Plaintiff S4/2014 v Minister for Immigration and Border Protection

[2014] HCATrans 162

[2014] HCATrans 162

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S4 of 2014

B e t w e e n -

PLAINTIFF S4/2014

Plaintiff

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Defendant

THE COMMONWEALTH OF AUSTRALIA

Second Defendant

FRENCH CJ
HAYNE J
CRENNAN J
KIEFEL J
KEANE J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 13 AUGUST 2014, AT 10.18 AM

Copyright in the High Court of Australia

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

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

FRENCH CJ:   Yes, Mr Lloyd.

MR LLOYD:   I propose to address the Court according to the eight headings in our outline of argument.  The factual materials are contained in the special case.  Where an inference is sought, we will identify that.  The first proposition we speak in favour of is that the decision to consider under section 46A(2) resulted in detention being prolonged for the purposes of that consideration.  It is an agreed fact that by reason of the protection obligation determination process, also called the POD process, established by the Minister that the Minister had decided to consider whether or not to exercise the power under section 46A in respect of the plaintiff.

If I can just make it clear how one gets to that conclusion; in paragraph 9 on page 2 of the special case, there is a reference there to the RSA process, which was the process considered in M61.  In paragraph 10, there is a reference to the POD process, which replaced the RSA process.  We say that the differences are very small.  We elaborate on the similarities in paragraphs 18 to 32 of our written submissions.

We handed up this morning a coloured document which can be found in a non‑coloured form on pages 18 and 19 of the special case book.  It was an attachment to a press release by the Minister, and one sees that on page 17 of the special case book, and it shows the differences and, more particularly, it shows the similarities.  So the first four columns are identical.

In the fifth column, under the Refugee Status Determination Process, there was a position whereby an assessor would make an assessment, if it was positive the person would be referred off to the Minister with the view of being allowed to make an application for a permanent protection visa, if it was negative then there was scope for an independent merits review, which is in the sixth column.

HAYNE J:   Why do any of these differences matter, Mr Lloyd, in the face of paragraphs 12 and 13 of the special case?

MR LLOYD:   We say they do not matter.  We say that they are almost identical.  We are just seeking to make the point that they are almost identical.  The only real difference is that under the new scheme if the assessor was inclined to not make a quick, positive decision that the person was a refugee, it would automatically go to the reviewer, whereas under the old scheme the assessor would make a negative determination and then there would be scope for an application for review.

HAYNE J:   Again, what does that matter?  There was a quick decision here, this man was found, very promptly, to be owed protection obligations.  Why are we concerned with these other aspects?

MR LLOYD:   I had not apprehended that – perhaps I am wrong about this – that the Minister necessarily accepts that the schemes are the same so that the reasoning in M61 would apply, and I am just making the point that we say the schemes are materially the same, so that the reasoning in M61 does apply materially.

FRENCH CJ:   In any event, you say that the Minister had an obligation to complete the 46A process by determining whether or not to lift the bar?

MR LLOYD:   Yes, I will come to that.  That is the second and third of my eight propositions.  If I just note for the reference of the Court, a couple of further references which support the view that what the Minister was doing under the new process was setting up the process according to which if a person was determined by an assessor or reviewer to be a refugee, it would be referred to him, and then he would decide whether or not to lift the bar to the right to make a protection visa application.  One sees that in a statement by the Minister which is set out on page 7 of the special case, from about lines 10 to 20, and one also sees it in a press release of the Minister at the same time on page 16, at about lines 22 to 27, starting:

Under the new streamlined system, irregular maritime arrivals whom a departmental officer concludes clearly meets the criteria for protection under the Refugees Convention will be considered for the grant of a protection visa.

Then the policy manual begins on page 20. If I just refer to page 24, at the top of page 24, at about lines 3 to 10. The close connection between the two schemes is referred to there and the critical criterion was whether or not the person met section 36(2) of the Migration Act. That is the essential investigation that was being made, and one sees the changes as being minimal as well on page 33 at about lines 23 to 27 where it is said:

following Plaintiff M61/2010E,the High Court determined that certain provisions in the Migration Act apply to the RSA and (as a consequence) the POD process.

So it was understood, we say, that the changes, such as they were, to the review scheme, did not change the effect of M61.

HAYNE J:   If we are looking at the procedures manual, it is necessary also to look at page 58, paragraph 40, I would have thought, at line 45 and following.

MR LLOYD: That is so. So the system was, if a positive evaluation is made, that it be referred to the Minister. There is a reference there to Annex 7, which is further in the documents, which shows what was intended would happen, following a favourable assessment, which is ‑ I will see if I can find that reference to Annex 7 – thank you, I thank my friend, it is page 108 – so that is the kind of letter that it was envisaged, 108 over to 109, would be sent out to allow someone to make an application for a protection visa. If the person’s assessment under section 36(2) was unfavourable, then on page 60 at paragraph 43.3, it says:

All claimants who receive a negative merits review ‑

so that the presumption is the person has applied, they have not been seen to be instantly a refugee, so they are referred to the reviewer automatically.  Then if that is negative then “All claimants” ‑ this is at about line 28:

who receive a negative merits review outcome are automatically referred for an ITOA ‑

and that is, in a sense, a test to see if any of Australia’s other non‑refoulement obligations are engaged. If that was to be the case, then on page 61 there is what we think is the only reference to section 195A in the manual, that 195A could be used to grant a visa at that point in time.

CRENNAN J:   Is it your case, Mr Lloyd, that insofar as the purposes of the plaintiff’s detention were for considering the exercise of powers under section 46A and 195A, is it your case it is the 195A powers and their exercise only come into play once the section 46A exercise is exhausted or concluded?

MR LLOYD:   What we say, which I think is our sixth point, is that the 195A process could be lawfully engaged if it did not involve what we say is an unlawful termination of the 46A process.  So if, for example, there was a grant of a visa – any visa other than a temporary safe haven visa, that would amount to a lifting of the bar to apply for a protection visa and there would be no problem with that being done at any time.  If there was a grant of a temporary safe haven visa coupled with a decision that the person’s claims to be a refugee would continue to be assessed and that the new 91L bar would be raised, then that also could be characterised as not involving an adverse determination of the 46A process.

HAYNE J:   Is there – complete your answer to Justice Crennan.

MR LLOYD:   That is what happened, we say, in M79, that was the circumstance there, the Minister had indicated to the Court that the process was – that although the temporary safe haven visa was granted the assessment of whether or not the person was a refugee would continue and if there was a favourable determination the 91L bar would be raised. What we say cannot be done under section 195A is to unlawfully terminate the obligation to carry the 46A process through to its ultimate conclusion on the criteria specified at the beginning of that process.

HAYNE J:   Is there anything in the special case that shows that at any time this man was detained for the purposes of considering of exercise of power under 195A?

MR LLOYD:   Insofar as ‑ the page I took your Honour to, it was paragraph 61 ‑ that 195A was a part of the POD process if he had not been a refugee there would have been a consideration as to whether or not there were other non‑refoulement obligations, and insofar as that was part of a process from the beginning it could be said that 195A was engaged at that point.

HAYNE J:   In the events that happened then, Mr Lloyd, is there anything in the special case which shows that this man was ever detained for a purpose of consideration of 195A?

MR LLOYD:   No, I do not think I can say that.

HAYNE J:   The answer has to be no.

MR LLOYD:   No, I think so.

FRENCH CJ:   In respect of other non‑refoulement obligations, that is other than those which would enliven section 36(2)(a), the process of consideration of a visa that might respond to those obligations can still fit within the framework of 46A, it does not have to be referred to 195A, does it, and 91L?

MR LLOYD: As I recall, at the time this POD process was created in 2011 it was before the complementary provision aspect of section 36(2)(aa) had been inserted, so at that point in time the only way to deal with the non‑refoulement was in that additional step. As I understand it, after section 36(2) was amended to include the complementary protection provisions it then, in effect, merged into one process, although the manual itself did not change.

FRENCH CJ:   You mean there was no relevant visa for which you could apply if the bar were lifted under 46A and if you did not meet the criteria for a protection visa responding to the Refugee Convention?

MR LLOYD:   Yes, so at that initial point in time there was no particular visa for which you could apply, but part way through in 2012 there then was a visa, and then from that point the lifting of the bar was, I think, what was envisaged but the policy, I accept, did not change.  So returning to the special case, the POD process being that what it is, then paragraph 12 indicates an agreed fact that my client had entered – well, entered as an agreed fact that the Minister had decided to consider people who were offshore entry persons who arrived after 1 March 2011 and that in conjunction with paragraph 6 that included my client.  So we say that he was – the POD process was then potentially involved in the exercise of power under 195A only but essentially he was detained for the purposes of consideration under 46A and prolonged for that purpose.

Then of course, as indicated in paragraphs 17 and 18, he was somebody who was found to be a refugee at the very first stage.  He did not have to go through a review process; he was a clear refugee, at least in the mind of the assessor.  Then, the second proposition we advance is that once a decision to consider had been made by the Minister and an assessment that the plaintiff was a refugee made under the POD process, the Minister had to decide to exercise the 46A power, or not.  He had to make a decision under section 46A(2).

We submit that section 198(2)(c) can be seen as authorising detention of a person pending consideration under 46A, and M61 said as much.  This Court has held that for detention to be lawful, the consideration should be reasonably prompt.  In M76, an expression to that general effect was used by your Honour the presiding Judge – I should say for the record, that is (2013) 88 ALJR 324 at paragraph [28](v) and paragraph [30]. Justice Hayne used an expression to that general effect in paragraphs [93] and [100], and Justices Crennan, Bell and Gageler at paragraph [140].

We say the first thing is that there is clear authority that the assessment under 46A process has to be done reasonably promptly.  Once a decision to consider had been made it is then, we say, irrelevant that under section 46A(7) the Minister need not have considered the exercise of the power in the first place.  Again, in M76, in the joint judgment of Justices Kiefel and Keane, the notion that that is beside the point is said in paragraph [229].

My friends in their submission cite a passage from [229], the words, I think, “the minister was under no duty to decide to lift the bar” or something to that general effect.  We say when one looks at it in context, what their Honours were saying – and this aspect of the decision was joined in by Justices Crennan, Bell and Gageler – especially looking at paragraph [230], is that they were seen to be irrelevant once a decision had been made to consider that there had been no obligation previously to consider.  Then in [230], their Honours did not consider it necessary to consider, as it were, the next issue, which is what happens once a decision had been made.  In the decision of the Chief Justice, at paragraph 24 on page 333, about three lines from the top of the page, he said:

The defendants submitted that by reason of s 46A(7) the Minister could terminate the process of consideration at any time.  That proposition should not be accepted.  Once the Minister has decided to consider whether or not to exercise his power under s 46A(2), he must decide to exercise it or not to exercise it.

KIEFEL J:   Do you say that these statements continue to apply where a person is taken out of detention?

MR LLOYD: What we say is that on the basis of these statements and the next set of statements, we say that the Minister was bound, when a matter has been referred to him on the basis that somebody is a refugee, to consider exercising the power under 46A(2), and to consider it on the criteria that he said he would consider it under at the time the person was put into detention, and that that is an enforceable duty; we say that. Now, at that point in time, we say that duty was extant when the Minister purported under section 195A to grant a temporary safe haven visa that would let him out of detention. We say that that decision amounted to an unlawful decision not to complete the section 46A process and, therefore, was invalid.

KIEFEL J: Do you contend that the decision under section 195A was undertaken for a purpose other than that which is authorised by the Act?

MR LLOYD:   We contend two things about that for why it is invalid.  One is, we say, that in circumstances where the Minister had – as we will come to – accepted that the person was a refugee, he was bound at that point in time to lift the bar to allow a protection visa application, and what he did was decide not to lift the bar to allow a protection visa application ‑ ‑ ‑

KIEFEL J:   And to create another bar?

MR LLOYD:   And to create another bar – and we say that is unlawful.  Secondly, we say, in a sense, in any event, or perhaps in the alternative, that it was a denial of procedural fairness to grant the temporary safe haven visa to my client who, at that point in time, had an enforceable right to have the bar lifted – or at least to have a decision made on whether to lift the bar – and he was denied procedural fairness, and so for that reason too the granting of a temporary safe haven visa was invalid.

FRENCH CJ:   Now, that is because it engages the bar under 91K, that if the Minister had simply granted a temporary (humanitarian concern) visa which does not have that consequence, but had the consequence that the plaintiff was out of detention for the term of that visa, would that have had any effect upon the Minister’s obligation to continue the 46A process?

MR LLOYD:   It would not have had an effect on it because it would have constituted a decision under it because if, for example, the temporary (humanitarian concern) visa had have been granted, that would have lifted the bar ‑ ‑ ‑

FRENCH CJ: This is a visa granted without an application. Section 46A conditions the circumstances in which a valid application may be made. Section 195A allows the Minister simply to grant a visa without application, does it not?

MR LLOYD:   That is so, but ‑ ‑ ‑

FRENCH CJ:   That is what he did in this case, as I understand.

MR LLOYD:   He did, and without notice.

FRENCH CJ:   Yes.

MR LLOYD:   But what we say is if he had have granted only the temporary (humanitarian concern) visa, that would itself have constituted a lifting of the bar under 46A and my client could then have, and in fact did make, we say, a valid protection visa application.

HAYNE J:   I think that the proposition you have so far advanced is put perhaps in terms of purposes, certainly in terms of procedural fairness, but I wonder whether it may not require a little refinement.  The plaintiff was detained for the purposes of consideration of the exercise of 46A power.  That, I think, is an agreed fact, is it not?

MR LLOYD:   Yes.

HAYNE J:   I do not think that is going beyond what appears in the special case.  I had understood your argument to include, but not be limited to, the proposition that the Minister cannot by subsequent administrative step preclude himself from exercising the power under 46A. 

MR LLOYD:   That is so.

HAYNE J:   The preclusion that is worked here is maybe, maybe not, on one view of matters the engagement of 91K and there is buried within that proposition a set of further propositions about how 91K and 46A can or should or might march in step but without for the moment pausing to examine that and taking the matter at the best from the Minister’s argument, the Minister would have it, I assume, that the 91K bar applies.

MR LLOYD:   I am sure.

HAYNE J:   I think your argument may include the proposition that the powers given by the Act, whether under temporary safe‑haven provisions or otherwise, are in the events that happen not capable of exercise in a manner that precludes exercise of power under 46A when, by executive act, this man has been detained for, what, two and a bit years?

MR LLOYD:   That is so.

HAYNE J:   For the purpose of consideration of 46A power.

MR LLOYD:   That is right.  I think I was about to just give a reference in relation to the notion that there was a duty to bring the decision to fruition also in M76 and your Honour Justice Hayne’s reasons at paragraph [93].  We say if the Minister were not obliged to make a decision whether or not to exercise then the prorogation of detention would be at the Minister’s unconstrained discretion and we refer again to Justice Hayne’s reasons in M76 at paragraph [93] and also to the joint judgment in M61 at paragraph 64.

While the Minister may have been free not even to consider 46A(2) power, having started on the process we say he was then bound to make a decision under 46A(2) and that is the nub of our second proposition.  Our third proposition is that in making that decision under section 46A(2) he is constrained in part, including in relation to the criteria which the Minister decided to consider.  One constraint is the temporal constraint, which I have already referred to, the need to make a decision reasonably promptly.  That comes out of section 198(2)(c) and the reference there to “reasonable practicability”.  One sees that in M61 at paragraph 25.

Another constraint, we say, although this is apparently contentious, is that the power must be exercised in accordance with the principles of procedural fairness.  We say this Court decided that in M61 at 78.  I note that it seems to be said by the Minister that that has gone by the by with the decision in S10, but we say that when one looks at S10, the class of plaintiffs in S10 who were not entitled to procedural fairness in respect of 195A were in a different category to my client, and it was their features of having been through the whole process that led to the view that the legislation excluded procedural fairness to them, whereas my client is essentially in the same position as the plaintiff in M61.

In relation to the proposition that the Minister is bound to have regard to the same criteria that applied at the start of the process, we would respectfully adopt the reasons of Justice Hayne in M76 from paragraphs [88] through to [103], which explains why that should be so.  We do not apprehend that that is inconsistent with the decision in M61, while the other Judges of the Court in M76 did not adopt that reasoning, but nor, we say, was it rejected.

FRENCH CJ:   Can I just take you back for a moment to your response to my question about the effect of the grant under 195A of a temporary (humanitarian concern) visa?  You said that would constitute a lifting of the bar under 46A.

MR LLOYD:   Yes.

FRENCH CJ:   Now, 46A(2), the lifting of the bar is a process by which the Minister:

by written notice given to an unauthorised maritime arrival, [determines] that subsection (1) does not apply to an application by the unauthorised maritime arrival for a visa of a class specified in the determination.

Am I reading that wrongly when I conclude that that process which may contemplate an application for a permanent visa – that is to say, a protection visa – is not concluded in any way by the grant of a temporary visa under a different power?

MR LLOYD:   The reason why I have said that it is lifting the bar is because if your Honour sees the bar in 46A(1):

An application for a visa is not a valid application if it is made by an unauthorised maritime arrival who:

(a)      is in Australia; and

(b)     is an unlawful non-citizen.

FRENCH CJ:   You say he ceases to be an unlawful non-citizen?

MR LLOYD:   He is made to be a lawful non‑citizen when he gets the temporary (humanitarian concern) visa.

FRENCH CJ:   Well, it is not lifting the bar.  It is just the case that 46A no longer applies to him.

MR LLOYD:   Indeed.

CRENNAN J:   It is rendered otiose, is it not, by the circumstances as they play out if the humanitarian concern visa alone is granted under section 195A?

MR LLOYD:   All the Minister has done is perhaps avoid noting to Parliament that he has ‑ ‑ ‑

FRENCH CJ:   He is a lawful non‑citizen for the next three years.

MR LLOYD:   That is so.  So he is no longer subject to 46A(1) but because of the temporary safe haven visa, if it be validly granted ‑ ‑ ‑

FRENCH CJ:   Is it right to say that he never loses his status as an unauthorised maritime arrival?

MR LLOYD:   That is my apprehension of how the Act works, yes.

HAYNE J:   It is not unimportant to notice, is it, that 46A engages with applications, 195A does not?

MR LLOYD:   That is true.

HAYNE J:   Therefore, this metaphor of “lifting the bar” should not be permitted to obscure the precise operation of 46A which is to permit an application.  Is that right?

MR LLOYD:   Yes, that is true, and ‑ ‑ ‑

HAYNE J:   In particular, 195A, which is not dependent upon application, on one view of the matter, works in an at least slightly different, perhaps radically different, field of operation.

MR LLOYD: That is so. So we say that while the Minister could determine what aspects of the public interest he would consider at the start of the process, he could not modify these aspects after the process had started. To do so would be to allow the Minister to prolong the tension in, effectively, an unconstrained way. The Act should not be construed as authorising this and in the context of the present case we say the POD process created by the Minister, that the Minister was bound to take into account as a relevant consideration that Australia’s international obligations referred to in section 36(2) were enlivened or, at least, to take into account whether they were enlivened and not any matters extraneous to the POD criteria.

KIEFEL J:   Well, would you say the Minister did take into account extraneous considerations and if so what?

MR LLOYD:   He took into account a government policy not to allow permanent protection visas to be granted to, in effect, illegal arrivals or unauthorised maritime arrivals and so in that way ‑ ‑ ‑

KIEFEL J: Can you say this was a part of his reason in relation to the exercise of discretion under section 195A?

MR LLOYD:   Yes, we do say that.

KIEFEL J:   Where do you identify that in the material?

MR LLOYD:   Perhaps I will come to that, if I might, your Honour.  Can I take your Honour to the decision‑making material?

KIEFEL J:   Yes.

MR LLOYD:   Well, very proximately, in fact.  So our fourth proposition is that the Minister accepted that the plaintiff is a refugee.  If I start with
page 188 – this is not the Minister’s decision, this is the assessor’s decision and at about lines 37 and following, we see the assessor making a decision that the protection visa obligations are engaged.  We accept, of course, that the Minister is not bound to accept that and he can come up with his own view, make his own inquiries and, subject to according procedural fairness, he could have come to a different view.

However, on the facts of this case, there is no reason to doubt that he did accept it.  On page 197, which is the submission to – perhaps, if we could be pardoned to go back slightly further in time and to answer your Honour Justice Kiefel’s question.  On page 191 there is a submission to the Minister from the Department.  It gets its context from, one can see, in paragraph 1 on page 192, that:

On 4 December 2013, you –

That is the Minister –

made an announcement concerning, among other things, the exercise of your power under s 46A of the Migration Act to prevent anyone who had arrived illegally by boat from making an application for a permanent Protection visa.

Now, if I stop there and say when these proceedings began, that was under an apprehension – now, we accept, a misapprehension – that that was the Minister deciding to end the POD process for my client.  What this submission shows is that the Department was seeking to confirm what his intention was – that is in paragraph 2:

This submission is directed to confirming your intention as to the exercise of your Ministerial intervention powers with respect to Unauthorised Maritime Arrivals (UMAs) who arrived prior to 13 August 2012.

That includes my client.  One can see the Minister’s handwritten answer to that at about line 10:

Reference to 46A bar were in relation to post August 2012 arrival cohort for whom process has not commenced.

So, notwithstanding that one might have read the statement as including my client, the Minister is indicating here that he had not, in December, ended the process.  This submission is dated 4 February.  Over to paragraph 4 on page 193:

Recent High Court cases suggest that the courts would find that you have already commenced considering exercising your power under s 46A with respect to UMAs in the POE cohort –

That is my client’s cohort –

(and possibly also the Single Process cohort).  Accordingly, it is probably now too late to decide not to consider the exercise of your powers with respect to persons in those cohorts.  The question is whether you will decide to exercise that power to permit a valid visa application to be made.

CRENNAN J:   Do you point to paragraph 12?

MR LLOYD: Yes, paragraph 12, I suppose, needs to be read in conjunction with paragraph 13. The decision that is being made here is to continue the section 46A process in respect of my client’s cohort, although there is a reference there to ceasing to deal with them. I think this is a time which the Minister wanted and had attempted to bring in temporary protection visas. No doubt – well, I do not say “no doubt”. One might infer that the thinking was just keep them in abeyance until temporary protection visas are brought in and then I could lift the bar and they could all have temporary protection visas which is the policy of the government.

However, the UMA regulation – sorry, the TPV regulation had been disallowed and the UMA regulation which was not yet on this day disallowed but it did not allow for temporary protection visas so there was then a need for holding people in abeyance until that could be resolved and paragraphs 11, 12 and 13 seemed to go to that issue.

HAYNE J:   That is a submission of some volume, Mr Lloyd, because the submission if it were to be accepted would be a submission that the Minister was countenancing detention at executive discretion.  “I will keep these people as long as I like.”  That is a very large proposition.  If that is the way we should read it, so be it, but I do not want it to slide by on the footing that it is just part of the argument.  It is a proposition of great volume.

MR LLOYD:   Certainly, and we thought that potentially paragraphs 12 and 13 read together was an indication that the Minister was deciding to do what was happening in M79 which is to allow people out of detention but continue the process of determining whether or not to lift a bar to allow for protection visas.  It is an agreed fact that the Minister is not continuing to consider that at all. 

CRENNAN J:   Has not embarked on any section 91L consideration.

MR LLOYD:   No, and I am sure the Minister would say if we asked maybe they will but there is no continuation of the process like there was in M79.

KIEFEL J:   What do you say we actually derive from this document about the Minister’s purposes and reasons?  I mean, because what you have said earlier and which provoked the response from Justice Hayne is rather an extension upon what appears from the words of - in fact, it is difficult to discern just what was intended in relation to the cohort which included your client, at least from my point of view.

MR LLOYD: What we get out of it is, one, is that the December announcement did not constitute an end of the section 46A processing. It was a decision that they continue to be processed under 46A because they believe they had to do so which we would endorse that they did have to do so. Then there is, I accept, a fairly muddled statement in paragraphs 12 and 13 that seems to suggest that at least for some period they should be deferred, the management of them should be deferred until the Minister is ready to proceed with the caseload.

KIEFEL J:   Do you get that from:

we propose to cease the referral of cases to you until such time that you have indicated how you wish to proceed to manage this caseload.

That is the deferral.

MR LLOYD:   That is the deferral.  Having said that, I have to acknowledge that my client was not deferred pursuant to  – well, it might have been deferred pursuant to that earlier but the decision in respect of my client was made on the same day which can be seen on page 196.  Then, one sees on page 197, paragraph 2, a reference to my client having been found to be owed protection obligations.  That is, effectively, repeated again in paragraph 14.  While I am here it is convenient to – it comes back to other issues later – but to draw the Court’s attention to paragraph 8 of this document.  It says:

Granting the Humanitarian Stay (Temporary) visa (subclass 449) at the same time as the Temporary Humanitarian Concern visa (subclass 786) imposes a 91K bar, which will prevent [my client] from applying for a visa other than another subclass 449 visa, unless you lift that bar.

So we say that means the Minister knew and intended that that would have that effect.  He was specifically told it would have that effect and it was done to advance the Minister’s policy of not granting permanent protection visas to people to who have arrived illegally.  I note the next sentence:

The subclass 449 visa will remain “out of effect” ‑ ‑ ‑

KIEFEL J: Do you say that the purpose indicated in paragraph 8 falls within the public interest criterion for section 195A? There is issue joined, as I understand it, on that question.

MR LLOYD:   Yes, well, we certainly do not say it does, but our principal objection – we have two principal objections.  One is that by making this decision for the exact purpose of saying this guy is a refugee, you would have to life the bar - to give him a protection visa but you can get out of it by giving him this temporary safe haven visa.  So we say that that shows that this decision amounts to what we say is an unlawful decision to end the 46A process.

KIEFEL J: What do you say about its consistency with any purposes permitted under section 195A?

MR LLOYD:   Because it is an unlawful decision we would say it could not be in the public interest to make an unlawful decision.  So to that extent at least it has to be outside the ambit of ‑ ‑ ‑

KIEFEL J:   Why is it unlawful?

MR LLOYD:   Because at this point of time, if my previous arguments are accepted, the Minister has started a process of consideration.  He is bound to continue that and to consider it only on the criteria that are specified at the beginning which is essentially, for present purposes, whether or not my client is a refugee.  If he accepts that my client is a refugee he is bound, we say, to lift the bar to allow him to apply for a protection visa application.  What he is doing here is deciding not to lift the bar.

CRENNAN J:   Is there an inconsistency point in here?  Apart from your timing point about 46A that consideration has been embarked upon, is it part of your argument that the strategy identified in paragraph 8 here is inconsistent with what the legislature has provided in section 47A(2)?  Is that part of it?

MR LLOYD: Section 46A(2), yes. We say that, and the implication probably arises out of section 198 rather than 46A, the extent to which you can hold someone in detention, but we do say that it is unlawful because it is against the requirement to bring what I call the POD process to an end. The other point I would seek to make from this paragraph is that it says:

The subclass 449 visa –

that is the temporary safe haven visa –

will remain “out of effect” during its one week validity –

Now, it is not clear what that even means, although it does ‑ ‑ ‑

KIEFEL J:   We are just mumbling to ourselves what does that mean.

FRENCH CJ:   It is a bit hard to work out what that means.

MR LLOYD:   What we apprehend it means is that there is a notion under the Act which gets most of its voice in section 82 about when a visa ceases to be in effect, and although this may be inconsistent with an aspect of M79 which we are not particularly taking issue with, there might be thought to be an implication from section 82(2) that with the exception of special purpose visas expressly mentioned in 82(2) and the visas mentioned in 82(2AA), you cannot have two substantive visas at the same time.  Now, it seems that the department seems to accept that, but then they have decided ‑ ‑ ‑

FRENCH CJ:   Which is one ceases to be in effect.

MR LLOYD:   ‑ ‑ ‑that one ceases to be in effect.  It is not clear how they get to that position.  It may be that both the visas are invalid simply because you cannot grant two visas at the same time simultaneously because ‑ ‑ ‑

HAYNE J:   Why am I put in mind of Justice Dixon’s reference to circuitous means, Mr Lloyd?  It is just a random thought, is it, that comes across my mind?

MR LLOYD:   Well, it is clearly all designed to keep a bar on people applying for protection visas and that is what we say is unlawful.

HAYNE J:   I just go back over this part of the argument to understand it better than I presently do.  It seems to me there are at least three points being made, possibly more.  The general proposition from which you begin is that detention in immigration detention is detention for the purposes of the Act.  So much is relatively uncontroversial, I would have thought.  Two, your second step entails, I think, or is rather, that there was detention here to permit a decision under 46A whether to permit the making of a valid application for a specified class of visa.

MR LLOYD:   That is so.

HAYNE J:   You observe that the only class of visa that was being spoken of at relevant times was a protection visa.  I am not sure whether that observation is a necessary part of the proposition or simply an observation along the way.  But the third step in your argument I understand presently to be that without making any decision whether to permit a valid application under 46A for a visa of a specified class there is release from detention subject to a different bar to the making of a valid application, and you say that steps two and three cannot stand lawfully together in the lawful administration of the Act.

MR LLOYD:   We do say that, although we would also put it a slightly different way as well, which is that insofar as the granting of the temporary safe haven visa amounts to the continuation of a bar from my client applying for a protection visa, that amounts to a decision not to lift the bar.  At least in substance, it is materially the same, and we say that if the Minister was bound to make a decision by reference to the criteria he specified at the beginning, that is unlawful because he must have taken extraneous material into account.

The last point I was going to make in relation to this, I think, fourth heading about whether the Minister accepted that the respondent was a protection visa; it will be put against us that the Minister does not personally say that, and I think it is put against us that the Court should not be satisfied.  But we do note that when he was granted the temporary safe haven visa and the temporary (humanitarian concern) visa, he was sent a letter at page 249 that had, as can be seen on page 251, a temporary protection fact sheet, and that fact sheet is, we say, clearly premised upon the idea that somebody who is granted this temporary concern visa has been recognised to have engaged Australia’s protection obligations.  One sees that, for example, at about lines 12 to 15, and even down at about line 31:

Your claims will need to be reassessed before your visa expires to determine whether you still need Australia’s protection.

We say that the Court can comfortably draw an inference on the special case that the Minister accepted that the plaintiff is a refugee, and certainly the Department thought as much as well.

Our fifth proposition is that having accepted that the plaintiff was a refugee, the Minister was, in the circumstances of this case, obliged to lift the bar to allow a protection visa application.  We say that this is a case akin to that in the decision of Commissioner of State Revenue (Victoria) v Royal Insurance Australia 182 CLR 51, and we draw attention in particular to a passage from Justice Brennan at page 88. After a quote from Julius v Lord Bishop of Oxford in the middle of the page, his Honour says:

The Commissioner is a public officer vested with a power to be exercised for the purpose, inter alia, of discharging her liabilities.  When the power exists and the circumstances call for the fulfilment of a purpose for which the power is conferred, but the repository of the power declines to exercise the power, mandamus is the appropriate remedy even though the repository has an unfettered discretion in other circumstances to exercise or to refrain from exercising the power –

So in that case it was seen as being appropriate, in effect, to order that the money be repaid. One can see something similar from Chief Justice Mason at the bottom of page 80 over to 81. We say here if the Court accepts the first four propositions, then there is no reason why the Minister was not bound, including enforceably, by mandamus to raise the bar under section 46A(2).

HAYNE J:   Well, implicit in that there may be – and this needs to be exposed – there may be a proposition implicit in that that there is an irreconcilable inconsistency between deciding to consider exercising the power under 46A to lift the bar, as you say, and implementation under the heading “public interest”, of a general policy never to grant protection visas to UMAs.

MR LLOYD:   Well, yes, I mean, the whole premise of section ‑ ‑ ‑

HAYNE J:   If that is implicit in it, why should – first, is there the inconsistency, if there is the inconsistency, what follows from observing it to be inconsistent?

MR LLOYD: In terms of the inconsistency, section 46A does two things. One is, it says that a UMA cannot apply for any kind of visa, and secondly, it allows the Minister to waive that constraint. The inconsistency, in a sense, is that under section 195A, in order to pursue the object of having these people not make protection visa applications – or permanent protection visa applications – he grants the temporary safe haven visa to preclude the exact thing which the power under section 46A is to waive the constraints so that kind of application could be made.

CRENNAN J: Is it part of your argument that there is only one way in which the discretion could be exercised under subsection (2) of section 46A? Does that feed into the mandamus argument?

MR LLOYD:   It does.  We put our mandamus argument at two levels.  One is, we say, on the basis that the Court should accept that the Minister found that my client was a refugee, thereby meeting the criteria the Minister had decided to set out for raising the bar in the public interest, then the public interest criterion was met, and the Minister was bound to make a decision only by reference to those criteria, and that criteria having been met, it should be made.

CRENNAN J:   So there was only one decision possible in the exercise of any discretion?

MR LLOYD:   That is what we say, but as an alternative we say, at the very least, if we are wrong about that, then the Minister at least had to decide – or has to decide – whether to raise the bar, and if the Court is not satisfied, for example, that it can draw an inference that the Minister decided that my client is a refugee, then he should be compelled to make a decision in accordance with law, which would limit him to deciding whether or not to lift the bar, but the Minister would be free to reassess for himself whether my client was a refugee.

FRENCH CJ:   But that does not conclude the question whether your client would be granted a protection visa, because there are other criteria – I know that some of them are dealt with under the POE process – but there is 866.222 is there not, the ‑ ‑ ‑

MR LLOYD:   I did not mean to suggest – if I said that, I was wrong – I did not mean to suggest we would get mandamus to get a protection visa, just mandamus to be allowed to apply for a protection visa ‑ ‑ ‑

FRENCH CJ:   I am looking at the consequence of what the Minister – what you attribute to the Minister in terms of his acceptance.  Acceptance that your client is a refugee is acceptance of some, but not all, of the criteria for the grant of a protection visa.

MR LLOYD:   We accept that.  The only mandamus we seek is – well, there is two, but the principal one is that the Minister is bound to make a decision under 46A(2) to avoid using the “lift the bar” language, that would allow an application for a protection visa to be made.  That is the highest we put it.  The second tier we put it is, if the Court is not satisfied that it can say that the Minister was satisfied that my client is a refugee, then it should be at least remitted to the Minister to fulfil his duty to finish off the 46A process and if he wants to decide my client is not a refugee, then so be it.  We will not be able to stop that.  We say he has already accepted that.

KIEFEL J:   Just in terms of orders that could or should be made, do you accept that whilst the temporary safe haven visa is in place that the Minister cannot proceed under 46A or, as I understand your argument, you are saying that the 46A process can still be undertaken.

MR LLOYD:   In relation to the relief we seek, there is a point I have not come to yet which is a question of severability.

KIEFEL J:   Yes.

MR LLOYD:   If the temporary (humanitarian concern) visa is valid, my client has already made a protection visa which I think is not in dispute, would be valid.  If the temporary safe haven visa was invalid, then the relief we would seek is a mandamus to compel the Minister to consider that application.

If, however, the two visas are seen to be not severable, then we say we are back into a position where the two grants, if our case is otherwise accepted, the grant of the two visas were both invalid and so then the obligation on the Minister, under the 46A process continues, and he should be bound to make a decision in accordance with that.

FRENCH CJ:   Your client would have to go back into detention.

KIEFEL J:   Yes.

MR LLOYD:   My client is aware of that.

KIEFEL J:   So that would strengthen your position under 46A for a prompt determination, I suppose, but it has other down sides.

MR LLOYD:   Well, one would think the Minister has had a thorough look at whether my client is a refugee, so we would not anticipate he would have to be in detention for a huge period of time.

FRENCH CJ:   Well, it is only if the temporary (humanitarian concern) visa is invalid that your client is then an unlawful non‑citizen for the purpose of the application of 46A.

MR LLOYD:   That is so.

FRENCH CJ:   If it is valid, and the temporary safe haven visa is invalid, you say you are not affected by the 91K bar ‑ ‑ ‑

MR LLOYD:   That is exactly so.

FRENCH CJ:   ‑ ‑ ‑ and you can make your application.

MR LLOYD:   I was just going to also draw your Honours’ attention on page 253 of the book at about lines 23 to 25, there is a reference there to the government’s policy, which we say informed the approach:

Can I still apply for a permanent protection visa?

No.  The government has stopped granting permanent protection visas to anyone who arrived illegally by boat or plane.

I think your Honour Justice Kiefel asked where one sees an example of that policy.  That is in the document they send to us.

The next heading which I have to a certain extent already covered is that the grant of the temporary safe haven visa constituted a decision to refuse to lift the bar and to allow the making of the protection visa application which was unlawful. I think I have covered that. We accept that there may be instances where granting a temporary safe haven visa would not be unlawful if there was an obligation to continue to consider lifting the bar if the Minister was accepted that my client was a refugee, but it is agreed that the Minister is not doing that and so that is why we say this decision, as shown by the reasoning in the submission to the Minister itself, is clearly a refusal under section 46A to lift the bar.

HAYNE J:   The metaphor has taken over the argument about lifting the bar here, Mr Lloyd.  There has been an exercise of power under 195A, that is either valid or not valid.  How does it become an exercise of another statutory power?  Are you in danger of having your argument strangle itself on its own complexity?

MR LLOYD:   I certainly do not want to do that, your Honour.

HAYNE J:   I am only one voice, Mr Lloyd, you have got to get three.

MR LLOYD: Indeed. We put it terms that the Minister should be inferred to be intending that the decisions he make have the legal consequences that they have. A legal consequence of the decision under section 195A is that my client is not able to make an application for a protection visa which, we say, prior to the grant of the visa he would have been entitled to.

CRENNAN J:   Even given all of that, you do not have to go the distance of saying that is tantamount to a refusal under 46A(2).  You simply do not have to take that step, do you?

MR LLOYD:   I am content with saying I do not have to go that far.  We say, at least, in a practical matter, it amounts to that as well.  It has perhaps relevance in relation to the procedural fairness point that we make, which is to say if we are right then prior to the grant of the temporary safe haven visa, my client was – at least at the moment the Minister accepted that he was a refugee entitled to have a favourable 46A(2) decision made in his favour.  The granting of a temporary safe haven visa, if it might otherwise be lawful, would have taken that away.  I mean, in the respondent’s case or defendant’s case, that was taken away. 

We say that, at least, was something my client was entitled to procedural fairness in respect of.  They say there is nothing we could have said that could have made a difference.  We say that the Court should not accept that proposition.  Apart from anything else, the Minister’s decision contained an important factual error, what I say is the legal – a jurisdictional error, but it is the kind of thing which my client could have pointed out.

So, for example, on page 200, when the Minister decided to make the decision he acted on the basis of what was in the draft instrument.  One sees the draft instrument is put before him on page 199 as Attachment A.  The draft instrument says that my client was a citizen of - the country of nationality of “Myanmar”.  But my client – it is uncontroversial – was a stateless person.  So we say that is the kind of thing - if we had been given procedural fairness, we could have pointed out to the Minister that it may be different.  Maybe he would have given different visas.  We say that it cannot be assumed that the Minister would not take that kind of matter into account and so we were denied procedural fairness.  So that is a second way, we say, that the grant of the temporary safe haven visa was invalid.  I should say we also rely upon our written submissions on the denial of procedural fairness point at paragraphs 65 to 69 in‑chief and 14 to 18 in reply. 

Then the last matter is the question of severability of the two visas.  If the Court be accepting that the temporary safe haven visa was invalid for either of the reasons, or any of the reasons we have put forward, then the question arises whether or not the other visa granted is invalid.  What we say in respect of that is that section 46(2) of the Acts Interpretation Act is engaged.  Perhaps, starting at 46(1), it provides that in relation to – what I might summarise as administrative instruments:

instrument that is neither a legislative . . . nor a rule of court, then:

(a)      this Act applies to any instrument so made as if it were an Act and as if each provision of the instrument were a section of an Act –

Then, 46(2) says:

If any instrument so made would, but for this subsection, be construed as being in excess of the authority’s power, it is to be taken to be a valid instrument to the extent to which it is not in excess of that power.

We say that the instrument, insofar as it granted the temporary (humanitarian concern) visa, was not in excess of power.  Then, it is put against us that, well, that is all subject to contrary intention.  One can see that at section 2(2) of the Acts Interpretation Act which says:

This Act applies to all Acts . . . 

(2)However, the application of this Act or a provision of this Act to an Act or a provision of an Act is subject to a contrary intention.

To make that apply to 46(2) one has to accept – well, it takes some difficulty but let us assume even that it does apply to 46(2) because 46(2) is this Act and when it says, “to an application of the Act” then by reason of 46(1) that means also to an instrument.

So accepting that “contrary intention” appears, then we say that one has to find the contra intention in the same way as one would for a statute, which is to say look for an objective contra intention on the instrument concerned, and that is generally done by showing how one or more provisions of the remaining part of the instrument would operate differently than if the invalid bit was not held to be invalid, and that is how one gets to the notion that there is an objective contra intention. 

In the circumstances of this case, we say the temporary (humanitarian concern) visa only has – the only effects of it are in section 29(1) of the Migration Act which is it allows somebody to enter and to remain lawfully.  Those effects are exactly the same whether or not the temporary safe haven visa is valid or invalid.  I accept the temporary safe haven visa – it obviously – the effect of it does not apply, given its invalidity, but that is not a reason for saying that the remaining parts of the instrument operate differently. 

They operate, we say, exactly as they would operate.  That is reinforced by the apparent intention, if it be proper to look beyond the instrument, that the temporary safe haven visa not even be in effect which shows that the temporary (humanitarian concern) visa was doing – its work was unaffected by that.  I accept that that leads to a result which the Minister did not subjectively intend and we accept that there is an agreed fact that the Minister did not subjectively – he would not have done it but ‑ ‑ ‑

CRENNAN J:   Paragraph 26.

MR LLOYD:   That is paragraph 26, but we say that that is not the test, whether he subjectively would have done it, in the same way it is not the test for a statute whether Parliament subjectively would have done it.  It is whether an intention can be discerned for the language of the instrument.  There is nothing in the instrument on page 200 which provides any support for the view that if one of the visas was invalid the whole should go down.  So we say that the temporary (humanitarian concern) visa remains valid. 

We have in our submissions – sorry, we have in the Court book, not the special case book but the Court book, there is a copy of what are called our proposed statement of claim and on page 17 of that we have set out the relief that we seek which has a couple of alternatives depending upon which, if anything, the Court accepts and we say that we seek the relief as stated in those paragraphs.

FRENCH CJ: Now, just coming back to your primary proposition, the plaintiff was detained for the purpose of determining whether he should be permitted to apply for a permanent protection visa pursuant to the process contemplated by section 46A and that the Minister could not lawfully terminate that process without completing it by the mechanism of releasing him pursuant to the grant of a temporary visa, or two temporary visas.

MR LLOYD:   We do not say that the Minister could not release him.  If the Minister released him by granting any visa other than a temporary safe haven visa that would ‑ ‑ ‑

FRENCH CJ:   That would allow him to – yes ‑ ‑ ‑

MR LLOYD:   That would allow him to make an application – so that would, in substance, be to make a favourable decision.  We do not suggest that would be unlawful.

FRENCH CJ:   Well it is the temporary safe haven visa which is the critical aspect of ‑ ‑ ‑

MR LLOYD:   Even then it is a temporary safe haven visa in a context where the Minister has indicated he is not going to continue the process of allowing us to apply for a protection visa if we are a refugee.  May it please the Court, they are our submissions.

FRENCH CJ:   Yes, Mr Donaghue.

MR DONAGHUE:   Your Honours, the oral outline you have just been handed shows that we propose to address our oral submissions in four parts.  It also shows that the parties view the way that the Court should analyse the issues that arise in this case very differently, and so the order in which we will look at the issues is different to the order that Mr Lloyd has just adopted. 

The reason that we say your Honours should view the case in the way that we suggest is that it is clear, in our submission, that the only power that was exercised in this case was the power granted by 195A of the Act.  So we submit that that is the appropriate place to start.  Your Honours should look at what was done as a matter of fact, what power was relied upon, and then identify the limits on that power, and unless there is a relevant limit on that power, the visas that are granted should be held to be valid, and that would be the end of the case, we submit.

HAYNE J:   Not quite wholly right, is it, to say that the only power exercised was 195A?  This man was detained for the purposes of considering whether a decision – what decision was to be made under 46A.  Is that not so?

MR DONAGHUE:   Your Honour, can I answer that in this way – the answer is yes, in a context.  The context is this.  This man was detained, in our submission, because he is agreed to be an unauthorised maritime arrival who was therefore required to be detained by 189 for the duration specified in 196, one of the relevant events being removal under 198.  That would have required his removal had there been a country to which it was reasonably practical to remove him as soon as was reasonably practicable, but, as your Honours held in M61, that endpoint accommodates a process of inquiry made for the purposes of 46A, and for a period of time – and this is why I say yes to your Honour – for a period of time the statutory framework that I have just summarised accommodated the making of inquiries directed to that power, which was never exercised, ultimately.

HAYNE J:   Is it not plain from the special case that this man was never held for the purposes of removal?

MR DONAGHUE:   It is certainly plain and accepted that his detention was able to continue as it did because a process of consideration directed towards 46A ‑ ‑ ‑

HAYNE J:   Why do you cavil with my proposition?  Is it plain that this man was never held for the purpose of removal?

MR DONAGHUE:   I cavil with it, your Honour, because the question of the purpose of detention is, in our submission, ultimately a constitutional overlay or explanation that is applied to the statutory framework so as to ensure its valid operation, and I will come to this.  We would submit that the purpose of detention is a concept that might change from time to time, so long as it changes within the constitutional parameters imposed by Chapter III.  That is all that the purpose of detention means in this context.

HAYNE J:   No, it does not.  It means at least that, but it means more.  It means that the detention is under and for the purposes of the Act.

MR DONAGHUE:   That is so, your Honour.

HAYNE J:   The valid operation of the Act.

MR DONAGHUE:   But there is no officer who needs to have a particular purpose in mind and a particular time in order for the statutory scheme to operate as it does.

HAYNE J:   Do you accept that detention under and for the purposes of the Migration Act does not permit detention at the discretion of the Executive?

MR DONAGHUE:   I do.

HAYNE J:   That, at least from my point of view, is an important starting point for argument and, as at present advised, it seems to me that it is important to observe that this man was detained under and for the purposes of the Act because consideration was being given to the exercise of power under 46A.  Now, is that proposition accepted or disputed?

MR DONAGHUE:   He was detained because the Act required him to be detained.  He was not removed because the Act accommodated the inquiries to which your Honour refers.  It may be that it is a semantic difference ‑ ‑ ‑

FRENCH CJ:   So his detention continued because?

MR DONAGHUE:   His detention continued because, yes.  I do not cavil with the proposition that there was a period of time of a little over two years in which inquiries were undertaken, directed to a possible exercise of power under 46A.  But that possible exercise of power under 46A could at most have led to a decision by the Minister to lift the prohibition that 46A(1) otherwise imposed on the making of a valid visa application.  That was the best possible outcome that could have followed from that process. 

When he was granted a visa and became a lawful non‑citizen, the 46A(1) bar ceased to apply, not because there was a decision made to lift it, but because it just became otiose because that bar only applies to an unlawful non‑citizen. That did not require any exercise of power under section 46A. There was just a different provision of the Act, subject to its own turns and constraints, that meant that there was no longer any process to which 46A could be directed because there was no bar under 46A any more at that point in time.

So the reason I cavil with what your Honour the Chief Justice put to me is that while it did bring that process to an end, it did not just do that.  In our submission, this is a power to get people out of detention and that is what it did.  It got him out of detention for three years.  In our submission, it is important not to lose sight of that.

FRENCH CJ:   I am just reacting to your use of S10 in its application to the question of procedural fairness in the exercise of these powers and your application of that to this situation.  It just seems to me to be ‑ ‑ ‑

MR DONAGHUE:   I understand what your Honour is putting to me there and my answer to that is that in paragraph 100 of the judgment, as we read it, what is put is put not by reference to the factual circumstance that an application had been made in these cases but as a general conclusion about the statutory construction of these provisions of the Act.  Because of the role that they take in the overall statutory structure, there is, as we read it, subject to the question I am about to come to about unauthorised maritime arrivals, no obligation to provide procedural fairness, whether or not there is an application that has been made for the exercise of the power and that the reasons ‑ ‑ ‑

HAYNE J:   It may be noticed, Mr Donaghue, that in paragraph 100 the conclusion is expressed as:

Upon their proper construction and in their application to the present cases, the dispensing provisions are not ‑ ‑ ‑

MR DONAGHUE:   I am not seeking to get away from that, your Honour, but, in my submission, when one looks down the reasons given in paragraph 99, they are reasons about the construction of the provisions.  They are not dependent on the fact that there had been an application made in this particular case. 

The point that is put against us in relation to S10 is not that procedural fairness might apply in other cases under 195A but that the position is to be distinguished as between offshore entry persons or unauthorised maritime arrivals and others and it is true that that distinction is drawn in the judgment relevantly, we submit, at paragraphs 79 and 80.  It is drawn by reference to, in those paragraphs, a distinction based upon the particular provision of section 189 of the Act that applies to require a person’s detention. 

That basis for the distinction, we respectfully submit, requires some qualification, because if your Honours look at the last two sentences of paragraph 80, it is said that:

there remains the general distinction between s 189(1) and the s 189(3) detainees considered in the Offshore Processing Case.  This distinction is that of any s 189(1) detainee it can be said that the detainee has or could have applied for a visa and on refusal has engaged or could have engaged the review processes of the Act.

We submit that it may be that the distinction between 189(1) and (3) is a shorthand for unauthorised maritime arrivals and others, and if that is what it is then we do not cavil with it, but we do say that it is the case that an unauthorised maritime arrival may have been initially detained under 189(3) when, for example, they arrived at Christmas Island, but many such people are subsequently detained on the mainland, and the distinction between 189(1) and (3) is a distinction based on where you are. 

If the person is in what used to be called an excised offshore place, they would be detained under (3).  When they were on the Australian mainland they would be detained under (1).  So it is not the case, in our submission, that any person detained under 189(1) could have applied for a visa.  There will be such people who are barred by 46A(1) and are thus unable to apply for a visa.

If the distinction is distinction between people to whom 46A applies and people to whom it does not, then our submission shortly put is that there is no reason, having regard to the terms of 195A of the Act, to find that that provision operates differently with respect to offshore entry persons and others.

There are myriad reasons why someone might be detained under 189 of the Act.  It might be because they have never had a visa, it might be because they cannot apply for a visa, it might be they have applied and they are waiting for a decision, it might be that their visa has been cancelled, and the Act simply draws no distinction between those persons.  The power conferred on the Minister is to let anyone detained under 189 out of detention.

So while it is, we submit, readily explicable that one might distinguish between many of these powers on the basis that they are powers where someone has had an opportunity to access the visa regime in the Act – that is certainly the case for 48B, and for 351 and for 417.  It is not the case for 195A.  Therefore, we submit, the reasoning in paragraph 99 would support the same conclusion here as it supported there.

It may be that your Honours do not need to reach any of that because if we are right in the principal submissions I have been making about M61, then this decision did not pick up an adverse impact on the plaintiff’s rights.  He was a person who, yes, had a process under 46A that was being considered, with respect to him.  But that was a process that was liable to termination at any time.  It terminated.  But it was always liable to termination at any time.  All this decision did was give him something he did not have before.  The proposition, in our submission, that the grant of a visa, conferring a legal right to reside in Australia has an adverse impact that attracts procedural fairness is one, in our submission, that your Honours should not accept.

The position, and I think I foreshadowed this submission earlier in answer to your Honour Justice Keane, but the position before the grant of the visa was that he was in detention, he could not apply for a visa unless the bar was lifted, he could ask for the bar to be lifted in the public interest and the Minister could lift it in the public interest if he so sought.  After the grant of the visa he was not in detention, but he could not apply for any other visa unless the Minister lifted the bar in the public interest, that is, the position is it is a different bar – 91K instead of 46A – but in both cases there is a bar, in both cases it can be lifted in the public interest, and because in both cases there was no right to that result, there just was not an adverse impact on his rights.

HAYNE J:   But there was an adverse impact on his interests?

MR DONAGHUE:   No.  For the same reason, your Honour.  That submission depends upon my prior submissions based on M61.

HAYNE J:   I think that is flatly inconsistent with 76 of M61.  I just want to understand the submission.  Your submission is it did not adversely affect his interests.

MR DONAGHUE:   The termination of the process.  The grant of the visa did not adversely affect his interests.  That is my submission.  In my submission it is not inconsistent with M61, because M61 says while your detention is prolonged by this process you must be accorded procedural fairness.  It does not say, in our submission, it says the contrary – that the

process cannot be terminated.  Here, it was terminated in a way that conferred rather than deprived rights.

Finally, your Honours, the special case records that what would have happened if he had been given an opportunity to make submissions is the plaintiff would have said you should give me a protection visa instead of a temporary safe haven visa.  That is what the special case records.  In our submission, your Honours, having regard to the statements of policy recorded in paragraph 33 of the special case, the prospect that without there being any reference to any other distinguishing or differentiating factor that could have taken – could reasonably be expected to take the plaintiff outside of the operation of that policy, there was no prospect – no reasonable prospect that asking to be granted a protection visa instead of a temporary safe haven visa would have made any difference. 

So this is one of those rare cases where on a Steed or Aala‑type situation – because the special case does not say anything to show any reason why the ordinary policy would not have applied your Honours should not conclude that it would have made any difference – it could have made any difference, sorry.  Unless the Court has any questions, those are my submissions.

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

MR LLOYD: My friend at one point said that we got out of the ground of ‑ that the temporary safe haven visa the best that we could have got under section 46A(2). We note the best we could have got under section 46A(2) is that the Minister determined that we can make an application for a protection visa so we did not get the best that we could have got under 46A(2).

It was also said that part of our case was that they could not exercise the power under section 195A and be released from detention. As I sought to make clear that is not any part of our case. I perhaps fell into the trap of using the metaphor about lifting the bar. On the first four propositions of our case what we are really saying is the Minister had to do what is said in subsection 46A(2). So, in substance, the Minister having set up a process of identifying what the public interest aspect he is interested in, if he thinks that it is in the public interest to do so then, what we were saying, in the circumstances of a favourable assessment by the Minister, he then would be compelled to make a favourable determination.

The important point about that is is that the Minister has set up a process and identified what the public interest is that he says he is interested in and, relevantly, what he is saying is “For somebody who is an unauthorised maritime arrival, I think it is in the public interest to lift the bar if you are a refugee”.  That is the aspect of the public interest which, on our case, if he accepted that he was compelled to make a decision based upon that premise, what he did in this case was go to another public interest power and said under 195A “I think it is in the public interest, because you are a UMA who is a refugee, to give you a temporary safe haven visa which stops you from getting a protection visa”. 

So we say having got himself into a position where he was compelled to make a favourable decision under 46A he has made a decision which is directly inconsistent with that public interest.  To that extent, that is why we say – or at least that is one way we put why we say that the 195A power cannot sit with the duty, as we put it.

My friend relied upon Coco and Bread Manufacturers and Love & Peters in relation to severability.  Of course, none of those cases – they were all common law cases.  They did not refer to section 46 or purport to apply it.  On page 58 of the case book, my friend took the Court to a passage where it is said that there are other checks that would have to be made before somebody could have a favourable decision.

We accept that.  But, of course, we note that in the submission to the Minister on page 197, it is noted in paragraph 2 that the plaintiff satisfied the health and character requirements, and in paragraph 9, that he, in effect, satisfied the security requirements.  So, to the extent that there were other criteria, they were also all satisfied, so we say that that is not problematic to our argument.  Then, my friend took the Court to M61 for the proposition that it bound this Court, and for various judgments in M76 to be wrong, perhaps the high point of my friend’s case is in paragraph 99.  It says:

Because ss 46A and 195A both state, in terms, that the Minister does not have a duty to consider whether to exercise the power –

et cetera – the mandamus will not lie.  He says, well, that shows that is a direct determination.  But the reference to “in terms”, we say, is unambiguously a reference to 46A(7).  That is the “terms” that it is referring to.  That is the exact point made in M76, at paragraph [229], where the Court says, in effect:

Section 46A(7) is beside the point.

that there is no duty arising under 46A(7).

So we say that paragraph 99 and, for the same reason, paragraph 70 is not anything which stands in the way or makes aspects of M76 incorrect.  In paragraph 230 – I accept this needs to be read in context – but it says:

The defendant’s reliance –

This is the Minister’s reliance:

upon an alternative basis for non‑referral of the plaintiff’s matter to the minister, namely the existence of the adverse ASIO assessment, is misplaced.  The question whether the minister can halt the process of the decision‑making on the basis of such an assessment, given the provisions of the Act relating to relevant aspects of security, may be put to one side.

Now, I accept that that is not a decision in our favour but, on my friend’s case, M61 has unambiguously determined that the Minister can halt the process at any time, on any basis.  He just does not have to do it any more.  So we say that is a decision, in effect, of the majority given that that their Honours Justice Kiefel and Keane’s reasons were adopted by Justices Crennan, Bell and Gageler – all consistent with the view that M61 has not determined that issue and we say it has not.  We also rely upon what we say in our reply at paragraphs 9 and 10.  In relation to paragraph 77 of M61 which gets picked up and possibly expanded in the SZQDZ decision, it is said:

Because the Minister was not bound to exercise power under either s 46A of s 195A, no matter what conclusion was reached in the assessment or review, it cannot be said that a decision to consider exercising the power affected some right of the offshore entry person ‑ ‑ ‑

KEANE J:   To a particular outcome.

MR LLOYD:   To a particular outcome, indeed.  That is, we say, because – obviously I did not make sufficiently clear – but we accept that the Minister is not in any way bound by the favourable assessment of an assessor or reviewer.  That just puts it before the Minister to make a decision.  So it is not an essential element of our case that the Minister is bound to have regard to that as a mandatory relevant consideration.  It is the step which brings the matters to him so that he can make an assessment.  If he wants to start afresh the Minister could start afresh.  We do not deny that.  So to that extent we do not consider paragraph 77 or SZQDZ to be materially against our arguments or against them at all.

It is not part of our case that, the process having begun, the Minister has to make a decision in respect of every negative assessment.  So if an assessor or reviewer properly, validly, lawfully comes to the view that the person is not a refugee, under the process they are not meant to refer that to the Minister.  We are not saying that they have to be referred to the Minister.  Our case is that, as we made clear in 2.2 of our outline, it is where a favourable decision is made under the process.  That is what has to be referred to the Minister and that is what gives rise, because it is in that context that further problem arises. 

So you have somebody who has gone through the process, a favourable decision has been made.  It has to be referred to the Minister.  Now, if they say it does not have to be referred to the Minister, is that not scope for the prolongation of detention?  The Minister can just change his mind at that point and say “I do not want to do it any more”, in their view.  We say at that point in time the person is being held in detention for the purpose of facilitating the Minister’s consideration of their case under 46A(2) and it is not correct to suggest that that does not pose any threats for undue or unlawful extension of the detention.  Something was said along the way about issues pertaining to the change of ministers ‑ ‑ ‑

KIEFEL J:   Sorry, do I understand one implication of what you are saying is that if a person continues to be detained where there is a negative assessment, they are being detained for some reason other than 46A(2), perhaps for removal?

MR LLOYD:   Under the process, if they are negatively assessed, they should be removed.  At the end of a negative assessment which has undergone any judicial review if there is going to be any, when that is over they have to be removed.

KIEFEL J:   These are subject to the judicial review processes, but yes.

MR LLOYD:   Indeed.  My friend said something about the change of ministers.  If I just say, we have addressed that in our submissions at paragraphs 33 to 36.  We would say if there was a change of ministers there would be procedural fairness issues if the Minister did change processes.  But in any event, in M76, there had been a change of ministers between the beginning and later stages of that process, not a change of government, but still a change of ministers, so we say there is no reason to distinguish the reasoning in M79 on the basis that there could be a change of ministers.

My friend also said that because we could still seek a favourable decision under 91L, we are not in a worse position. We would say even apart from our argument that we are because we were entitled to have a decision made by the Minister under section 46A, under 91L there is in all likelihood no obligation to record procedural fairness if the person is not in detention - at least the reasoning in M61 would not apply so the plaintiff lost entitlement to procedural fairness when he was taken away from 46A and put into 91L.

In relation to the procedural fairness point just as a matter of first principles we say when 195A is used to grant a temporary safe haven visa it takes something away from the person.  At least, if our earlier submissions are correct, it takes away their ability to pursue the 46A process favourably and so even putting aside the rationale in M61 it would apply. 

Insofar as my friend said that M61 needs to be read as obiter and S10 is ratio but then my friend said of course S10 had errors at paragraphs 79 and 80 so if that error had not been made an even broader view he, in effect, says would have been taken.  If what was said at 79 and 80 was an error that does not mean that a broader view would be taken.  It might be that a narrower would have been taken to be consistent with M61.  So we say the Court should not, in effect, disregard M61 and follow S10 and then disregard the adverse bits to my friend’s case of S10. 

Finally, insofar as my friend posited that all we would have said was that we wanted a protection visa, what is said and what the agreed fact is at paragraph 25 is that a submission would be made in which that would be sought.  It should not be read or understood suggesting that the totality of the submission would be just to say we want a protection visa.  We say that the Court should infer that everything that could reasonably said in support of it would be said, so the Court should not infer that no useful purpose could come of procedural fairness.  May it please the Court, they are our submissions.

FRENCH CJ:   Thank you, Mr Lloyd.  The Court will reserve its decision.  The Court adjourns until 10 o’clock tomorrow morning.

AT 3.33 PM THE MATTER WAS ADJOURNED