless it is capable of overriding the implied obligation to make a decision under section 65.

FRENCH CJ:   That might be a convenient moment, Mr Donaghue.

MR DONAGHUE:  If your Honour pleases.

AT 4.15 PM THE MATTER WAS ADJOURNED UNTIL THURSDAY, 15 MAY 2014